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I am not sure that I am going to be entirely helpful to the Committee this evening, partly because, although I was certainly very happy that the YJB survived, I sometimes get a little worried that this House becomes obsessed with the solution to a problem being a commission, a committee, a tsar or some structure outside the problem. I am old fashioned enough to believe that the report to Parliament should come from the Minister and that the Minister should have responsibility. I also profoundly disagree with the disdain that the noble Lord, Lord Ramsbotham, frequently shows for the capacity of public servants to carry out responsible roles.
Lord McNally: I knew that the noble Lord would get to his feet but it is true.
Lord Ramsbotham: I do not in any way disparage civil servants in what they are required to do. I simply point out that it is wrong to use civil servants for things that they are neither trained nor competent to do. That has been my concern all along. They have their place and I absolutely support them and welcome what they do in their own job.
Lord McNally: I am delighted to have that on the record. Their own job includes some of the issues that we are discussing tonight.
I go back to the speech of the noble Baroness, Lady Gould. I understand that my colleague-my noble friend Lady Northover-has visited the Brighton project to which the noble Baroness, Lady Gould, referred and that she firmly endorses the opinion that was expressed about its success. This point also goes back to the position and role of public servants-the people doing this tough job-and the noble Baroness, Lady Stern, gave some graphic illustrations. I was also pleased that the noble and learned Lord, Lord Woolf, mentioned that the people working in our Prison Service do an amazing job in difficult circumstances. Good care and support from staff saves many lives, and many such instances go unreported. In any given month, prisons successfully keep safe approximately 1,500 prisoners who are assessed to be at particular risk of suicide or self-harm.
When people say, "You don't have a women's strategy", I dispute that. I think that we do and perhaps we should shout louder about it. As has been mentioned, my honourable friend Crispin Blunt in the other place is the Minister with responsibility in this area. On 24 January he made a speech to the Corston funders, setting out a report on progress in this area. He set out
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In that context, I am afraid that we do not believe that the amendment seeking a published women's strategy is necessary. We also believe that, as I said, accountability for a women's strategy should remain with Ministers. Perhaps they are better placed to influence policy across Government and we will ensure that other departments play their part too in supporting vulnerable women in the criminal justice system.
9 pm
Any women's strategy should be sufficiently flexible to respond to changing circumstances and new priorities, especially as we move towards more locally devolved commissioning to ensure provision is integrated into local services. To ensure that this momentum is maintained, we are working across government as well as with the voluntary and community sector to ensure that offenders receive treatment for their mental health, substance misuse and other health problems in the most appropriate setting, building on the work of the noble Lord, Lord Bradley, to roll out diversion and liaison services in all police custody and at courts by 2014. That has already begun. Last month the Minister for Care Services announced a further £20 million towards this objective from the Department of Health for 2012-13.
We are working to ensure that women have a proper opportunity to get off drugs for good. Our plans include the design and implementation of payment-by-results pilots for drug and alcohol recovery, which will provide an ideal opportunity to improve the recovery outcomes for women in the criminal justice system. We are working to ensure that prisons place stronger emphasis on drug recovery and better continuity of treatment and care. We will therefore be piloting drug recovery wings at Her Majesty's prisons New Hall and Askham Grange from April this year, with a third women's prison to be identified soon.
We are also ensuring that women who leave prison and claim jobseeker's allowance will have access to the work programme on release so that they have the same opportunities as men, and we are ensuring that services in the community are helping us to deliver effective sentences for women. We are spending an estimated £80 million a year on adult females serving community and suspended sentences and we can see women are doing slightly better than men on these sentences.
The Prisons Minister recently announced that in 2012-13 the National Offender Management Service will continue to fund the vast majority of those community services-some 30 services in total. This amounts to an additional £3.5 million to existing probation trust budgets and will form part of their future baseline funding. To divert resources to create a new commission would, we believe, do little to advance the concerns that exist about the welfare and the distinct needs of women in the criminal justice system. We actively
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To summarise, we have the strategy for women; piloting drugs recovery wings; supporting the Department of Health to pilot and roll out liaison services in police custody and courts by 2014; looking at a number of intensive treatment-based alternatives to custody with the Department of Health, which was raised the noble Baroness, Lady Stern; and working with the Department for Communities and Local Government to support the ministerial working group on homelessness. That includes a scheme led by Crisis to improve access to the private rented sector for women offenders and women at risk of offending. We are also looking at gender issues in making prison a place of work and industry and improving the way in which we deliver learning for women in prison, as part of our work with the Department for Work and Pensions. We are working with Louise Casey to take forward a national programme to tackle the problems caused by our country's most troubled families, as well as working with the Home Office to support women offenders who have experienced domestic violence and abuse. It is simply not true that we have no strategy. Following the Corston report, and following what I think is best practice, we are branching out from a single department across Whitehall to get the best results.
This morning, I read a letter in the Guardian, signed by Juliet Lyon and others, and its final sentence stated:
"With clear strategic leadership and improved accountability, it should be possible to reduce offending by women and to reduce women's prison numbers".
I fully endorse that statement and believe it profoundly. I said the other day in the House that one does not need to visit many women's prisons to see that far too many prisoners should not be there but should instead be dealt with and treated on the outside. That is certainly our direction of travel. I know that I will disappoint some noble Lords by saying that we will not set up a commission or other separate body. However, that does not take away from the fact that we are doing many things in the direction of travel of the Corston report. We are also doing many things on our own initiative to deal with the problem.
Certain questions were asked about various bodies that were referred to. I do not know whether we have renamed them, but I will check. We are certainly continuing a lot of the cross-departmental work. I am also not sure whether the resources are exactly as the noble Lord left them. I suspect that some may have fallen foul of the necessary cuts that my department faced. However, I repeat that we are focusing money where we think that it can be best used. I ask the noble Baroness to withdraw her amendment.
Baroness Gould of Potternewton: My Lords, I thank the Minister for his response. I was fascinated to hear about the many things that he said were happening. However, from what he said I failed to see a strategy
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I thank all noble Lords who spoke, and in particular the noble Lord, Lord Ramsbotham, for agreeing to get together and draft a joint amendment on Report. The Minister said that we would not be satisfied with his answer, and we were not. We will almost certainly come back on Report. Perhaps he thought that our case was not strong enough. We will try to make a stronger case next time. I fail to understand why, despite all the graphic consequences being described, the amendments were not seen a little more sympathetically. I beg leave to withdraw the amendment.
Amendments 182B and 182C not moved.
Debate on whether Clause 121 should stand part of the Bill.
Lord Beecham: My Lords, this is a probing suggestion that the clause should not stand part of the Bill. It relates to penalty notices for disorderly behaviour. The notices were introduced under the Criminal Justice and Police Act 2001. They allow a police officer who has reason to believe that somebody has committed a particular kind of offence-described and listed in the Act as a penalty offence-to issue them with a notice that gives them the option, within 21 days, of either paying a fixed penalty or electing to be tried for the offence. If they do neither, they become liable to a higher penalty. The notices are designed to deal with offences of disorder. The Act includes references to drunk and disorderly behaviour, possession of cannabis, petty retail theft-I am not sure how that is defined-and causing criminal damage.
Noble Lords might think that this is somewhat reminiscent of one of Tony Blair's less successful inspirations, by which offenders might be marched to the nearest cashpoint and compelled to force it to disgorge a certain amount of money at the behest of a police officer. That is not quite the way in which the system works. The current analogy of what Tony Blair suggested might be bankers who treat their banks' assets as something like a cashpoint and come away with considerable sums of money without any penalty being imposed-but that is by the way.
Clause 121 and Schedule 20, with which it is linked, contain some interesting changes to the original scheme. They confer power on chief officers of police to set up a scheme in their area which would allow police officers to issue penalty notices not just, on this occasion, with a fine, but with an education option under which the offender-or the person suspected of having committed an offence because an offence does not have to be proved-would have the chance of avoiding the fixed penalty or court proceedings by undergoing an educational course for which he then pays the appropriate fee. This is somewhat reminiscent of the debate we had around the proposed scheme in London in relation to alcohol, but it is discrete. It is an analogous proposal. It is an interesting idea that such a course might be a suitable alternative to a financial penalty or court proceedings. Perhaps the noble Baroness will be able to say tonight
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I have a slight reservation that this is left to chief officers of police, so we can presumably have the same situation, the same set of circumstances, in two adjoining force areas and an entirely different way of dealing with matters. I do not know whether the Minister will indicate whether she is content that this matter should be left entirely to the discretion of chief officers or whether it might be government policy eventually, perhaps having trialled the thing, to see whether it might be rolled out in a more systematic way.
Certainly, it is a welcome innovation to look at more constructive ways of steering people away from, in this case, disorderly and relatively minor criminal behaviour without the more drastic consequences of punishment through the courts. Nevertheless, there are some issues that arise with this proposal. First, I should welcome the fact that the notice cannot be given to a person under the age of 18, so we are dealing with adults only. However, there are some reservations about other aspects of the proposals. The first is the requirement that the police officer issuing a notice to an individual other than at a police station must be in uniform. In other words, a police officer out of uniform will still have that power to give a notice. I think that that is not good practice. It is something that I invite the Government to explain. It might be regarded as a matter of convenience, but if we are talking about disorder, if somebody who says he is a police officer and is not in uniform hands out a notice, one can envisage circumstances developing in a way that is not intended. In other words, there might be resistance to an approach of that kind from somebody not in uniform. Obviously, there might be some other evidence of the officer's status, but I do not see that that suggestion is likely to assist in dealing with the matter. The other requirement, and I am less concerned about this, is that police officers currently have to be authorised constables when they are delivering notices in a police station. That would no longer be the case. Perhaps that is less obvious because people are then in police custody and the situation would be clearer.
However, there are some other reservations about these matters. When this was debated in the House of Commons, an amendment was moved by Helen Goodman MP for the Opposition maintaining the obligation of a police officer issuing a penalty notice for disorder to be in uniform and for the actual act of delivering that notice to take place within a police station. That was not accepted, but I would be interested in hearing the rationale for turning down that suggestion.
9.15 pm
Helen Goodman also raised the issue of out-of-court disposals. It is interesting that the Explanatory Note to Chapter 7 of the Bill is headed "Out of court disposals". Liberty has expressed worries about proposals aimed at increasing the use of out-of-court disposals, including these notices, which it believes can be contrary to fundamental principles of justice. It says:
"On-the-spot police punishment without the involvement of the judiciary"
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"Bypassing normal judicial and fair trial safeguards can leave individuals open to bias and irrationality in sentencing decisions".
These are effectively sentencing decisions.
This concern is reinforced by the views of the criminal sub-committee of the Council of Her Majesty's Circuit Judges, which might be thought to have a somewhat different standpoint from Liberty but nevertheless shares some of those concerns. Its report said:
"We have expressed our concerns about the ever increasing use of out of court disposals for what is, in reality, criminal activity for some years. We remain very concerned ... Out of court disposals have, increasingly, been used as a response to truly criminal activity and the general public may have no idea how the situation has developed and the range of matters that may now be dealt with by extra judicial processes ... Until recent years, in our view appropriately, the use of fixed financial penalties has been in relation to offences that might be termed 'regulatory'".
It then looked at the issue of disorder, and went on to say:
"The use of fixed penalties as a response to truly criminal offending is to create the impression that truly criminal offending is not to be treated as significant. We are concerned that this is likely to encourage the belief that crime may not result in retribution and introduce the perception that some criminal activity does not merit proper process or consequences whilst other matters which might be deemed regulatory breach rather than truly criminal activity, result in equivalent or more serious consequences. In the long term, such a policy carries substantial risk. If less serious, but nonetheless criminal activity is to result in similar sanctions to regulatory breach, it is likely to come to be regarded as no more serious. So at the risk of stating the obvious if, for example, theft in a shop"-
and I remind your Lordships that "petty retail theft" is one of the grounds for administering the notice-
- "attracts the same consequence as unlawful parking, it may come to be regarded as equivalent in seriousness. This must have an impact upon the numbers who may be tempted to engage in truly criminal activity".
It is not the same standpoint as Liberty's but it nevertheless touches on a real issue.
Many of us would probably accept the distinction that a fixed penalty for some offences, such as drunk and disorderly, is perfectly appropriate, but when we come to theft and criminal damage, which of course can vary widely in degrees of seriousness, we are perhaps in somewhat more difficult territory. Whether you take the Liberty perspective of there being the need for a proper judicial process for this-rather than people admitting to something because this process offers a quick resolution, whether or not they regard themselves as guilty of it-or whether you look at it from the point of view of the circuit judges as sending the wrong signal about the seriousness of the crime, there is a real issue.
Of course, I will not be pressing this matter to a vote. It is designed to probe. But I wonder whether the Government would envisage reviewing this situation after a period to see what is actually happening on the ground, particularly with regard to the fact that there may be this variation in what chief officers of police may choose to do. We are in new territory and in many ways the thrust of the Government's proposals is sensible, but there are concomitant risks that it would be interesting to hear the Minister's views about.
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Baroness Northover: My Lords, this clause gives effect to Schedule 20, which amends the PND-penalty notice for disorderly behaviour-scheme by giving the police the power to issue adult penalty notices with an education option, to abolish PNDs for under 18s and to remove some unnecessary constraints on a police officer's ability to issue a PND.
PNDs were introduced by the Criminal Justice and Police Act 2001, under the previous Government, to provide the police with a swift financial sanction to deal on the spot with low-level offending. PNDs may be issued for a specified range of offences listed in Section 1 of the 2001 Act. They include being drunk and disorderly, as we have heard, in a public place, low-level retail theft, behaviour likely to cause harassment, alarm or distress, and cannabis possession. I would reiterate that, in relation to the concerns mentioned by the noble Lord, PNDs were introduced by the previous Government.
At present the recipient of a PND has 21 days either to pay the penalty amount or to request a court hearing. By paying the penalty amount-currently £80 or £50 depending on the type of offence-the suspect discharges all liability to be prosecuted for and convicted of the offence, and no admission of guilt is required. If the recipient fails to take any action during the 21-day suspended enforcement period, a fine of one and a half times the penalty amount may be registered against them by the magistrates' court.
Some 76 per cent of adults who received a PND in 2008 did not reoffend within one year. However, we believe that some individuals receiving PNDs would benefit from an educational intervention to reduce the likelihood of them reoffending. That is why we are responding to police requests for suitable PND recipients to be given the option to discharge their liability to conviction of the offence by paying to attend an educational course-where a police force has set up such a scheme-rather than simply paying the penalty amount in full. The noble Lord asked about examples. A number of schemes are operating in various forces, including Hertfordshire where courses are run by a charity called Druglink. It is self-sustaining as offenders pay to attend the courses.
Schedule 20 therefore gives the chief officer of a police force the power to establish an educational course scheme in his or her area and, where such a scheme has been set up, for officers in that area where appropriate to issue penalty notices with an education option. A recipient of a PND with an education option would be able to discharge their liability to be prosecuted for and convicted of the penalty offence in one of two ways. They could either pay the penalty amount in full or pay for and complete an educational course. Of course-I think that this is the key point in answer to the noble Lord-it remains an option to contest their responsibility for the offence by requesting a court hearing. A suspect's failure to exercise any of these options, including paying for a course but then not attending or completing it, would result in a fine being registered against them at court of one and a half times the amount of the penalty.
PNDs with an education option will be offered only if a course has been set up in that area for the specific offence for which the PND was issued and where the
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The schedule confers a number of new powers on the Secretary of State to make regulations prescribing the detail of educational course schemes, including the fees that may be set for a course and arrangements for dealing with non-attendance. In addition, and as part of work to develop a clearer national framework for dealing with adult and youth offending out of court, the schedule abolishes PNDs for under 18s. This will simplify youth out-of-court disposals and enable the police to focus on offering disposals that allow rehabilitative and reparative activities to take place. The aim is to prevent further offending and provide greater redress to victims and communities.
Finally, we are also cutting red tape and simplifying frontline police processes by removing the existing requirements that a police officer issuing a PND outside a police station must be in uniform and an officer issuing a PND inside a station must be formally authorised to do so. Both of these requirements are unnecessary. The uniform provision is particularly problematic in plain clothes operations-for example, test purchasing to tackle underage alcohol sales where officers are forced to bring suspects back to the police station to issue a PND. They would still need to demonstrate that they are indeed police officers. I hope that that reassures the noble Lord that there is a protection.
I think that I have covered most of what the noble Lord raised and I hope that Members of the Committee will welcome these improvements to the PND scheme. I would ask that Clause 121 and Schedule 20 stand part of the Bill.
Lord Beecham: I am grateful to the noble Baroness for her response and the information that she has given. I still think there is potentially something of a problem with dispensing with the uniform requirement, although I do not know what evidence there is that it has caused actual problems. Will the Minister say whether there will be a review of how the system is working in two or three years' time to see if it is operating as intended? What stage are we at in terms of the regulations being drawn up that she referred to? Presumably they will come through under the normal procedure for approval.
Baroness Northover: In terms of review, the Government's position is always to keep legislation under review and to take steps to deal with issues that arise, so obviously if the kind of concerns flagged up by the noble Lord are seen to develop, that would be picked up in any kind of review. I am sure that the regulations coming through will follow the normal procedures and that we will have all sorts of things to consider, but if I am not right about that, I shall write to the noble Lord.
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Clause 122 : Conditional cautions: involvement of prosecutors
Amendments 184 and 185 not moved.
185A: Clause 124, page 106, line 12, at end insert-
"(6A) Within three years of the commencement of this section, the Secretary of State must review and report to Parliament on the operation of youth cautions, in particular, the use of appropriate adults in the cautionary processes and whether it should be extended to 18 year olds.
(6B) At any point following a report being made under subsection (6A), the Secretary of State may by order extend the appropriate adult provisions in this section to a person given a youth caution, where that person is under the age of 18."
Lord Beecham: My Lords, given the time, happily this is a short amendment. The Police and Criminal Evidence Act 1984 established that people under the age of 17 years are to be treated as children and therefore have to be questioned or interviewed in the presence of an appropriate adult, but people of 17 years of age and up to 18 are not treated in the same way. The Government have dealt with what has been an anomaly about treating 17 year-olds as adults for the purposes of bail, and that has now been changed to lift the age to 18. It would seem to be consonant with that approach if the appropriate adult provision was also extended from 17 years of age to 18. This is a straightforward matter and I should say that the Prison Reform Trust, in which I declare an interest as a member of its advisory group on youth offending, strongly urges that this should be dealt with in the same way as the bail situation. Incidentally, the trust extends its thanks and praise to the Government, so if they want another round of thanks and praise, they merely have to accept this amendment. I beg to move.
Baroness Northover: My Lords, how very kind of the noble Lord. Youth cautions are specifically designed for young offenders and the provisions in Clause 124 underline our approach to the prevention of offending by children and young people by providing assessment and rehabilitative programmes through specialised youth offending teams. The noble Lord has flagged up the suggestion that appropriate adult provisions should be extended to offenders above the age of 17.
Work is under way in the Home Office, the Youth Justice Board and the Ministry of Justice to look at the possibility of extending the appropriate adult scheme for all under-18s in the criminal justice system. However, we will need to consider fully the resource implications before any change can be made. At the moment, we
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9.30 pm
Lord Beecham: My Lords, I am not going to divide a thinly attended House at this hour of the night on this issue. What the Minister said is again consonant with the first amendment, which, after all, suggests a three-year period. That should be long enough even for the Home Office to come to some conclusions. However, in the circumstances, I beg leave to withdraw the amendment.
Baroness Northover: My Lords, I shall speak also to Amendments 185C, 185D and 185E. These are minor and technical amendments relating to youth cautions. I beg to move.
Amendments 185C and 185D agreed.
Clause 124, as amended, agreed.
Schedule 21 : Youth cautions: consequential amendments
185E: Schedule 21, page 228, line 21, at end insert-
"Terrorism Prevention and Investigation Measures Act 2011 (c. 23)30 In Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (fingerprints and samples), in paragraph 10(1)(a) (circumstances when an individual is to be treated as having been convicted of an offence)-
(a) at the end of sub-paragraph (ii) insert "or", and
(b) omit sub-paragraph (iv) and the "or" preceding that sub-paragraph."
Schedule 21, as amended, agreed.
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185F: After Clause 127, insert the following new Clause-
"CHAPTER 7ARehabilitation of offendersEstablishment or alteration of rehabilitation periods
(1) The Rehabilitation of Offenders Act 1974 is amended as follows.
(2) In section 5(1)(b) and (d) (sentences excluded from rehabilitation) for "thirty months" substitute "forty eight months".
(3) In the opening words of section 5(1A) (references to provisions of the Armed Forces Act 2006) for "subsection (1)(d)" substitute "this section".
(4) For section 5(2) to (11) (rehabilitation periods) substitute-
"(2) For the purposes of this Act and subject to subsections (3) and (4), the rehabilitation period for a sentence is the period-
(a) beginning with the date of the conviction in respect of which the sentence is imposed, and
(b) ending at the time listed in the following Table in relation to that sentence:
(3) Where no provision is made by or under a community or youth rehabilitation order or a relevant order for the last day on which the order is to have effect, the rehabilitation period for the order is to be the period of 24 months beginning with the date of conviction.
(4) There is no rehabilitation period for-
(a) an order discharging a person absolutely for an offence, or
(b) any other sentence in respect of a conviction where the sentence is not dealt with in the Table or under subsection (3),
and, in such cases, references in this Act to any rehabilitation period are to be read as if the period of time were nil.
(a) section 8AA (protection afforded to spent alternatives to prosecution), and
(b) Schedule 2 (protection for spent cautions).
(6) The Secretary of State may by order amend column 2 or 3 of the Table or the number of months for the time being specified in subsection (3).
(7) For the purposes of this section-
(a) consecutive terms of imprisonment or other custodial sentences are to be treated as a single term,
(b) terms of imprisonment or other custodial sentences which are wholly or partly concurrent (that is terms of imprisonment or other custodial sentences imposed in respect of offences of which a person was convicted in the same proceedings) are to be treated as a single term,
(c) no account is to be taken of any subsequent variation, made by a court dealing with a person in respect of a suspended sentence of imprisonment, of the term originally imposed,
(d) no account is to be taken of any subsequent variation of the day originally provided for by or under an order as the last day on which the order is to have effect,
(e) no account is to be taken of any detention or supervision ordered by a court under section 104(3) of the Powers of Criminal Courts (Sentencing) Act 2000,
(f) a sentence imposed by a court outside England and Wales is to be treated as the sentence mentioned in this section to which it most closely corresponds.
"community or youth rehabilitation order" means-
(a) a community order under section 177 of the Criminal Justice Act 2003,
(b) a service community order or overseas community order under the Armed Forces Act 2006,
(c) a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008, or
(d) any order of a kind superseded (whether directly or indirectly) by an order mentioned in paragraph (a), (b) or (c),
(a) a sentence of imprisonment,
(b) a sentence of detention in a young offender institution,
(c) a sentence of Borstal training,
(d) a sentence of youth custody,
(e) a sentence of corrective training,
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(f) a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 209 of the Armed Forces Act 2006,
(g) a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 or an order under section 211 of the Armed Forces Act 2006,
(h) any sentence of a kind superseded (whether directly or indirectly) by a sentence mentioned in paragraph (f) or (g),
"earlier statutory order" means-
(a) an order under section 54 of the Children and Young Persons Act 1933 committing the person convicted to custody in a remand home,
(b) an approved school order under section 57 of that Act, or
(c) any order of a kind superseded (whether directly or indirectly) by an order mentioned in any of paragraphs (c) to (e) of the definition of "relevant order" or in paragraph (a) or (b) above,
(a) an order discharging a person conditionally for an offence,
(b) an order binding a person over to keep the peace or be of good behaviour,
(c) an order under section 1(2A) of the Street Offences Act 1959,
(d) a hospital order under Part 3 of the Mental Health Act 1983 (with or without a restriction order),
(e) a referral order under section 16 of the Powers of Criminal Courts (Sentencing) Act 2000,
(f) an earlier statutory order, or
(g) any order which imposes a disqualification, disability, prohibition or other penalty and is not otherwise dealt with in the Table or under subsection (3),
but does not include a reparation order under section 73 of the Powers of Criminal Courts (Sentencing) Act 2000,
"removal from Her Majesty's service" means a sentence of dismissal with disgrace from Her Majesty's service, a sentence of dismissal from Her Majesty's service or a sentence of cashiering or discharge with ignominy,
"sentence of imprisonment" includes a sentence of penal servitude (and "term of imprisonment" is to be read accordingly),
"sentence of service detention" means-
(a) a sentence of service detention (within the meaning given by section 374 of the Armed Forces Act 2006), or a sentence of detention corresponding to such a sentence, in respect of a conviction in service disciplinary proceedings, or
(b) any sentence of a kind superseded (whether directly or indirectly) by a sentence mentioned in paragraph (a)."
(5) In section 6 (subsequent convictions to extend the rehabilitation period applicable to a conviction)-
(a) in subsection (5) (exception to rule for certain orders imposing disqualifications etc.) for "in accordance with section 5(8) above" substitute "by virtue of paragraph (g) of the definition of "relevant order" in section 5(8) above", and
(b) omit subsection (6) (other exceptions to the rule).
(6) After section 8A (protection afforded to spent cautions) insert-
"8AA Protection afforded to spent alternatives to prosecution
(1) The following provisions of this Act apply, with the modifications specified in subsection (3), to a spent alternative to prosecution as they apply to a spent caution-
(a) section 9A (unauthorised disclosure of spent cautions), and
(b) paragraphs 2 to 6 of Schedule 2 (protection relating to spent cautions and ancillary circumstances).
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(2) An alternative to prosecution becomes spent for the purposes of this Act when it becomes spent under the law of Scotland.
(3) The modifications mentioned in subsection (1) are-
(a) references to cautions are to be read as references to alternatives to prosecution (and references to cautioned are to be read accordingly),
(b) references to the offence which was the subject of the caution are to be read as references to the offence in respect of which the alternative to prosecution was given,
(c) paragraphs (e) and (f) of paragraph 2(1) of Schedule 2 are to be read as if they were-
"(e) anything done or undergone in pursuance of the terms of the alternative to prosecution,",
(d) references to cautions for an offence are to be read as references to alternatives to prosecution in respect of an offence, and
(e) the reference in paragraph 5 of Schedule 2 to the rehabilitation period applicable to the caution is to be read as a reference to the time at which the alternative to prosecution becomes spent.
(4) In this section "alternative to prosecution" has the same meaning as in section 8B as that section has effect in the law of Scotland but disregarding subsection (1)(f) of that section."
(7) In paragraph 1 of Schedule 2 (protection for spent cautions)-
(a) in sub-paragraph (1)(a) (when conditional cautions to be regarded as spent cautions) for ", at the end of the relevant period for the caution;" substitute "-
(i) at the end of the period of three months from the date on which the caution is given, or
(ii) if earlier, when the caution ceases to have effect; and", and
(b) omit sub-paragraphs (2) and (3) (meaning of "the relevant period for the caution")."
Lord McNally: My Lords, we now turn to a group of amendments which include the reform of the Rehabilitation of Offenders Act 1974. The primary purpose of the Act is to support the effective rehabilitation of ex-offenders. It seeks to support routes into employment while maintaining an appropriate balance towards public protection. It does this by allowing ex-offenders who have stayed on the right side of the law for a certain period not to have to reveal their previous convictions. At the same time, the exceptions order to the Act entitles employers in certain areas of work such as work with children and vulnerable adults, or in certain sensitive financial or legal positions, to see information about spent convictions.
I have received today a letter from Mr Nick Starling, the director of general insurance at the Association of British Insurers, raising some concerns that it had about our proposals. He says in the letter that he would like to meet me to discuss the issues that he raises. I am certainly very happy to do that before Report.
The Act, therefore, is intended to balance public protection with efforts to rehabilitate offenders. However, it has not been reformed since it was introduced 38 years ago. Sentencing practice has become more punitive, but the scope of the Act and the rehabilitation periods have stayed the same. We also aware that studies have shown a positive association between employment and a reduced risk of reoffending. In considering reform, we have considered the responses to the government Green Paper Breaking the Cycle:
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Amendment 185F extends the scope of the Act to include custodial sentences of up to and including four years in length. Sentences more than four years in length will never become spent. We believe that this approach is a sensible and balanced one that extends the scope of the Act but recognises the seriousness of offences attracting custodial sentences of more than four years. Many more reformed offenders will have improved employment prospects, while public protection is maintained.
We are also shortening the rehabilitation periods that apply. Evidence shows that offenders are most at risk of reoffending during the first 24 months after they are released from custody. These new periods take greater account of this evidence so that they are more proportionate to the period of risk of reoffending. However, offenders will still be required to show over an extended period in the community that they can remain free of convictions before being considered rehabilitated. The rehabilitation period for community orders will also be directly linked to the length of the order itself. An offender will first have to complete the order and then remain conviction-free for an additional year.
The table contained in Amendment 185F lists the end date of the rehabilitation period for each sentence. For individuals who are under 18 when they are convicted, rehabilitation periods that run beyond the end of sentence will continue to be halved in relation to adults, with the exception of one. It is necessary to have an additional period of 18 months to apply at the end of custodial sentences of less than six months for juveniles, otherwise, for example, a six-month custodial sentence would become spent before an 18-month community order. It is important that we maintain the requisite balance in dealing with the hierarchy of sentences.
There is significant confusion around what happens when an offender commits a further offence when they are still subject to a rehabilitation period for another. Different rules apply to different types of offences-whether summary only, either way or indictable only-resulting in individuals either not revealing what they should, or revealing too much.
Subsection (5) of the new clause proposed by Amendment 185F, therefore, will introduce a single rule when an offender commits a further offence. All rehabilitation periods applicable at any given time will remain for the duration of the longest rehabilitation period. This reflects the fact that a prolific offender should be required to prove that he has truly put his life of crime behind him before he benefits from the protections of the ROA.
Amendment 185G inserts a new clause into the Bill that exempts immigration decisions from the effect of the ROA. Information about an individual's character and conduct are essential to establishing if an individual should be given permission to enter or remain in the
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Amendment 187ZA introduces a schedule that preserves the position in Scotland as the ROA is a devolved matter. These amendments, other than the immigration and nationality exemption, apply to England and Wales only. The Scottish Government are aware of these reforms and are keeping their legislation under review.
I turn now to Amendments 185FA, 185FB, 185FC and 185FD, in the name of my noble friend Lord Dholakia. Amendment 185FA would extend the scope of the Act so that custodial sentences of up to and including 10 years could become spent. This amendment would, we believe, tip the balance too far away from public protection.
When the Act was first introduced, some 10 per cent of offenders sentenced at the Crown Court were excluded from it. Now that figure is more like 20 per cent. The government amendments increase the scope of the Act to four years, which would mean that around 93 per cent of adult offenders sentenced to custody in 2010 would fall broadly under the Act-a return to the position established in 1974. We do not believe that going beyond that is appropriate given the seriousness of offences that would attract sentences of over four years.
Amendments 185FB to 185FD would see sentences of between 30 months and four years attract a rehabilitation period of four years from the end of sentence, in line with sentences of between six and 30 months. The government amendment proposes a period of seven years from the end of sentence. This recognises that, as offending behaviour gets more serious, it should be treated more seriously. Serious offenders should have to prove for a longer period of time that they are no longer at risk of reoffending before they can benefit from having their conviction spent. If we are to get the balance right towards properly protecting the public, then I believe that this is the right approach.
The final amendment, supported also by the noble Lords, Lord Thomas of Gresford and Lord Carlile, would mean that any offender convicted under the age of 18 would, upon turning 18, have their conviction spent provided they had completed their sentence. The Government recognise that younger people have a greater capacity to reform and change. For that reason, we propose that, for young offenders, the rehabilitation periods that run beyond the end of sentence will in most cases be half that of adults. We believe that is the right approach. We must remember that many disposals for young offenders are spent immediately or on completion of the relevant order. It is the more serious penalties that carry rehabilitation periods beyond the end of sentence. These reflect the period when the risk of reoffending is at its highest.
The Government consider that it is important that offenders of any age should be able to show that they have put their offending behaviour behind them before their convictions meriting serious disposals can become spent. However, under the proposed amendment, the
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I have no objections to my noble friends pressing me to go further on these matters, but politics is the art of the possible. I hope I can persuade my noble friends not only not to press their amendments but to go further and recognise and support our amendments as a significant step in supporting the rehabilitation of offenders. Together with the wider reforms aimed at tackling reoffending in this Bill, they will help deliver the right balance between public protection and the freedom for a person to put their past behind them. This will in turn contribute to a reduced level of reoffending through getting offenders into work. I beg to move.
Lord Dholakia: My Lords, my Amendments 185FA to 185FD would amend government Amendment 185F.
I very much welcome the new clause proposed by my noble friend the Minister, which will amend the Rehabilitation of Offenders Act. As noble Lords are well aware, I have consistently campaigned for changes to the Act for many years, and my efforts have been supported by noble Lords of all parties. Although there has been general sympathy from many quarters for change, my noble friend's new clauses are the first concrete change to the Act for nearly four decades, and I certainly welcome them. The Government's initiative will allow many more people with criminal records to start again with a clean slate and will undoubtedly make a real contribution to the reduction in the number of crimes committed by former offenders excluded from the job market.
I welcome the explanation already given by the Minister in relation to my amendments, but I have no desire or wish to pursue them any further, other than to put forward a point of view that may be different and on the basis of which I have designed my Private Member's Bill. My amendments are designed to go further than the government proposals in two respects. First, they would further reduce the rehabilitation period for sentences of between 30 months and four years. The Government propose that the rehabilitation period for this group should be seven years from the end of the sentence, whereas my amendments would fix that period at four years.
9.45 pm
Secondly, my amendments would enable sentences of between four and 10 years to be spent up to seven years from the end of the sentence. This goes further than the Government's proposals, which would leave offenders with sentences of over four years out of the scope of the Act, so that their offences would never become spent. My amendments are nearer the periods of Breaking the Circle, the review of the Act that was
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The House will recall that in 2001 the then Home Secretary, Jack Straw, set up a review group to examine whether, three decades after the Rehabilitation of Offenders Act, there was a cause for reform. The review group was chaired by a senior Home Office official and included representatives from the police, the probation service, the legal profession, the judiciary, employers and voluntary agencies. In 2002, the review group published its conclusions in the report Breaking the Circle. Following consultation, the then Government accepted a modified version of the review group's proposal in 2003. Under those modified proposals, the rehabilitation period would have been one year for non-custodial sentences, two years for custodial sentences of under four years, and four years for custodial sentences of four years or more. These rehabilitation periods would have applied to all offences except those that resulted in a life sentence. These proposals also received widespread support, not least in many debates in this House, but were never implemented by the previous Government.
My noble friend the Minister's proposals are welcome as far as they go, but they are much more cautious than the modifiedBreaking the Circleproposals. For non-custodial sentences and for sentences of under six months, the Government's proposals follow Breaking the Circle, and I certainly welcome them. However, for those serving sentences of between six and 30 months, the Government propose a rehabilitation period of four years compared with the Breaking the Circle proposal of two years. For offenders with sentences of between 30 months and four years, the Government propose a rehabilitation period of seven years compared with the Breaking the Circle proposal of two years. For those serving sentences of more than four years, that review proposed a rehabilitation period of four years. In contrast, the Government's proposals leave those offenders out of the scope of the Rehabilitation of Offenders Act completely. Their offences will never be able to become spent, however many years they avoid turning back to crime. This is very sad indeed.
My amendments do not go as far as the Breaking the Circle proposals, but they would improve the Government's proposals in two respects. For offenders with sentences of between 30 months and four years, they would reduce the extremely lengthy proposed rehabilitation period of seven years to four years. They would also bring offenders serving between four and 10 years within the scope of the Act, so that their offences would become spent seven years after the end of their period of post-release licence.
I must add that all ex-offenders will still have to declare all their past convictions if they apply for jobs in a sensitive area of work, such as criminal justice agencies, financial institutions and working with young or vulnerable adults. However, my proposals would reduce the degree of unfair discrimination against reformed offenders who have not reoffended for several years and are applying for jobs in areas that are not high risk.
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Why is it important to ensure that offenders with shorter sentences do not have to wait an unduly long time to benefit from the Act, and that offenders with longer determinate sentences can also benefit from it? It is because unfair discrimination against ex-offenders is wrong in principle. It imposes an additional illegitimate penalty of refusing employment to people who have already served a judicially ordered punishment for their crime.
Regrettably, such discrimination is still widespread. Surveys of ex-offenders in Nacro projects-I declare an interest as president of Nacro-have shown that 60 per cent have been refused jobs because of their criminal records. Many of those were non-sensitive jobs, and in many cases employers turned down applicants even though their offences had no relevance to the job for which they were applying. The scope of discrimination is wide because the decisions to employ people or refuse them a job are not made at the top of a company-they are made by a large number of individual personnel staff who usually have had no specific training in how to deal with applications from people with criminal records.
This kind of discrimination does not help to protect the public. On the contrary, it puts the public more at risk because an ex-offender's risk of reoffending is reduced by between one-third and one-half if he or she gets and keeps a job. The whole community benefits when offending is reduced, but employers benefit in particular because crime such as cheque and credit card fraud, shoplifting, the robbery of retail outlets and the burglary of commercial premises have a particularly damaging impact on business.
I hope that the Minister will look favourably on these proposals and see whether they are at all possible in the areas that I have talked about. That would extend the benefits of the Rehabilitation of Offenders Act more widely than the Minister's current proposal. I have one further request: will the Minister examine how these systems could be monitored so that the impact of his amendment could be measured and, if necessary, we could look at further amendments in future criminal justice legislation? I beg to move.
Lord Thomas of Gresford: I congratulate the Government on the amendments that they are introducing into the Bill, which are the culmination of years of campaigning by my noble friend Lord Dholakia-within, and with the support of, the Liberal Democrats-to modernise the law.
Amendment 185FAA, in my name, was suggested by the Howard League, of which my noble friend Lord Carlile is president-unhappily, he cannot be with us tonight. Its purpose is to recognise that children may change in a shorter time than adults, something that the Minister has already recognised in his remarks today. The amendment affects a significant proportion of children with the opportunity to wipe the slate clean upon reaching 18 years of age. It refers to the question raised in the Green Paper that has been referred to: that the Rehabilitation of Offenders Act 1974 be amended so that children convicted of non-serious offences have a clean slate on reaching their majority. Paragraph 117 of the Green Paper says:
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"We would welcome views on how we might do more for young offenders as we are aware that some people are, for example, finding their path to higher education blocked on the basis of juvenile convictions. 'Wiping the slate clean' once the offender reaches adulthood is a possible approach for all but the most serious offences".
There is no reference to this suggestion in the Government's response to the consultation, and I do not know whether any of the respondees actually dealt with the question that was asked.
Wiping the slate clean would have a big impact on the future employment prospects of young offenders. It is obviously intended to apply only to non-serious offences and the public will not be at risk of any harm. Clearly, the usual suite of public protection arrangements will continue to apply to jobs that involve working with children and vulnerable people. If this provision were adopted, it would be a powerful incentive for young people to rehabilitate as responsible adults in their communities. Such an incentive is important at a time when youth unemployment is at a record high and there is a risk of both crime and detention rates spiralling further.
The amendment has been crafted to ensure that rehabilitation periods are not spent before a young person completes their sentence. That does not mean that those who would otherwise be required to wait a long time before their conviction is spent would suddenly find themselves without any rehabilitation period at all, simply due to having committed an offence close to their 18th birthday. It would exempt those still serving their sentence at 18, including the licence period of that sentence, from the "wipe the slate clean" provision. In other words, if a young person committed a theft aged 17 and is sentenced to three years in detention, he would attract a rehabilitation period of three and a half years, commencing on the completion of his sentence at the age of 20. Therefore, the conviction would not be spent until he reached 23 years of age. However, if he committed a theft at the age of 14 and was sentenced to three years' detention, instead of waiting until the age of 21 for the conviction to be spent his sentence would expire when he was 17 and his conviction would automatically become spent on his 18th birthday. This provision deals with the possible criticism that a person who commits an offence aged 17 years and 11 months would have his conviction wiped clean on his 18th birthday. That would clearly be unacceptable and is most certainly not the intention of this amendment.
The Government raised the question in the Green Paper but we have not had an answer. I would welcome a response from my noble friend.
Lord Ramsbotham: My Lords, briefly, I support the government amendments that have been tabled and echo the many warm things that have been said about the noble Lord, Lord Dholakia, for his persistence in pursuing this matter.
I merely mention that in 2001 I was invited to inspect the young offender institutions in the Caribbean. In Barbados, I found a system in which, at the age of 18, every child automatically had their convictions looked at and the slate wiped clean of all except those that it was deemed in a schedule should be carried
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Lord McNally: My Lords, in introducing this series of amendments, I covered our responses to the questions. Perhaps I should repeat that politics is the art of the possible. My noble friend Lord Dholakia prayed in aid the 2002 report Breaking the Circle. The difference between that and this Government's consultation, Breaking the Cycle, is that Breaking the Circle did nothing, while we brought in Breaking the Cycle through an amendment. I have tried to find out from my researchers whether it was the Labour Government of 1974 or Ted Heath's Government, who went out of office that year, who brought in the original Rehabilitation of Offenders Act. Perhaps that shows what has happened to the attitude towards penal reform in that it has taken 37 years to reform that Act. Successive Governments have ducked this issue. I am proud that this Government have taken the decision to amend that Act. We will monitor the effectiveness of the Act and the impact these changes have on offenders and their ability to secure employment.
As I said in my opening remarks, I have no objections to campaigners continuing to campaign but when a Government tackle an issue that has been ducked for 37 years, they are entitled to a little of the credit.
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Lord Dholakia: My Lords, I am grateful to the Minister, particularly for his last comment, which is much appreciated. I thank him for the government amendments that he has proposed on behalf of the large number of offenders who will benefit from them. I do not wish to prolong the discussion other than to say that we will systematically monitor the impact of all these amendments and, if necessary, look again at the legislation. The Government took the brave decision to bring forward these amendments. I thank the Minister, his Bill team and other members of staff who have co-operated with me. I beg leave to withdraw the amendment.
Amendment 185FA (to Amendment 185F) withdrawn.
Amendments 185FAA to 185FD (to Amendment 185F) not moved.
185G: After Clause 127, insert the following new Clause-
"No rehabilitation for certain immigration or nationality purposes
Before section 57 of the UK Borders Act 2007 (and after the italic cross-heading before that section) insert-
"56A No rehabilitation for certain immigration or nationality purposes
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(1) Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) do not apply-
(a) in relation to any proceedings in respect of a relevant immigration decision or a relevant nationality decision, or
(b) otherwise for the purposes of, or in connection with, any such decision.
"immigration officer" means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971,
"relevant immigration decision" means any decision, or proposed decision, of the Secretary of State or an immigration officer under or by virtue of the Immigration Acts, or rules made under section 3 of the Immigration Act 1971 (immigration rules), in relation to the entitlement of a person to enter or remain in the United Kingdom (including, in particular, the removal of a person from the United Kingdom, whether by deportation or otherwise),
"relevant nationality decision" means any decision, or proposed decision, of the Secretary of State under or by virtue of-
(a) the British Nationality Act 1981,
(b) the British Nationality (Hong Kong) Act 1990, or
(c) the Hong Kong (War Wives and Widows) Act 1996,
in relation to the good character of a person.
(3) The references in subsection (2) to the Immigration Acts and to the Acts listed in the definition of "relevant nationality decision" include references to any provision made under section 2(2) of the European Communities Act 1972, or of EU law, which relates to the subject matter of the Act concerned.""
185H: After Clause 127, insert the following new Clause-
"Transitional and consequential provision: Chapter 7A
(1) Section (Establishment or alteration of rehabilitation periods) applies in relation to convictions or (as the case may be) cautions before the commencement date (as well as in relation to convictions or cautions on or after that date).
(2) The Rehabilitation of Offenders Act 1974 applies in relation to convictions or cautions before the commencement date as if the amendments and repeals made by section (Establishment or alteration of rehabilitation periods) had always had effect.
(3) Where by virtue of subsection (2)-
(a) a person would, before the commencement date, have been treated for the purposes of the Act of 1974 as a rehabilitated person in respect of a conviction, or
(b) a conviction would, before that date, have been treated for the purposes of that Act as spent,
the person or conviction concerned is (subject to any order made by virtue of section 4(4) or 7(4)) to be so treated on and after that date.
(4) Where by virtue of subsection (2)-
(a) a person would, before the commencement date, have been treated as mentioned in paragraph 3(1) of Schedule 2 to the Act of 1974 in respect of a caution, or
(b) a caution would, before that date, have been treated for the purposes of that Act as spent,
the person or caution concerned is (subject to any order made by virtue of paragraph 4 or 6(1) and (4) of that Schedule to that Act) to be so treated on and after that date.
(a) no person who, immediately before the commencement date-
(i) is treated as a rehabilitated person for the purposes of the Act of 1974 in respect of a conviction, or
(ii) is treated as mentioned in paragraph 3(1) of Schedule 2 to that Act in respect of a caution, and
(b) no conviction or caution which, immediately before the commencement date, is treated for the purposes of that Act as spent,
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is to cease to be so treated merely because of section (Establishment or alteration of rehabilitation periods).
(6) Section (Establishment or alteration of rehabilitation periods) does not apply in relation to alternatives to prosecution given before the commencement date.
(7) Section (No rehabilitation for certain immigration or nationality purposes) applies in relation to convictions before the commencement date (as well as in relation to convictions on or after that date).
(8) Section (No rehabilitation for certain immigration or nationality purposes) applies as mentioned in subsection (7) above whether or not, immediately before the commencement date-
(a) the person concerned is treated as a rehabilitated person for the purposes of the Act of 1974 in respect of the conviction, or
(b) the conviction is treated for the purposes of that Act as spent.
(9) But section (No rehabilitation for certain immigration or nationality purposes) does not affect-
(a) any proceedings begun, but not completed, before the commencement date,
(b) any applications for immigration or nationality decisions made, but not finally determined, before the commencement date, or
(c) the validity of any proceedings, or any relevant immigration or nationality decision (within the meaning of section 56A of the UK Borders Act 2007) which is made, before the commencement date.
(10) Schedule (Rehabilitation of offenders: consequential provision) (consequential provision) has effect.
(11) Any reference in this section to section (Establishment or alteration of rehabilitation periods) is to be read as including a reference to Schedule (Rehabilitation of offenders: consequential provision).
(12) In this section "the commencement date" means such day as may be specified by order of the Secretary of State made by statutory instrument; and different days may be specified for different purposes."
Amendments 185G and 185H agreed.
Clause 128 : Offences of threatening with article with blade or point or offensive weapon in public or on school premises
Baroness Linklater of Butterstone: My Lords, I shall speak to Amendments 186 and 187 which relate to Clause 128, which seeks to extend mandatory prison sentences to children under 18 who carry or threaten with a knife, except in exceptional circumstances.
There are two main underlying questions here which must be addressed. The first is whether mandatory prison sentences for children are the proper tool for sentencers in terms of proportionality or appropriateness. The second is what are the likely outcomes of such a proposal. For example: will these sanctions actually deter children who carry knives from carrying them; will imprisonment today prevent further knife carrying tomorrow; will our streets be significantly safer in the future; or will they help to address the issues which lead children to carry knives in the first place?
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Mandatory sentencing for certain types of offence for children is, to quote the Justice Secretary,
a remark that has more than a touch of irony in it. The essence of appropriate, proportionate, constructive sentencing, particularly where children are concerned, is the ability of the sentencer to look at all the circumstances which lead a child to offend in a particular way, and in this specific context mandatory sentences would seem to run contrary to good sentencing practice. Furthermore, when sentencers are considering their decision in such cases, deterrence is not one of the statutory purposes of sentencing for juvenile offenders under the Criminal Justice Act 2003.
However, it should give comfort to an anxious public that sentencers in fact already have powers to imprison children convicted of carrying a knife in a public place for a maximum of two years. The point at issue here is that the crucial change this clause would make is to remove the discretionary element for the sentencer. This, I believe, is simply unjust where children are concerned, and is something no sentencer wants. Indeed, the chairman of the youth courts is on record as saying that he is not in favour of this proposed change.
We know from the most recent MoJ statistics that 85 children were given an immediate custodial sentence for offences involving possession of a knife or offensive weapon in the third quarter of last year. Custody consistently accounts for roughly 9 per cent of all disposals. In other words, the courts already have the necessary powers to deal with the problem and are using them, and they must be able to take into account all the circumstances of a child's offence, and his or her needs, as well.
Children are not small adults and must not be treated as such. This is where the skill, knowledge and understanding of sentencers are extremely important. In fact, the number of children committing possession-related offences is going down, which suggests that the current sentencing framework is working appropriately, combined with knife-prevention programmes and the like. Therefore, it is clear that the proposed mandatory sentences for this type of crime where children are concerned are both unnecessary and inappropriate. In fact, despite public anxieties about the growth of possession of knives, the statistics issued by the MoJ also show that last year between July and September there were 904 offences involving possession of a knife, which was down 48 per cent on the same period three years ago. This suggests that, once again, the current sentencing framework is getting it right.
The riots of last year were and are a cause for real concern. We still do not really have a proper understanding of what lies behind those extraordinary events, which are mercifully atypical of public behaviour in this country. Those pockets of inner-urban areas where there is an undue amount of trouble, which buck this overall trend of falling knife crime, are now the subject of debate. I am always impressed by the skills of the police and other agencies in dealing with the issue, and we must work with them to deal still more effectively with it. But the figures overall simply do not justify a knee-jerk response of the introduction of mandatory imprisonment for children as a response to exceptional
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Equally important for society is to consider what in fact the outcomes of such sentencing are likely to be where children are concerned. Professor Ashworth put it quite bluntly in 2010, when he wrote that the evidence of any deterrence value of mandatory sentences of imprisonment for 16 and 17 year-olds is "non-existent". The Halliday report back in 2001 equally found that there is no evidence to suggest that, for children, there was a link between sentence severity and deterrence effects. Rather, it is the risk of being caught that is most likely to affect behaviour. Indeed, Frances Done, the distinguished chair of the Youth Justice Board, said that the risk of being caught is,
A range of other studies has also come to the same conclusion.
The fact is that young children are often not capable of looking ahead and assessing the likely long-term effect of carrying a knife, or what that might mean to them and their families. Understanding consequences requires a degree of maturity that such children often simply do not have. Nor do they have independence of mind when they may be surrounded by others who are older who carry knives. Furthermore, there is a consensus among those who work in the field that what are referred to as fear and fashion have a great impact. I declare an interest as a trustee of the Esmée Fairbairn Foundation, which has funded work in this field that has been highly relevant and effective.
Three-quarters of the number of children who carry knives do so to protect themselves rather than to use them aggressively on another person. They do so because they are scared. It is a really sad thought that children should feel that way in this country. The corollary is that it becomes as fashionable to carry a knife as it is to have the latest mobile phone or iPod.
Complex social problems underlie knife carrying, and we must continue to do more to address them. That involves a lot more education and awareness-raising about the consequences. Mandatory four-month prison sentences involving two months in custody and two in the community on licence will do little to deal with those problems. That will achieve a purely punitive response. Although punishment is one element in the armoury of the sentencer, it must be balanced with the other purposes in sentencing for children, as every judge or magistrate knows.
I reiterate that short mandatory sentences for carrying or threatening with a knife is punishment as political gesture, which has little chance of achieving anything positive. Difficult as I know it is for him, but in the interests of justice, I urge my noble friend to look again at Clause 128. I beg to move.
Lord Lloyd of Berwick: My Lords, I support the amendment moved so well by the noble Baroness, Lady Linklater, but I would like to go further than she has. If the Committee accepts her amendments, as I very much hope that we will, we might as well go a little further and get rid of Clause 128 altogether, because it serves no useful purpose.
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I start with subsection (1). Carrying an offensive weapon in public has been an offence under the Prevention of Crime Act since 1953-a long time ago. It carries a maximum sentence of four years. Incidentally, those were the days when the whole of one year's legislation could be included in a single volume of ordinary size, which one could read in bed, if one was so disposed. Compare that to what we have today: eight enormous volumes which one can hardly lift at all. That is by the way.
In 2003, the Court of Appeal issued some guidance in which it said that if the offensive weapon is used to threaten someone, the sentence should be at the upper end of the scale, approaching four years. I ask a simple question. What can be the purpose of creating a new offence of threatening with an offensive weapon when it is already adequately covered by the Prevention of Crime Act 1953 with exactly the same maximum sentence? Surely a sound principle of legislation in the criminal field, as in other fields of life, known as Occam's razor, is that offences should not be multiplied without good reason. I can think of no good reason for enacting Clause 128(1). If the noble Lord can think of some good reason, I hope that he will let us know what it is.
Exactly the same applies to subsection (2). Carrying a knife in a public place or on school premises has been an offence since the Criminal Justice Act 1988. It also carries a maximum sentence of four years. Again I ask: what can be the purpose of creating a new offence of threatening with a knife when it is already covered by the 1988 Act with exactly the same maximum sentence?
It would surely be fanciful to suppose that by the addition of the words "threatening" or "threatens" in the description of the offence anybody is going to be deterred in real life. In real life, those who carry knives do not pay much attention to what we say here in Parliament. The courts already have ample powers under the existing law to deal with those who threaten with knives. Let us leave it to the judges, because nothing more is needed.
10.15 pm
There are other objections to Clause 128 on which the noble Baroness has touched. As with Clause 114, the sentence is mandatory-that is how it is described in the Explanatory Notes. To my mind, a mandatory sentence means one which the judge must pass, such as the mandatory sentence of life imprisonment. However, this is not a mandatory sentence in that sense at all. The judge has discretion to do what is just in a particular case, as in all other cases. There is no "must" about it. So why use the word "must"? Why call it a mandatory sentence when it is no such thing? Why, while I am about it, does the clause refer rather coyly to an "appropriate custodial sentence" when what it means is a minimum sentence? The only reason that I can think of is that "must" and "mandatory" are intended to give the impression that the Government are being tough on sentencing-it makes a better headline. I deplore this new-fangled style of introducing so-called mandatory sentences which are not mandatory in the ordinary sense of the word. In a criminal statute, above all, words should mean what they say, neither more nor less.
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Finally, I of course accept that knife crime is a very serious problem, ending, as it does all too often, with a charge of murder. However, the way to solve the problem is not by creating more and more new offences. The way ahead is surely to follow the example of a remarkable woman, Karen McCluskey, a former nurse and qualified forensic psychiatrist. She saw that the only way to reduce knife crime among the young was to work with the gangs among which they lived, moved and had their being. With the help of the Glasgow police, she did just that. I shall not go into the details; they are all to be found in a copy of the Guardian of 20 December last year. It is enough to say that, as a result of her efforts, violent offending among the 500 gang members in eastern Glasgow fell by 46 per cent and knife crime by an astonishing 85 per cent. We should follow her example and not spend our time creating new offences which add nothing to the existing law. It is good that, as we have heard, the level of knife crime is falling. If we think that we are accelerating that process by enacting Clause 128, all I can say is that we are deceiving ourselves.
Lord Bach: My Lords, knife crime has been a scourge on communities throughout Britain. I think my party, when in government, did quite a lot to tackle this appalling problem and yet it persists. Of course, some would say that the answer is to deal with the causes of such crime, particularly where young people are concerned. Yet the Government say that the answer is to create a new crime that is entirely covered, as the noble and learned Lord has just made abundantly clear, by existing crimes. For my part, I cannot see any logic behind it at all. Frankly, someone who uses a bladed weapon to threaten another person is guilty of a very serious criminal act, but that act is covered by existing statute law. More than that, there is guidance on sentencing and, of course, there is case law.
For our part, we will not be drawn tonight into the game that we fear the Government are playing with this legislation. It is legislative public relations, no more and no less. I look forward to hearing the Minister's response to the points that have been made so well by the two previous speakers. I wonder whether he is as proud of this piece of legislation as he was of the last piece of legislation concerning rehabilitation of offenders. I rather feel that he is not.
Lord McNally: My Lords, we believe that currently there is no offence that specifically targets the behaviour covered by this clause; namely, the most serious of threatening behaviour where people carrying a knife or an offensive weapon use it to threaten and cause,
We believe that we are sending a clear message to those who behave in that way that they cannot expect leniency.
I understand, and very much respect, where my noble friend Lady Linklater is coming from. I want to make two points, one of which I have made before to the noble Lord-I am always tempted to say "my noble friend"-Lord Judd, who I am glad to see in his place. I make them to the noble Baroness as well. I understand that these under 18 year-olds, these children, may have various and complex difficulties in their
15 Feb 2012 : Column 901
I speak as the parent of three young children who have just come through their late teens. I know the fear in the hearts of parents of teenagers who go out on a Friday or Saturday night. The fear is always there that one piece of bad luck, one act of disrespect, will end up in their child being severely injured or perhaps even killed by someone carrying a knife. We are addressing that fear. All speakers have acknowledged that knife crime is a serious problem. I am as pleased as anyone that there has been some decrease in knife crime, but I do not think that it does any harm, particularly in the 16 to 17 year-old age group, to do a little bit of public relations and to send out a message that it is not fashionable-it might even be plain stupid-to carry a knife, to brandish it and to threaten people with it. I do not belittle any of the examples that have been given of people who deal with the problems of violence in our society but, in putting forward this law, we are addressing a real issue and making it clear that knife crime is unacceptable. It is not the first example of a minimum sentence. Nor is it the first example of a minimum sentence for 16 and 17 year-olds. There is a minimum sentence of three years for certain firearms offences committed by 16 and 17 year-olds. That measure was brought in by the previous Labour Government in the Criminal Justice Act 2003.
The Government believe that it is right to have minimum sentences specified in law where a certain offence warrants a strong and clear message that a certain type of behaviour will not be tolerated in a decent and law-abiding society. That is why we are legislating for the courts to be able to apply a minimum custodial sentence of four months' detention and training for 16 and 17 year-olds. However, as was pointed out, the legislation builds in discretion concerning the welfare of the offender, which is sensible. The amendments tabled by my noble friends would remove the minimum sentence not only for 16 and 17 year-olds but for adults. The Government cannot accept them. They would undermine our firm intention to stamp out these crimes. Therefore, I hope that the noble Baroness will withdraw her amendment and the noble and learned Lord will not oppose the Question that the clause should stand part of the Bill.
Baroness Linklater of Butterstone: My Lords, I listened with interest and not a great deal of surprise to what my noble friend said. We talked about fear and fashion, and I will reiterate that anybody who works with young people knows that the predominant cause is fear. We need to address why these things happen. It is not at all likely that having such a new sentence on the statute book will do anything to deter young people. As the noble and learned Lord, Lord Lloyd, said, what we do and say in this House will not percolate down, or mean very much, to a 16 or 17 year- old. However, taking account of the hour-I am about to catch my sleeper to Scotland-I will certainly not pursue the matter. I beg leave to withdraw the amendment.
15 Feb 2012 : Column 902
Debate on whether Clause 128 should stand part of the Bill.
Lord Lloyd of Berwick: My Lords, I will not press the point now, but I shall certainly return to it.
187ZA: Before Schedule 22, insert the following new Schedule-
"Rehabilitation of Offenders: consequential provisionPart 1Rehabilitation of Offenders: generalRehabilitation of Offenders Act 1974: England and Wales1 The Rehabilitation of Offenders Act 1974 is amended as follows.
2 In section 1(4)(a) (references in Act to a conviction) for "Great Britain" substitute "England and Wales".
3 In section 2(5) (rehabilitation of persons dealt with in service disciplinary proceedings) for "Great Britain" substitute "England and Wales".
4 Omit section 3 (special provision with respect to certain disposals by children's hearings under the Social Work (Scotland) Act 1968).
5 In section 4(1)(a) (effect of rehabilitation) for "Great Britain" substitute "England and Wales".
6 (1) Section 7 (limitations on rehabilitation under the Act) is amended as follows.
(2) In subsection (2)(a) for "Great Britain" substitute "England and Wales".
(3) In subsection (3) for "Great Britain" substitute "England and Wales".
7 Omit section 8(8) (defamation actions: application of section to Scotland).
8 In section 8A(2)(d) (definition of "caution") after "Wales" insert "and which is not an alternative to prosecution (within the meaning of section 8AA)".
9 (1) Section 9 (unauthorised disclosure of spent convictions) is amended as follows.
(2) In subsection (3) omit "(or, in Scotland, the accused person)".
(3) In subsection (8) omit ", in England and Wales,".
10 After section 10(1) (orders) insert-
"(1A) Any power of the Secretary of State to make an order under any provision of this Act includes power-
(a) to make different provision for different purposes, and
(b) to make incidental, consequential, supplementary, transitional, transitory or saving provision.
(1B) The power of the Secretary of State to make an order under section 5(6) includes power to make consequential provision which amends or repeals any provision of this Act or any other enactment."
11 Omit Schedule 1 (service disciplinary convictions referred to in section 6(6)(bb) of that Act).
Rehabilitation of Offenders Act 1974: Scotland12 The Rehabilitation of Offenders Act 1974 is amended as follows.
13 In section 1(4)(a) (references in Act to a conviction) for "Great Britain" substitute "Scotland".
15 Feb 2012 : Column 903
14 In section 2(5) (rehabilitation of persons dealt with in service disciplinary proceedings) for "Great Britain" substitute "Scotland".
15 In section 4(1)(a) (effect of rehabilitation) for "Great Britain" substitute "Scotland".
16 (1) Section 7 (limitations on rehabilitation under the Act) is amended as follows.
(2) In subsection (2)(a) for "Great Britain" substitute "Scotland".
(3) In subsection (3) for "Great Britain" substitute "Scotland".
17 (1) Section 9 (unauthorised disclosure of spent convictions) is amended as follows.
(2) In subsection (3) for "defendant (or, in Scotland, the accused person)" substitute "accused person".
Part 2Rehabilitation of Offenders: consequential repealsSchedule 22 : Knives and offensive weapons: minor and consequential amendments
Amendment 187A had been withdrawn from the Marshalled List.
15 Feb 2012 : Column 904
Lord McNally: My Lords, the point of creating this offence is that the Government want to send a clear message to existing and would-be squatters that occupying somebody else's house without permission is unacceptable, whatever the circumstances of the rightful owner or the state of the building. It does not suddenly become acceptable to squat if the owner of a property happens to go away for six and a half months. Amendment 188 is designed to protect people who squat in residential buildings that have been empty for more than six months, where no significant steps are being taken to refurbish them.
Lord McNally: Oh! I have jumped a group. Sorry. I hope I did not shock my noble friend Lady Miller.
Amendments 187B, 187C and 187D are being made consequential to the application of a minimum custodial sentence of a four-month detention and training order to 16 and 17 year-olds convicted of offences of threatening another person with a bladed article or weapon causing risk of serious physical harm. Amendments 187B and 187C amend references in the insertion to Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000. These amendments are consequential to the debate we have just had and form part of the new offences in Clause 128. I beg to move.
10.30 pm
187D: Schedule 22, page 230, line 34, at end insert-
"16A (1) Section 142A(4)(b) (purposes of sentencing: offenders under 18) is amended as follows.
(2) Before sub-paragraph (i) insert-
"(zi) section 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for offence of threatening with offensive weapon in public),".
(3) After sub-paragraph (i) insert-
"(ia) section 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for offence of threatening with article with blade or point or offensive weapon),"."
Amendments 187C and 187D agreed.
Schedule 22, as amended, agreed.
15 Feb 2012 : Column 905
Clause 130 : Offence of squatting in a residential building
188: Clause 130, page 111, line 39, at end insert-
"( ) The offence is not committed where the building has been empty for 6 months or more and where there are no significant steps being taken to refurbish, let or sell the building at the time of the trespass."
Baroness Miller of Chilthorne Domer: My Lords, I realise the hour, but I will need to detain the Committee for some time on this clause because it is very serious and seeks to criminalise a large group of people. It was not debated in Committee in the other place, so I feel that this House needs to give it its full scrutiny. I am very pleased that so many of your Lordships are still in their places at this time of night to debate this issue. I have tabled this amendment and given notice of my intention to oppose the Question that this clause stand part of the Bill because I think the Committee will need to question very deeply the Government's claim that they need to criminalise the vulnerable homeless who are seeking shelter.
Let me say at the outset that I-like all noble Lords, I am sure-feel that a home should be sacrosanct and that any violation of it is totally unacceptable. An Englishman's or Englishwoman's home may not be a castle, but it should be so in law, and so it is. Despite the many misconceptions peddled by the press and others, it is already a criminal offence to squat in someone's home. The instances of squatters trying to establish themselves in someone's home are minuscule, but when it happens homeowners can be quite clear that they can ask the person or people to leave, and should that not happen immediately they should call the police. The police should remove the squatters and deal with the matter as a criminal offence. The same applies to a home that has been bought into which someone is intending to move. In both cases, the property owner is protected by Section 7 of the Criminal Law Act 1977, which was updated by the Criminal Justice and Public Order Act 1994. It is already a criminal offence to refuse when asked to leave someone's home or a house that they are about to move into, to cause criminal damage either to gain entry or once inside the property, and to use utilities without paying for them. The police have a clear duty to enforce that. That is just to be absolutely clear. When the Minister began to speak to this amendment, he implied that the law was not sufficient in this case, and my first question to him is: why do the Government think that?
My amendment is suggested by the charity Crisis. Its purpose is to probe whether it might be better to extend what is covered by Section 7. The amendment proposes that anyone squatting in a house that has been empty for more than six months-not anyone's home, but a house that has been empty-and where there have been no material steps to bring it back into use would not be committing a criminal offence. What we need more clarity about are empty houses-not homes, but empty houses; for example, because they are going to be redeveloped or because someone has
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Crisis commissioned independent research that shows that 41 per cent of homeless squatters report mental health needs; 34 per cent have been in care; 42 per cent suffer physical ill health or a disability; 47 per cent have experienced drug dependency; 21 per cent self-harm; and 15 per cent have a learning disability. On all these measures, homeless squatters are more vulnerable than the single homeless population as a whole, and 90 per cent of homeless squatters have also slept rough.
These are the people whom the Government are seeking to criminalise. I submit that criminalisation will not solve the problems faced by either these homeless individuals or by our society as a whole, which has a housing crisis, with over 600,000 people homeless and 350,000 empty properties-which is, as George Clarke graphically described in his Channel 4 series "The Great British Property Scandal", equivalent to a city the size of Leeds.
To have a rational debate about squatting and empty properties, we need to debunk some of the myths. The Crisis report makes plain that there are a lot of myths around squatting; for example, that of the eastern European squatting gangs invading people's homes, which, according to the Met policeman responsible for squatting policy, does not happen. What we are dealing with are people who, for whatever reason, have lost their home and are on a route back to housing.
Of course there are a few who choose to squat as a political statement, the so-called lifestyle squatters. As the historian Colin Ward says in his history of the subject:
"There has always been a distinction between squatting as a political demonstration and squatting as a personal solution to a housing problem. In the first instance the intention is for propagandist purposes, to be noticed. In the second the hope is to be inconspicuous and blend into the landscape".
The Occupy squats are there to be seen and heard. Other squatters are trying in nearly all cases to be quiet neighbours and keep themselves to themselves.
There are a number of reasons why I am challenging Clause 130. First, it is no way to deal with the vulnerable homeless. Secondly, alone in this Bill, which is all about cutting costs, it will pass substantial additional costs on to the Ministry of Justice and eventually the taxpayer. I know how anxious my noble friend is for the Government to reduce costs and for his department to reduce its budget. Thirdly, the Law Society, the Criminal Bar Association, the Metropolitan Police Service and Crisis all believe that it would be much more sensible for the Government to focus on ensuring that the current law, which is quite adequate, is enforced, rather than to create a new criminal offence.
Interestingly, that position has also been taken by Annington Holdings plc, one of the largest owners of private property in the UK, which describes enforcement as the crux of the problem. It is in empty premises unoccupied for months or years, intended at some
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As a former leader of the local authority in Somerset, I have seen this issue from the other side and I have some sympathy. Housing associations have been affected, as have many private sector developers, but the fact is that civil remedy is not difficult. It is tried, tested and backed up by a very experienced bailiff system, which is what the civil law is there for. One of the peculiarities of the proposed legislation is that it is likely to lengthen the time that it takes to evict squatters. Prosecuted under civil law, squatters can be removed with an interim possession order in just a couple of days but going through the CPS could take weeks or even months.
In March 2011, the Government made a very good move when they made the position clearer in a joint initiative between the MoJ and the Housing Minister, Grant Shapps. They issued updated guidance called Advice on Dealing with Squatters in your Home, which makes it clear that it is an offence for a squatter to fail to leave a residential property when asked to do so. I would ask the Minister what advice to the Government changed after March 2011. It was not the advice from the police who, in their formal response to the MoJ consultation, said:
"Criminalisation of squatting and subsequent enforcement would have an impact on policing, in terms of community relations, local policing objectives and cost".
They are not in favour of the change before us tonight. It was not on the advice of the enforcement agencies.
I do not know whether the Minister has had time to read the opinion of Claire Sandbrook, who is one of 60 authorised High Court enforcement officers and chair of Shergroup, which is a leading legal services company. She said:
"The options put forward in the paper also have one massive omission-the option of enhancing the civil enforcement route for dealing with squatters. Certainly, to my knowledge, there have been no complaints as to how effectively HCEOs deal with squatters once the cases are put in their hands. HCEOs deal with squatter evictions quickly, efficiently, safely and without cost to the public purse once they are in a position to take control of the situation ... The trick would surely be to ensure that cases can be processed and actioned far more speedily through existing civil procedures".
The fact is that the police are neither resourced nor trained to take on the duties that the bailiffs are undertaking. They could do so only at considerable cost and with other vital law and order priorities being downgraded as a result.
What will happen if we leave Clause 130 as it is? I ask your Lordships to consider whether it would mean more empty homes are brought back into use quickly by housing associations and local authorities. No, it will not because the reason that those homes are not being renovated and brought back into use is almost always financial. Will it make it easier for private landlords to gain possession of empty properties? It
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The Government's regulatory impact assessment envisages spending something between £3 million and £10 million more per year to enforce this. That is a very conservative estimate. I have seen others which estimate the sum to be nearer £20 million a year. The impact assessment does not cover the added costs to local authorities that presentation of numbers of vulnerable homeless will present-somewhere between 20,000 and 50,000-nor of children who will need special care arrangements. I think that taxpayers will ask who has benefited from this change. It will not be home owners, who are already protected.
I must say that the Government have made an excellent start on tackling the empty homes problem. Only in December last year, for the first time a £20 million fund was announced to provide support for single homeless people. The Housing Minister, Grant Shapps, then announced a review of barriers to investment in rented homes, and the Government introduced their empty homes strategy, when my honourable friend the Minister Andrew Stunell said:
"The number of empty homes in this country is a national scandal ... yet for every two families that need a home there is one standing empty. That is why I've made tackling the blight of empty homes a top priority for the Coalition ... we've made £150 million available to help councils and charities take radical action".
All the building blocks are in place to solve the empty homes issue and make squatting a thing of the past. That is the route I believe we should be taking. I do not think we should criminalise the vulnerable homeless and we should not be creating a worse housing crisis.
I admit that we have to solve a knotty and difficult problem, but the period between now and Report is when your Lordships need to look in depth at these issues and not at Clause 130 as it is before us tonight. I beg to move.
10.45 pm
Baroness Stern: My Lords, I rise briefly to speak in support of the amendment which has been moved so ably by the noble Baroness, Lady Miller. I recall how encouraging it was to see the coalition Government, when they came into office, making it clear that new laws were not the answer. Speaking at the Liberal Democrat annual conference in September 2010, the Minister said:
"Labour created thousands of new offences and used a steady stream of criminal justice and anti-terrorism laws to ratchet up the powers of the state and to diminish the rights of the citizen. This coalition comes into office to reverse that tidal flow of laws ...Which is why my department, the Ministry of Justice, will now check each new criminal offence. And if we don't need it, it will be blocked".
In the light of that admirable sentiment, I wonder if I could ask the Minister why, having heard the noble Baroness, Lady Miller, he still feels that this would be a good new offence to introduce.
Lord Judd: My Lords, I congratulate the noble Baroness on having put this issue before the Committee. I am not sure that I see some of the points she made as
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Lord Bach: My Lords, the Committee owes a debt of thanks to the noble Baroness, Lady Miller, for having brought this difficult subject to our attention. It is not her fault that we are discussing it in the watches of the night and she has no need to apologise for taking the time of the Committee in explaining her point of view. As she said, the provision on squatting was introduced in another place with very little opportunity for scrutiny even on Report. The debate was pretty short. So this represents the first chance, and I hope not the last, for Parliament to get its teeth into these proposals.
Prima facie, the new criminal offence will demonise the absolute poorest, those with mental health issues and those who, frankly, have no other option than to shelter in properties that are, for the most part, unfit for habitation. Of course, we take the view, as does everyone else of sensible mind, that lifestyle squatting is quite beyond the pale and absolutely unacceptable-we oppose it as a principle as much as anyone else.
However, there is a big difference, as the noble Baroness demonstrated, between those few who jump carelessly into properties owned by others with the intent of abusing-severely abusing in some cases-the rights of ownership and those who have no other option unless they want to live on the streets. Anyone who lives in central London, for example, knows that the number of people living on the streets is going up as we speak. A large number of those people have no doubt, from time to time, "squatted" in the terms of what will become this legislation.
Our media, of course, are quite happy to remind us of the instances of outrageous behaviour by lifestyle squatters, but they are curiously quiet when it comes to telling us about, for example, a veteran with severe post-traumatic stress disorder who is addicted to drugs and alcohol and shelters in a property riddled with asbestos. Is he the sort of squatter whom the Government are out to get?
Squatting for the main part is already illegal and, in most instances, criminal, too. The Criminal Law Act 1977 makes it a criminal offence for any person to leave premises when required to do so by "a displaced residential occupier" or "protected intended occupier" of the premises. Parts 55.1 and 55.3 of the Civil Procedure Rules allow for owners to evict someone in a residence they do not occupy. Moreover, an interim
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Perhaps a hint came in the signature leaks to the media. A series of reports leading up to the unveiling of this government policy focused on the very sad case of Dr Oliver Cockerell and his pregnant wife who, the ministry briefed, were thrown out of their house by squatters. However, in that case, it emerged that the police, for once, had wrongly stated that the case of the doctor and his wife was a civil issue and not one for them. In fact, as Mr Cockerell and his wife were protected intended occupiers, it is more than arguable that the police should have intervened under the current law. Their failure to do so was not atypical and the position does not require the kind of legislative, heavy-boots intervention that the Government intend.
The Welfare Reform Bill and the legal aid Bill that we are debating tonight both deal in parts with impecunious and very vulnerable people. The two Bills together will increase the number of people who have to resort to living in condemned housing out of desperation. We know, thanks to social welfare researchers, that there is a significant prevalence of mental health problems, learning difficulties and substance addiction among those who are homeless. In fact, the Government's own impact assessment, referred to in passing by the noble Baroness, tells us who is forced to squat. It said:
"Local authorities and homelessness ... charities may face increased pressure on their services if more squatters are arrested/convicted and/or deterred from squatting. Local authorities may be required to provide alternative accommodation for these individuals and could also face costs related to increases in rough sleeping in their areas. An increase in demand for charities' services"-
"There may also be a cost to society if this option is perceived to be unfair and/or leads to increases in rough sleeping".
When the costs are identified, as the noble Baroness said, they are reasonably substantial.
We do not believe that the Government have a clue how many people actually squat. The reason for bringing in this new piece of criminal legislation is pure populism. It is demonisation of the poor by another method. We had concerns and said so on Report in another place. Those have been reinforced, frankly, by the way in which the Welfare Reform Bill and the legal aid Bill have been carried through by the Government. We have heard much more about opposition to the plans as they now stand.
I am not saying that we agree precisely with the amendment of the noble Baroness. It may be that six months is too little. I hope that when she withdraws her amendment tonight and there is time between now and Report there will be some discussion as to what the right amount of time should be and whether the wording is appropriate.
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However, if the noble Baroness were to bring back her amendment in a different form, perhaps with a longer period of time, we would be sorely tempted to support it on Report. I take the point made by the noble Baroness, Lady Stern, in her brief intervention. We were criticised incredibly strongly and sometimes with justification for bringing in too many new criminal offences by just those people who are bringing them in now. This debate and the previous one introduced two new criminal offences that are frankly not needed. What is the explanation for that?
It is very telling that the Metropolitan Police, the Bar Council and the Law Society, none of which are natural friends of the squatting community, all think that bringing this particular legislation is completely unnecessary. We look forward to hearing the noble Lord's justification for it.
Lord McNally: My Lords, beware the caveat about being sorely tempted to support the amendment. We will wait until Report to see how sorely tempted the noble Lord is. The noble Baroness, Lady Miller, said that this is a knotty and difficult problem, and so it is, but let me put it simply; the Government believe that the criminal law can and should go further to protect homeowners and occupiers. There should be a specific criminal offence that protects people from those who squat in their residential buildings.
Many residential property owners have described the anguish that they experience when discovering that squatters have occupied their properties. I say to my noble friend that local authorities too have expressed concern about this problem. The huge expense and incredible hassle of getting squatters evicted has been described.
The Government believe the harm that can be caused by squatters is unacceptable and must be stopped. The new offence would be committed where a person is in a residential building as a trespasser, having entered it as such, knows or ought to know that he or she is a trespasser and is living in the building or intends to live there for any period.
The whole point of creating this offence is that the Government want to send a clear message to existing and would-be squatters that occupying someone else's house without permission is unacceptable, whatever the circumstances of the rightful owner or the state of the building. It does not suddenly become acceptable to squat if the owner of a property happens to go away for six and a half months. Amendment 188 is designed to protect people who squat in residential buildings that have been empty for more than six months, where no significant steps are being taken to refurbish, sell or let the property.
11 pm
The Government's view is that the proposed new offence is entirely proportionate. There are many reasons why a residential building might be left empty for longer than six months without any steps being taken to sell, let or refurbish the property. As the noble Baroness has acknowledged, the Government are bringing more empty homes back into use and addressing the
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Baroness Miller of Chilthorne Domer: My Lords, I warmly thank those who have spoken in this debate tonight. I thought that the quote from the noble Baroness, Lady Stern, was incredibly apposite and absolutely agree with the noble Lord, Lord Judd, that there are some very complex issues around houses that stand empty. However, I come back to the initial issue-someone's home, or the home they intend to live in, is protected, as it is a criminal offence for a squatter to be in it. I still feel that the Minister's reply did not sufficiently recognise that issue, but we will not get to the root of that this evening. I am glad that the noble Lord, Lord Bach, gave us a real-life example, which pointed up exactly what we should be concerned about here.
Some of the things that I hope I will be able to discuss with the Minister and his department-which I know my noble friend is also concerned about-include the practicalities if the Government bring this in, such as the costs. Given the estimate of between 20,000 and 50,000 people squatting, what are the practicalities for local authorities being able to suddenly rehouse those sorts of numbers? The Minister said that this was about sending a clear message. I would just like to leave the Committee this evening with this thought; there are many ways of sending a message, and government guidance is a very good start. That is where the Government were in 2011, as I mentioned, and is something to build on. There is a lot to discuss between now and Report and I shall certainly bring this issue back. I welcome the suggestion of the noble Lord, Lord Bach, that we might discuss the wording of a more appealing amendment. I am sure we will debate this again, hopefully at a better hour of the day. In the mean time, I beg leave to withdraw the amendment.
188A: Clause 130, page 112, line 15, at end insert-
"( ) In section 17 of the Police and Criminal Evidence Act 1984 (entry for purpose of arrest etc)-
(a) in subsection (1)(c), after sub-paragraph (v) insert-
"(vi) section 130 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (squatting in a residential building);";
(b) in subsection (3), for "or (iv)" substitute ", (iv) or (vi)".
( ) In Schedule 10 to the Criminal Justice and Public Order Act 1994 (consequential amendments), omit paragraph 53(b)."
Lord McNally: My Lords, these are consequential amendments to debates that we have already had. Clause 130 creates a new offence of squatting in residential buildings, and I will explain the consequential amendment needed there. Rather oddly in the same grouping, Amendment 188B contains the transitional provisions for Clause 131, which deals with reasonable
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Such an amendment is necessary because the offence that we are creating is summary only, which means that it can be tried only in the magistrates' court. PACE does not normally provide the police with the powers to enter and search premises for a summary-only offence, unless a specific provision is included in Section 17(1)(c) of PACE. This amendment adds this specific provision to PACE.
The amendment to Clause 131 regarding self-defence makes transitional provision in relation to the amendments made to Section 76 of the Criminal Justice and Immigration Act 2008. The amendment will ensure that the amendments that we are making to that section can be applied retrospectively where appropriate, making matters simpler for the courts. The amendment to Clause 135 is minor and technical. I beg to move.
Clause 130, as amended, agreed.
Clause 131 : Reasonable force for the purposes of self-defence etc
188B: Clause 131, page 112, line 29, at end insert-
"( ) Paragraph 27 of Schedule 27 to the Criminal Justice and Immigration Act 2008 (which provides for section 76 of that Act to apply whenever the alleged offence took place, but not in relation to certain proceedings if they began, or the arraignment took place, before that section comes into force) applies to any amendment made by this section to section 76 of that Act as it applies to that section, but as if references to the date on which that section comes into force were references to the date on which the amendment comes into force."
Clause 131, as amended, agreed.
189: After Clause 131, insert the following new Clause-
"Amendment to the Scrap Metal Dealers Act 1964
In section 5 (other offences relating to scrap metal) after subsection (2) insert-
"(3) If any scrap metal dealer accepts or makes payment in cash, that dealer shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) When deciding the level of fine to be charged under subsections (1) to (3), a court may take into account-
(a) the value of the scrap metal in question;
(b) the provenance of the scrap metal in question;
(c) the compliance of the scrap metal dealer with the provisions of sections 1 to 3 of this Act generally; and
(d) any other factors which the court deems to be relevant.""
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Lord Faulkner of Worcester: My Lords, I move Amendment 189 not with the purpose of having a lengthy debate on scrap metal theft and the move towards a cashless transaction regime tonight, but in order to give the Minister the opportunity to explain to the Committee what the Government intend to do with this issue at Report. If it is the Government's intention on Report to move their own amendment on becoming cashless, I shall seek the leave of the Committee to withdraw the amendment later. I thank the other noble Lords who have signed this amendment: the noble Lord, Lord Bradshaw, the noble Baroness, Lady Browning, and the right reverend Prelate the Bishop of London, whose perseverance and endurance I pay tribute to by seeing him in his place here this evening.
This is a very important issue. It is part of a package of measures which I hope that the Government are going to take on board in relation to the epidemic of scrap metal theft. It may be that tonight the Minister could also say something about what the Government intend to do about powers of entry and closure of premises where there is suspicion that they contain stolen metal. If, in addition to that, he can also confirm that the Government are intending to bring forward substantive legislation in the new Session to update the Scrap Metal Dealers Act 1964, my cup genuinely will runneth over. I beg to move.
The Minister of State, Home Office (Lord Henley): My Lords, I am grateful to noble Lord, Lord Faulkner, for introducing this amendment to highlight this important issue? Like him, I pay tribute to the right reverend Prelate for his perseverance in staying here at this late hour for this matter. The right reverend Prelate was one of the earliest who came to see me to highlight this issue, particularly as it related to churches. However, as so many have said before, it is not just the churches, but it is the power companies, the transport companies and so many others. I do not want to go through the wide range of people who have been affected by it.
The noble Lord will be aware that my right honourable friend the Home Secretary announced on 26 January that the Government would be bringing forward amendments in the Bill to strengthen the law in this area. I repeated this as a Written Ministerial Statement in this House. In that Written Statement, my right honourable friend indicated that the government amendments would create a new criminal offence to prohibit cash payments to purchase scrap metal and significantly increase the fines for offences under the existing Scrap Metal Dealers Act 1964 which regulates that industry. This forms part of a coherent package of measures that we are taking to tackle metal theft. We aim to deter both thieves and metal dealers through more focused enforcement and tougher penalties. We will cut out the reward for metal thieves by banning cash payments for scrap metal and reducing the incentives for dealers to trade in stolen metals by developing a more rigorous licensing regime. These amendments are but a first step, albeit an important one. I underline that to the noble Lord.
Obviously, I welcome the support of the noble Lord and while I am sure that he is going to withdraw his amendment, he asked a crucial question about
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It is intended that the national metal theft task force will visit every single registered and unregistered scrap metal yard in the course of its routine business. One element of that visit will be to ensure registration under the 1964 Act. As such, we expect that the number of scrap metal dealers that are not registered under the Act, and consequently where the police do not have the power of entry, will be greatly reduced. In addition, we are actively looking into the option of widening police powers as part of our amendments. If that is something that we can deal with later on Report, we will do so.
I hope that, with those assurances about what we are definitely going to do and what we hope to do if we see a way to do it, the noble Lord will feel able to withdraw his amendment. I want to make clear to him, though, that we have a coherent package, we want to get ahead of this and we want to look at further amendments to the 1964 Act in due course. I hope that we can get, as I put it, a coherent package that we can bring before the House.
Lord Faulkner of Worcester: My Lords, I am most grateful to the Minister. I pay tribute to him for the way in which he has dealt with me so courteously since I first tabled this amendment immediately after Second Reading, which seems to be a very long time ago now. He has done exactly what he said on that occasion and has given the undertaking that on Report the Government will table an amendment on cashless payments. He has also given us some hope on entry to premises.
I hope that the Government will find time for this in the next Session, will not be deflected from unnecessary legislation that clogs up this House and will deal with something really important: the problem of scrap metal theft. On the basis of the assurances that the Minister has given today, I beg leave to withdraw the amendment.
Amendments 190 to 195 not moved.
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195ZA: Clause 135, page 114, line 3, after "59(2))," insert-
"( ) sections (No rehabilitation for certain immigration or nationality purposes) and (Transitional and consequential provision: Chapter 7A),"
195ZB: Clause 135, page 114, line 6, at end insert ", subject to subsections (5A) and (6).
(a) section (Establishment or alteration of rehabilitation periods) extends to England and Wales only,
(b) paragraphs 1 to 11 of Schedule (Rehabilitation of offenders: consequential provision) extend to England and Wales only,
(c) paragraphs 12 to 17 of that Schedule extend to Scotland only, and
(d) Part 2 of that Schedule extends to England and Wales only."
195A: Clause 135, page 114, line 7, leave out subsection (6) and insert-
"(6) Subsection (5) applies to section 131 only so far as the provisions amended extend to England and Wales or apply in relation to service offences."
Amendments 195ZA to 195A agreed.
Amendment 196 had been withdrawn from the Marshalled List.
Clause 135, as amended, agreed.
Lord Ramsbotham: My Lords, I shall be as brief as I can at this time of night. I begin with two wishes and a disappointment. I wish that I had been able to raise this amendment at the start of the Bill, but it is the custom of the House that amendments to the Title are taken at the end rather than the beginning. I also wish that he wording of my Amendment 196A had appeared also for Amendment 197, since they are actually both the same.
The disappointment is one that I declared at Second Reading: I was told that the Bill left the Ministry of Justice entitled the "Legal Aid, Sentencing and Rehabilitation of Offenders Bill" but emerged from No. 10 with the word "punishment" in the Title instead of "rehabilitation". I knew that I was not alone when I read in the House Magazine what the Minister himself said about this to the Liberal Democrat annual party conference. I also note his inclusion of the word "rehabilitation" in Amendment 198.
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11.15 pm
In Committee, the Minister has explained several times that the Government's apparent lack of courage in accepting amendments put forward in the spirit of the rehabilitation revolution is based on their appreciation that the electorate would not accept what was being proposed. I believe that the public would accept these amendments if they knew how ill served they are by the punishment agenda, which is preached by such as the Daily Mail and regrettably swallowed by too many people who should know better.
It is often said that there are no votes in prisons. I absolutely agree because they are inanimate objects and the voting issue should not be prisons but the prisoners they contain. The aim of the criminal justice system is to protect the public by preventing reoffending. In line with this, the role of both prisons and probation is to protect the public by rehabilitating those awarded a custodial or community sentence so that they live useful and law-abiding lives on release. That is achieved by first assessing what has prevented their doing so thus far, and then attempting to rectify that in the time made available by the sentence of the court.
In any civilised country, which is what we purport to be, the deprivation of liberty, imposed by a sentence, is the only punishment allowed in this process. Further punishment through the way in which sentences are administered is not to be tolerated, which is why I so deplore the addition of the word to the roles of the prison and probation services, and its inclusion in the Title of the Bill. To emphasise No. 10's error, anyone reading or listening to our deliberations on Part 3 of the Bill in particular would realise that rehabilitation is what they are all about.
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