Furthermore, as the costs will be treated as an increase to the fine and subject to the same sanctions for late payment, it is feasible that people could find themselves trapped in a downward spiral, with ever less ability to repay growing costs. No one will benefit from this. Such situations can be avoided if the new liability for costs outlined in the Bill is subject to the same consideration of means as the initial fine. These are set according to the Criminal Justice Act and the magistrates’ court sentencing guidelines, which require the calculation of fines to be based on relevant weekly earnings, disregarding housing benefit, child benefit and tax credits. The guidelines state:

“The aim is for the fine to have an equal impact on offenders with different financial circumstances; it should be a hardship but should not force the offender below a reasonable ‘subsistence’ level”.

I am sure that noble Lords will agree that the important principles of fairness and subsistence should apply also to subsequent increases in the amount payable. Should administrative costs be added at a standard level rather than through a flexible means-based formula, the poorest offenders will find themselves the hardest hit and potentially struggling to meet basic living costs—in direct contrast to the existing safeguards.

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I will take the situation of a single parent in receipt of benefits who has been fined for a minor offence. The fine, according to the guidelines, will be set at a reasonable level, disregarding the benefits reserved for covering his rent and supporting his children. However, should he miss a payment for whatever reason he will be liable, under the provisions of the Bill, for extra costs. If his circumstances are again taken into account, he may have to pay slightly less than the full costs. The Courts and Tribunals Service will still recover some of the expenditure incurred through issuing reminders and managing his account, while he will continue to meet other basic outgoings for himself and his family.

However, if his circumstances are ignored and he is expected to pay the entirety of the costs or a standard sum, he could feasibly be left struggling to meet the increased repayment rate. In this case, his only recourse might be to use his housing benefit, child benefit or even a payday loan, to the clear detriment of his family. This is surely not the Government’s intention, but it has raised concerns among charitable organisations and other groups, which feel that despite the understandable principles behind this part of the Bill, inappropriate and potentially unmanageable financial burdens may fall on offenders. Caritas Social Action Network, the social action arm of the Catholic Church in England and Wales, has warned of a detrimental personal and societal effect should the change leave people unable to meet basic needs, particularly in cases where they have dependent children or other debts to cover.

I ask the Minister in conclusion to ease these concerns by clarifying what consideration of an offender’s financial means will be taken into account when deciding the level at which the new costs will be imposed. Will he also say how the principles of fairness and subsistence underpinning the current process will be protected? A great many people are anxious to know precisely what the Government have in mind.

5.33 pm

Lord Alderdice: My Lords, I will speak about the NCA and in particular those aspects of it that relate to policing arrangements in Northern Ireland and to relations with the Republic of Ireland. Having glanced down the list of speakers, I do not think that these areas will be covered by other noble Lords. I am particularly interested in this matter as a Northern Ireland Member of your Lordships’ House, and also as the Liberal Democrat co-chair on Northern Ireland policy.

I will start with some general issues. When SOCA was established and was due to absorb the role of the Assets Recovery Agency, there was considerable concern in Northern Ireland about the loss of the public effect that the ARA had had in not only taking assets away from criminals but making it very clear to the public that this was happening, and sending a public shiver down the backs of paramilitaries. Apart from the legal effect, it had a serious public effect on people in Northern Ireland from all sides of the community. The Independent Monitoring Commission, of which I was a member, expressed anxiety that after moving to SOCA that might not be so evident. There were also

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concerns about whether SOCA would retain a footprint and a strategy informed by the needs of Northern Ireland.

It is my perception that the concerns were well grounded and that in public terms, whatever SOCA has done by way of assets recovery, it has not had the same impact within the community. As we move to the National Crime Agency, my concern is that it may be difficult for a body that sets its priorities here in the south-east of England to have a public impact on some of these important issues in Northern Ireland. I wonder whether the priorities will remain the same. It was very clear to my colleagues and me that smuggling across the border and fuel laundering, for example, were massive in Northern Ireland but small beer for HMRC, so they were not prioritised. The number of officers put to task was minimal. As we move to a new agency, my concern is that the problems connected with the establishment of SOCA may be repeated.

When Revenue and Customs were brought together, the new HMRC incorporated a lot of Customs powers that had not been available to the Inland Revenue. There was not a great deal of debate about that and I am not sure that all those powers should have been transferred to the new HMRC. I seek the following reassurance from my noble friend the Minister. When the new agency absorbs the responsibilities of other bodies such as the National Policing Improvement Agency, which does not have all the powers that SOCA had, will there be any differentiation or will we see simply a centralising and increasing of power by a centralised and centralising agency?

On the new structures that will be established, I wonder how well they have been explored. There is—at least until Mr Salmond has his way—only one land border for this country, which is with the Republic of Ireland. I see that one of the four commands set down is border policing. This is something of which we in Northern Ireland have been very conscious. The noble Lord, Lord Reid, who is in his place, was very aware of that in his time. I am eager to know whether the Home Secretary has had discussions with the Minister of Justice in the Republic of Ireland, because I cannot see how it will be possible to continue with the excellent relationship that we have with An Garda Siochana and the Ministry of Justice if we have not had direct discussions with our colleagues in the Republic of Ireland in advance of bringing forward a measure to Parliament. Has this been discussed at the British- Irish Council, for example? It is the kind of thing that that body was put in place to discuss.

On the smuggling of drugs, people and fuel, the land border is so permeable that it would be impossible to deal with organised crime without addressing this—and without addressing it in co-operation with our colleagues on the other side of the border. Here I come to another problem. The Bill proposes that it will be possible for the agency to take over counterterrorism functions; there is an order-making power. I find it difficult to see how an agency of this kind could deal with organised crime in a place such as Northern Ireland if it did not incorporate counterterrorism functions. While it is not the case that all organised crime is from paramilitaries—the truth is absolutely the contrary—nevertheless there is sufficient paramilitary involvement

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to require an understanding of counterterrorism functions; I cannot see how it will be dealt with without the inclusion of those functions. In my work over a long period of time I have been very struck by the fact that An Garda Siochana incorporates the functions of intelligence, organised crime and community policing in one organisation. I am aware that it is good to bring these things together but I am not absolutely convinced that the Bill does that.

Where I have the greatest difficulty is on the question of Northern Ireland itself and its policing arrangements. Policing was the most exquisitely sensitive issue in all the negotiations, far more so than many of the political institutions and structures that many people thought were the key issue. And yet it seems to me that we may have a real dilemma in getting this Bill through because this will require a legislative consent Motion in the Northern Ireland Assembly, maybe even in more than one department. I think for the Department of Social Development there are some issues where an LCM may be required but certainly in terms of the Department of Justice it will be required. I know that my right honourable friend and Secretary of State in another place, Owen Patterson, and the Home Secretary have engaged with David Ford, the Minister of Justice in the Northern Ireland Assembly, and that has been a fruitful engagement.

I know there were proposals that the director-general of the NCA would have the powers of a constable in Northern Ireland. That would effectively produce—certainly in the perception of people in Northern Ireland—a second police force in Northern Ireland with completely different governance arrangements. I fancy it might be difficult to get a cross-community agreement for an LCM in the Northern Ireland Assembly on that and so the Home Secretary has very sensibly pulled that back. The director-general in the original Bill could ask the Department of Justice to direct the chief constable. Fortunately, there has been an understanding that the Policing Board needs to be involved in this kind of thing and the chief constable needs to have these matters discussed rather than have directions made and so there has been a removal of some of the provisions and an instruction that any changes would require the consent or approval of PSNI and of the chief constable, which is very reasonable. But I fear that if any consultation between the director of the NCA is only with the chief constable and not with the First Minister, the Deputy First Minister and the Minister of Justice, you put the police chief constable in a very political position where he or she might be asked to make what would inevitably in Northern Ireland be seen as a highly political decision to allow the director of the NCA to extend the powers. It seems to me we have done such a lot to try to take the issue of the politicising of the police out of the situation that it would be very ill advised to move in that direction. Therefore, although there has been some improvement in the Bill, I suspect that it will be necessary to ensure that not just the chief constable but also the First Minister, the Deputy First Minister and the Minister of Justice are consulted.

As I say, there are inclusions of a requirement to consult the Policing Board and that is excellent but I am wondering how the Bill has got to this point with

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what I perceive to be real vulnerabilities on the Northern Ireland front. Can my noble friend let us know whether the Executive have yet discussed the question of a legislative consent Motion not being able to be brought forward successfully and given any indication? My understanding is that the Justice Committee has not been able to discuss it because the Bill has only become public very recently. I fear that it might be very difficult to get a legislative consent Motion through, in which case it could well be that Northern Ireland would have to be excluded from the Bill, and that is not without political implications either for those on the Unionist side of the House in Northern Ireland. So I look forward to what my noble friend has to say in giving guidance on this. There have already been very helpful discussions with the Minister of Justice and substantial movements on the part of the Home Secretary but I rather suspect there may have to be more discussions, not just with the Minister of Justice in Northern Ireland, and perhaps more constructive engagement from the Home Secretary and more movement on this issue.

5.44 pm

Lord Condon:My Lords I declare my registered interests in policing and the private security industry. I want to speak primarily, as you would expect, about Part 1 of the Bill and the creation of the National Crime Agency. I warmly welcome the creation of the National Crime Agency and I wish Keith Bristow, the inaugural director-general, and his team every success. I hope the new agency gets off to a confident and successful start. However, I think the Government still have a huge challenge to demonstrate to your Lordships’ House and beyond how the National Crime Agency and their other proposals for policing all fit together in a cohesive and comprehensive way. Their plans for policing must work from the bottom up from the local level of the police force and from the top down from the new NCA in a joined-up way. The Minister acknowledged this in his opening speech.

Sadly, I still have residual concerns that we may be left with a disjointed patchwork of policing with significant gaps and a lack of co-ordination. I will explain why. Scotland, for example, is taking a different route. Local, regional, national and international policing issues will be delivered by a single police force with local accountability being accommodated within the single force structure. In November we will have over 40 newly elected police and crime commissioners, some of whom may be elected by less than 10% of the electorate if the predictions for very low turnouts come to fruition. These new police and crime commissioners will, by definition, be intensely parochial. They have to be. They will focus only on local issues and will be looking for re-election exclusively on local performance and local popularity. How, then, will the National Crime Agency and any other regional or national structures take care of the very important regional, national and international policing issues and concerns?

Before looking at the Bill’s provisions for the new NCA, it is worth considering just for a moment what is being simultaneously dismantled or potentially

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downgraded by the Government as they create the NCA. You have already heard that the Serious and Organised Crime Agency has been in place for six years and its staff and functions will provide the core or spine of the new NCA. But the NCA must be far more than just a change of name as SOCA becomes the NCA. I mean no disrespect to the professionalism or the endeavour of colleagues who have worked in SOCA but the metamorphosis from SOCA to NCA must be far more than in name only. The National Policing Improvement Agency which has looked at police leadership, performance standards and information technology will be disbanded and we have no clear picture of how it will be replaced. The future of the Association of Chief Police Officers is uncertain, with its funding and its role still to be resolved, but there is a strong presumption that, at the very least, it will be downgraded in importance and role.

Against this background, how will the new NCA provide all the policing needs above the local police force level? I have three areas of concern: first, resourcing levels, secondly, dealing with terrorism, and thirdly, the gaps and grey areas that may be left out because they do not fall comfortably within the NCA remit. I am concerned about the planned resources for the NCA. I have said many times in your Lordships’ House that the police service cannot be immune from cuts and savings. I have spent the past 12 years in the private sector delivering more for less and I am very comfortable with that concept. However, I do have real concerns about the resources being allocated to the National Crime Agency. New bodies in the public and the private sector inevitably have start-up costs. Other noble Lords have mentioned their concerns about resources. There is no new money for the NCA. It will inherit the budgets and the 20% reductions of the constituent bodies it is taking over. Despite my enthusiasm for the new agency, its budget proposals look perilously stretched. I hope the Minister can reassure your Lordships that the NCA will be more than just a rather feeble co-ordinating mechanism sitting above the units that are already in existence, but I fear that resource limitations may force it down that avenue. The NCA must be better than the Serious and Organised Crime Agency, and it must be better than the UK Border Agency. Good leadership and determination will go a long way to ensuring its success, but this new agency must not be allowed to falter through unrealistic budgets.

My second area of concern relates to terrorism, which other noble Lords have mentioned. Clause 2 sensibly provides for the Secretary of State to make further provision about the NCA counterterrorism functions. In essence, what is at stake here is whether the status quo should prevail, with the Metropolitan Police retaining its national co-ordinating role with operational hubs around the country, or whether the co-ordinating role should be transferred to the NCA, as the Home Affairs Select Committee in another place recommended. Again, very sensibly, the Minister said in opening that no decision will be taken until after the Olympics.

I am genuinely relaxed if there is to be change, but I urge those making the decision to do so on the pragmatic grounds of what is likely to work best and what is

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likely to provide the best levels of protection for the public. The decision on who should lead on terrorism should not be about what looks tidy on an organisational chart or the seductive impact of the word “national” in an agency’s title. The fight against terrorism is as much about hearts and minds as it is about dramatic operations and arrests. With over 80% of terrorist incidents happening in London and the successful integration of neighbourhood policing, intelligence gathering and hearts and minds projects in the community, it will require strong empirical evidence and a compelling case, as the Minister said, to prove that the new National Crime Agency is better placed than the Metropolitan Police to lead this endeavour. The only assurance I seek from the Minister on counterterrorism is that the decision as to who should lead on combating terrorism will be based on what is most likely to protect the public—no more, no less.

My third and final concern relates to gaps and grey areas and things that the Bill is silent about. The disbanding of the National Policing Improvement Agency and the potential downgrading and functionality of the Association of Chief Police Officers could—I emphasise that it is only “could”—leave gaps and grey areas which the National Crime Agency is not mandated to deliver in any respect at all. Who in the police family will worry about and take responsibility for the police response to multi-location, multi-force riots which historically take place every so often? Who in the police family will worry about and take responsibility for responding to national employment disputes such as the recent tanker drivers’ threatened strike? Who in the police family will worry about multi-force natural disasters such as floods or diseases like foot and mouth?

Clause 5 is about the relationship between the NCA and other agencies. It enables and encourages voluntary arrangements and, in limited circumstances, allows the director-general to direct co-operation from local forces. Very sensibly, the Bill envisages more than one force taking part, with the NCA, in a coalition of the willing or, in extremis, a coalition of the directed, but it does not deal with any of the concerns I mentioned earlier. We need reassurance on who will worry about and co-ordinate some of the issues that do not sit comfortably within the NCA.

In conclusion, I genuinely welcome the Bill. I also welcome the new drug-driving offence, which I think will improve road safety. However, as other noble Lords have said, there are some challenges in the detail. I am excited about the potential of the National Crime Agency, but I am concerned that inadequate resourcing may hamstring it and reduce it to an anodyne co-ordinating body rather than allowing it to be the potent force for good that, in the public interest, it deserves to be. I am concerned about counterterrorism and that changes may be based on organisational tidiness rather than on what is most likely to deliver public safety. Lastly, I am concerned that as the Government dismantle, downgrade and rebuild the constituent parts of our policing model, they may inadvertently—I think it would be inadvertently—create gaps and grey areas which we need to think about plugging and clarifying.

I know that the Government are still making up their mind about some of these issues. However, they

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have unleashed a programme of change that replaces core elements of police accountability and independence, most of which have been enshrined in our system since 1829. So it is the Government who are under an obligation to convince your Lordships’ House that what they are putting in place will provide the public with joined-up policing locally, regionally, nationally and internationally. The proposals for the NCA are an important part of the overall police jigsaw, but as this Bill passes through your Lordships’ House, I intend to test whether the pieces of the police jigsaw genuinely fit together, whether the Government really know what the picture should look like, and which pieces, if any, are missing.

5.56 pm

Lord Harris of Haringey: My Lords, I should declare my interests as chair of the Audit Panel for the Metropolitan Police and the Mayor’s Office for Policing and Crime, and as an adviser to KPMG, Airwave Solutions, Lockheed Martin UK and a number of other companies that provide services to police forces around the country. It is a privilege to follow the noble Lord, Lord Condon, in the debate. I, too, want to speak primarily about Part 1 and the new National Crime Agency.

The Government’s intention to create a National Crime Agency has been known about for almost two years. However, we have yet to hear a clear explanation of what the problem is with the existing arrangements that these changes are required to fix. I am sure that the Government’s policy is, “If it ain’t broke, don’t fix it”, but perhaps it goes a bit further than that by saying, “Even if it doesn’t need fixing, take it to pieces anyway”, because we are not at all clear about which problems will be solved by these reorganisations. Given that the Government’s intentions have been clear for the past two years, we have to ask what has been going on during that period. We still do not have a definitive version of the strategic policing requirement, and we do not see any sign of the NCA framework document, even in draft, although it is pivotal to understanding how the new arrangements will work.

My understanding is that, because of this pending reorganisation, senior people in SOCA and the other agencies have spent the past two years sitting in meetings arguing with officials from the Home Office and other bodies rather than devoting themselves to their main purpose, which is that of fighting serious and organised crime. But all the meetings that have taken place over the past two years seem to have failed to produce anything definitive on how the new arrangements are supposed to work. What we are told about the likely organisational structure suggests that we are going to have a series of silos that are spatchcocked together. If that is all it is, frankly it is not clear why the reorganisation is better than a general injunction on the different organisations that currently exist to work together better. Moreover, there remains a lack of clarity about one of the central issues as to how the agency is going to work—a lack of clarity about the powers of tasking and co-ordination, whether voluntary or mandated.

We spent many happy months in your Lordships’ House discussing the Police Reform and Social Responsibility Act. That Act clearly states, as does the

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policing protocol, that elected police and crime commissioners are responsible for the totality of policing within their jurisdiction and that they alone are publicly accountable for the delivery and performance of policing. That responsibility is placed clearly in their hands on behalf of the electorate.

Under this Bill, directed tasking arrangements allow the Home Secretary to empower the director-general of the NCA and allow the director-general of the NCA to task police forces and other law enforcement agencies to carry out specific activity. While the PCC would have to be notified when such a direction is initiated, this tasking would in practice interfere with the operational independence of the chief officer as set out in the Police Reform and Social Responsibility Act, and interfere with the police and crime commissioner’s responsibility for the totality of policing. My prediction is that, unless this is handled correctly and there is rather more substance to it than is contained in the Bill, conflict is going to be inevitable.

The whole point of these new accountability arrangements created by the Government is that police and crime commissioners will be elected with a mandate to deliver in respect of local concerns. That is what they are there to do. What is going to happen when the elected police and crime commissioner for Loamshire or some such place decides that his or her number one priority is going to be addressing volume street crime in Loamshire and its larger towns and yet suddenly there is a directive to divert resources from Loamshire to somewhere else to help deal with particular problems of organised crime, when for the public of Loamshire—the electorate that elect the police and crime commissioner—organised crime is not a particular issue facing that local community? How that is going to be managed is not clear from the Bill.

Indeed, the whole Bill poses a series of questions. Who is accountable to the public for activity that is being directed? When things go wrong—as they will—is the Home Secretary or the NCA director-general liable for any repercussions from this activity? How is this going to interfere with the PCC’s setting of local strategic priorities and indeed that accountability of PCCs to the public that the Government tell us is so critical? Will the police and crime commissioner for Loamshire or for any other area be able to veto a direction using his or her powers? Presumably that will be the case if it is a voluntary direction because that is my understanding of what “voluntary” means. What if it is not? What are the implications if the chief officer of police accepts a voluntary direction but his or her police and crime commissioner says, “No, I do not think that is in the interests of our local community, which I am elected to defend”? How is that going to be resolved? Who will be responsible under those circumstances?

Of course, the Government have got a let-out clause, as you would expect. I am sure the Minister is aware of paragraph 30 of Schedule 3, which gives the Home Secretary the power to amend the requirement to get prior consent before issuing directions. So we are actually being told that this is not going to be voluntary but there will be this power to dispense with the requirement to have prior consent. I suggest that this

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is going to create more conflict and more difficulties. Again, perhaps it is not very helpful that the detail has not yet been worked out.

This situation is made all the stranger when you observe that this new agency seems to have virtually no governance arrangements. The director-general reports and is accountable to the Home Secretary, who is in turn accountable to Parliament. There is no board; there are no non-executives; there are not even a few token elected police and crime commissioners sitting in that structure perhaps to provide some coherence with the expressed wish of the local electorate about police and crime priorities. There is no mechanism for scrutinising what is happening. Even the elected police and crime commissioners—which some of us were not hugely enamoured of—had these scrutiny arrangements created within the local authority structure. There is no parallel here.

Of course, the legislation contains promises that the director-general will be operationally independent, but what will that amount to in practice? How will it be enforced, and who is going to scrutinise that operational independence in the absence of any of those governance structures? Let us be clear: operational independence is not all that it might appear or be cracked up to be. It certainly does not apply to policing equipment. I suspect that most chief officers of police would think that their choice of equipment is very much part of their operational decision-making. I do not personally always agree with them on that, but paragraph 1 of Schedule 4 allows the Home Secretary to make regulations on the use of specified equipment and the NCA director-general will be required to comply. There is not much operational independence there. This is the Home Secretary, to whom he or she is accountable, saying, “You will or will not use this type of equipment”. That hardly sounds like operational independence to me.

Then there are the very strange provisions under paragraph 4 of Schedule 5. I am sure that the noble Lord, Lord McNally, will explain to us precisely why these are here. Paragraph 4 creates an advisory panel; a new quango, if you like—from a Government who promised us a “bonfire of the quangos”—and what is this new advisory panel going to do? It is going to give advice to the Home Secretary on whether the director-general has sufficient training to carry out his operational powers. I wonder where they dream up things like this—which cellar in the Home Office is responsible for thinking up new committees to do this sort of thing.

This proposal is certainly not a carry-over from the legislation that created the Serious Organised Crime Agency, because it was not thought necessary to have an advisory panel to decide whether or not the director-general of the Serious Organised Crime Agency had the necessary training to carry out their operational functions. So why is it here? Is it because the Home Secretary is planning to replace the current director-general with an individual whose qualifications are so questionable that a panel is needed to test them? That is as may be, but paragraph 5 explains how the Home Secretary can ignore the advice of that panel under any circumstances.

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We have to question what model of organisation was used for devising the governance structures for the National Crime Agency. The best example of that, one with which the Home Office is intimately familiar, is the relationship between the Home Secretary and that paragon of effective service delivery, the UK Border Agency. That relationship has worked so well in recent months, between the Ministers and the people with executive responsibility of the agency concerned—two impossible demands before breakfast and the agency, of course, has to comply.

Finally, I will say a word about Clause 2, which allows the Home Secretary by order—admittedly subject to the super-affirmative procedure—to add counterterrorism to the functions of the National Crime Agency. I have to question whether a decision of that magnitude should properly be done simply by order. Let us also be clear: if counterterrorism becomes part of the functions of the National Crime Agency, it will totally transform the National Crime Agency. This body, that has taken two years in gestation merely to talk about a series of organisational silos spatchcocked together, will suddenly have spatchcocked onto it an even larger organisation completely distorting and changing the priorities.

As the noble Lord, Lord Condon, said, it may or may not make sense ultimately to have counterterrorism as a function of a national agency of that form. However, having been involved in the convoluted discussions to get the current structure in place, I think you have to be very clear about the case you are making before you embark on those changes and very clear about why you want to go ahead with them. The experience in other countries—according to the FBI, for example—is not always a happy one in terms of relationships with local forces regarding counterterrorism. There is a real danger of divorcing a counterterrorism elite squad from ordinary policing, not only in terms of intelligence but also in managing community relations following operational decisions.

I am sure the intentions of the Bill are fine. The Government had two years to move from intentions to detailed proposals but in those two years we have yet to see the fruits of their labour and to understand exactly how these new arrangements are intended to work.

6.10 pm

Baroness Neuberger: My Lords, I shall confine my remarks to Part 2 of the Bill. I was honoured to be invited to chair the advisory panel on judicial diversity by the then Lord Chancellor, Jack Straw, and to continue its work under the present Lord Chancellor, Ken Clarke. We made a number of recommendations and were absolutely delighted and not a little surprised to find that they were accepted by the Government in their entirety. For that reason, I wish to congratulate the Government, particularly the noble Lord, Lord McNally, who I know has thrown his personal enthusiasm behind all this, on what is proposed in the Bill so far.

In these provisions we have the beginning of a way forward. There is a real need for the judiciary to be more reflective of the community it serves, as the noble and learned Lord, Lord Mackay of Clashfern,

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has said. As Lady Hale, the single female member of our Supreme Court, put it in evidence to the Constitution Committee:

“A woman litigant should be able to go into the Court and see more than one person who shares at least some of her experience. I should not stick out like a bad tooth, as I do at present”.

However, let us be clear. We did not think back in 2010 when we reported, and nor do we now, that increasing diversity in the judiciary would be a speedy process. Nor did we think that it was only for the Government to change. Legal professionals, the judiciary and some of our senior law firms will also need to take ownership of these issues. We were encouraged by the positive messages coming from some of the most senior judges in the land, but enabling judges in the most senior positions to work flexibly is only a beginning. Of course we need the legislation to make it possible but even more important, as the Minister said at the beginning of this debate, is a change of culture within much of the senior judiciary and beyond. They need to begin to think differently about how people might work and realise that things do not have to be done just as they always have been.

We know that flexible working is possible and that provisions have been made for sick and widowed judges to work more flexibly on an ad hominem basis in the past. If it is possible in these circumstances, it is possible and—for diversity and other reasons—desirable to do it more widely. So we applaud the measures in Schedule 12. We like the idea of,

“no more than the equivalent of 12 full-time judges of the Supreme Court, rather than exactly 12 judges”.

This provision, and the fact that it is being made, sends important messages to women with children, anyone with caring responsibilities and others for whom an absolutely full-time role might be difficult.

We also welcome the so-called tipping point provision in Schedule 12, which we also recommended. Clearly, these changes should not and would not change the overriding principle of appointments based on merit, as the noble and learned Baroness, Lady Butler-Sloss, has said. However, they should encourage clear career progression—a judicial career, rather than a career judiciary—and applications from a wider talent pool than at present

Let us be clear. We have a wonderful judiciary in this country. It is highly talented, highly independent, not always beloved of Government—nor should it be—and of great merit. None of this desire to increase diversity is in any way a personal criticism of the present judiciary. Perhaps I should declare an interest here as sister-in-law of the Master of the Rolls. However, he is on record as saying to the Constitution Committee:

“The main problem is the cast of mind. Most of us think of a judge as a white, probably public school, man. We have all got that problem”.

I agree absolutely. Even that does not begin to tackle something even more complicated, which is the nature of the selectors if we are not careful. When I gave evidence to the House of Lords Constitution Committee, I said:

“We all have an inclination to appoint people who are like us”.

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I spoke from experience.

“I certainly found as Chief Executive of the King’s Fund that an astonishingly large number of middle-class, white, rather bossy women were being appointed”.

In jest I added:

“I cannot think why that should be”.

Of course, I can think exactly why that is, and I am eternally grateful to David Bewers and others at the King’s Fund who pointed out how we were appointing people and made sterling efforts to broaden and widen our pool. However, appointing people in our own image is a natural human reaction. That is why, where the judiciary plays an even greater constitutional role than it did in the past, it is so important that the judges should not be always in the majority—or arguably ever in the majority—in appointing people to become part of their own number. Like Lord Justice Etherton in his evidence to the Constitution Committee, I think that,

“the judges cannot be purely a self-appointing body”.

I am delighted that the most senior judges will not in future be involved in the appointment of their own successors. Having an independent lay person as chair of the selection panels for both the Lord Chief Justice and the President of the UK Supreme Court, rather than a judge, is a very good thing. I am also pleased to see proposals in the Bill to allow for easier transfer between the tribunals and the higher courts, which was one of our main recommendations for increasing diversity, given that the tribunals are by and large infinitely more diverse in their judicial membership than the other courts.

However, and now speaking personally and not as part of the advisory panel, I do not support the measures to give the Lord Chancellor the right to sit as a member of an appointing panel of the Judicial Appointments Commission. The idea of the Lord Chancellor sitting on the selection committee for the appointment of the Lord Chief Justice or the President of the UK Supreme Court worries me greatly. I have no doubt that this Lord Chancellor would be scrupulously fair and bend over backwards to do the right thing but he will not be in post for ever and he cannot guarantee his successors.

There is a constitutional issue here. The principle of judicial independence is an important one and that means that neither the Lord Chancellor nor Parliament should be given enhanced powers to decide who becomes a judge. That means that lay involvement of the highest calibre and the greatest independence is essential in the appointments process. That puts a huge burden on the Judicial Appointments Commission. It is early years for the JAC and I congratulate the noble Baroness, Lady Prashar, on all the work she has done to enhance diversity in her time, as has her successor, Chris Stevens. My panel was delighted to the see changes in the specific merit criterion about dealing fairly that were made recently by the JAC. One of the changes was to put in an awareness of the diversity of the communities that the courts and tribunals serve and a commitment to justice, independence, public service and fair treatment. We wait with interest to see how people applying to become judges measure themselves against those criteria in the coming few years.

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The Constitution Committee argued hard that merit should remain the sole criterion for appointment. We also held that view strongly. The Constitution Committee did not consider merit to be a narrow concept based solely on intellectual capacity or high-quality advocacy. It said:

“We refute any notion that those from under-represented groups make less worthy candidates or that a more diverse judiciary would undermine the quality of our judges”.

We absolutely agreed.

Therefore, we are left with much to do. The advisory panel regarded it as essential to introduce appraisal for the judiciary on diversity grounds, having been told by many more junior judges and possible candidates for judicial office what a difference that would make. The Constitution Committee, as the noble Baroness, Lady Jay, has said, absolutely agreed and supported that. We know there are financial issues here, but we believe that it is possible to have a less than gold-plated appraisal system, fully owned by the judiciary itself—possibly even 360-degree appraisal to allow judges to feel confidence in their performance—which is particularly important for those who do not come from the most conventional backgrounds and legal experience. Benchmarks in the appointment of judges should be set and monitored, and the judicial diversity taskforce should own that benchmarking, examine it and take action regularly. Indeed, today’s Bill is evidence of the Government’s willingness to take these issues seriously. Sustained effort is also needed to improve things, and that needs to be made jointly by the judiciary, the professions and the Government.

I ask the Minister to assure me that the judicial diversity task force will continue to own this field and will benchmark and take action as necessary, with full co-operation with all those who need to be involved. I ask him also to say something about when funding might be found to allow for appraisal in the judiciary.

The noble Baroness, Lady Meacher, the chair of the APPG on Drug Policy Reform of which I am also a member, had planned to speak today but has had to attend meetings in Brussels. She asked me to say that she will contribute on that matter at later stages of the Bill, as I imagine will people on all sides of the House.

6.20 pm

Lord Prescott: My Lords, I should perhaps declare my interest as standing as a candidate, if elected by my party, for police commissioner. That has caused me to look closely at what the Government are proposing. If doubts have been expressed in this debate and by the Constitution Committee about the courts and the role of the police commissioner, they reflect not uncertainty in the Government but a contradiction. On the one hand, they say that there should be local control of policing; on the other, they make sure that the control lies at the centre with the Secretary of State. It is the biggest centralisation of our police that we have witnessed for many a year. All you have to do is read what the Home Secretary said to the previous Police Federation conference—not the last one; she had difficulties there. On starting out on this road, she said:

“I’m not interested in running the police”.

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She later said:

“That principle—that we are best served by a police force run by professionals rather than politicians—is at the heart of this Government’s plan to cut crime”.

Since crime has fallen by 50% less than under the previous Administration, and it is now being proposed to break up the system then in place, perhaps that is not the best example.

The Home Secretary talks about a change in the policing landscape. She has announced in this Bill the establishment of the National Crime Agency. People have pointed to the conflict between the powers given to the director-general of the institution and those given to other bodies and the chief constable. If you look carefully at this Bill, you see that it is undoubtedly true that power is given to the director-general to direct the chief of police—that is set out in Clause 5. Curiously, the only exception, where you have to seek the permission of the Secretary of State, is the British Transport Police. I do not know why that is so. I understand that it is a separate organisation, but it has a right, if a direction is given by the director-general, to get it confirmed by the Secretary of State. If that is the case, it should apply to other areas.

We have to reflect on what the Government are doing in this transfer of power. I have heard the noble Lord, Lord Condon, and others talk about the fight against terrorism. There is an article in the Telegraph—I got it by mistake; it is not my usual paper—by a man people will not be surprised to learn, given my background with the Met, for whom I do not have great admiration, John Yates. Entitled “A British FBI won’t make us any safer”, it argues that taking responsibility from the Met—I am not a great fan of it either—and distributing it to another body will break up that co-operation of the willing that the noble Lord, Lord Condon, talked about, where chief constables in an area get together with the director-general of the crime agency. That seems common sense to me; I have no objection to the crime agency. All Governments have tried to co-ordinate efforts when crime has gone beyond an area of operation, nationally and internationally—terrorism, drugs, et cetera. That is right and I have no dispute with it.

However, I do not believe that the Government are merely confused in what they are doing; I believe that it is a deliberate policy to centralise power and to give less power and fewer resources to the regions. Who is going to be responsible for that? As the noble Lord, Lord Harris, has pointed out, local responsibility belongs to the commissioner and the police chief. I assume that they will have a five-year plan for dealing with police and crime. The power is given to the commissioner to sack the chief of police if necessary. It would be rather interesting if the chief of police was operating on what he thought was a nod and a wink from the Secretary of State. I hear that ACPO has not been abolished yet, but apparently it is on the way. That will be set up by the council of chief constables who advise the Secretary of State. Do you think that this Secretary of State might advise those chief constables on what her priorities are? Will they have to go back and change the plan that has been agreed with the police commissioner? Who is running the local crime strategy and the policy for delivering it? I know what will happen—it is called localism under this Government.

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They do not give you the resources and they then say, “You’re responsible”. They will then blame the commissioner and the chief constable for not achieving a reduction in crime. The very policy that they are pursuing is to reduce resources by 20%, the police by 16,000 and achieve the increase in crime that we are already coming to. But they will not be blamed any more; rather, it will be these wonderful new commissioners. That is probably why we are asked to swear a pledge of impartiality. Cor blimey, if you held this Government to that pledge of impartiality, you would have difficulty.

The Government claim on the one hand that the police force should be run by professionals and then create on the other a system that elects politicians. Even the police and crime panels being set have councillors on them. Of course the commissioners will have background and of course they must be impartial—I would not for a second think that any judgment that I would be involved in would not be impartial—but they would be judged by the electorate because they would have to stand for election again. That is what the Government say is one of the important democratic accountabilities of the new system.

This is a policy that has been thought out. It is about keeping the power at the centre, leaving the responsibility for the local area and then stripping the system of powers and resources. In my authority, Humberside Police will lose £30 million out of its budget and 400 police. Will that it make it easier to carry out the crime policy in the area? Of course it will not, but the force will be blamed for it.

ACPO had a reasonable amount of independence; there are people here who know how it works. That is now being stripped down to the council of chief constables, and it will obviously be influenced by what happens in the relationship between the Secretary of State and the chief constables.

The other matter of concern is privatisation. I heard the noble Lord, Lord Condon, say that he has worked in the private sector, which has, I am sure, done a lot of things to achieve the efficiencies that are necessary. But this privatisation programme, whether it is in the back office or the front office, is really about reducing the police from a public police force to a private police force. That is what is believed; that is what is likely to happen; and it is all about getting a cheaper kind of labour to replace the traditional force. That raises questions and concerns over whether we are replacing a public police service with a private one, which, of course, many people feel is the case. All this leads to grave concern about the role of the commissioner.

I am not resigning because I have discovered this; I think that you will find that I might try to prevent some of it. Unless I am crossing the line of impartiality, I would think that if I am fighting for my community and it tells me to reduce crime, I am going to be doing all the damn things that I can to see that that happens, even if it means arguing with the Government about it. That is a reality of people being elected by the community and who are accountable to it.

While the crime agency would not be involved in tackling corruption in the police force, there is a worry here. The report that Parliament has received from the IPCC only this week, Corruption in the Police Service, makes it clear that corruption is on the rise. The

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178 allegations of officer corruption recorded by the Humberside Police force have been a headline today in my local paper,

Hull Daily Mail

; I saw it when I got on the train. The figure in the Met is 1,800 because it is a bigger force. Of course there is a certain amount of competitive unfairness—corruption can occur with a league table—so the report proposes more resources and powers to investigate some of the claims of corruption and police complaints which are not being put forward. I hope the poor Government are reading this report and will give a response to it.

The report also highlights concern about contracts that are being agreed between the police and the private sector. The commission said that it could not get access to the information to make a judgment about such contracts. That is very worrying because a number of senior policemen have joined these private companies and are involved in the bidding. That is wrong. The Government should make it clear to them that they should not be involved in areas where they have expertise and where contracts are involved. This report makes it clear that the commission wants more information on resources. That will be an issue for the commissioner. I strongly think that is what is happening, and that was evident in Surrey. In north Lincolnshire a complete police station has been taken over—it is not just a bit of backroom work; the whole lot has been taken. We have now got C4 Security doing the high-profile work as well, all rejected by the public and very contestable. I think there is a growing concern about these matters.

The Government want to get people into this field as commissioner—and at the moment they are worrying whether they can get independent people, and are trawling businesspeople to encourage them to come out and do this job—but why is the Home Office, as opposed to in elections for the mayor and local government, prepared to pay for information about the candidates? Why is the Home Office doing what we already do for MPs, MEPs and indeed other candidates? But why is there a refusal to give out that information about the candidates? I know they say you can get it on the website. Some 7 million people do not have access to the website, according to the Electoral Commission. Let us look sensibly at what we are doing. Of course there will be arguments. This is about the centralisation of the police. It is actually nobbling local policing, whatever they say, and that is going to be an argument. Forgive me if I think that is kind of political attitude and view. Judge it on the evidence and that is what the election will be about.

6.32 pm

Baroness Harris of Richmond: My Lords, it is always a great pleasure to follow the noble Lord, Lord Prescott. In general, I am quite happy to support this Bill, and that is not something your Lordships will have heard me say often about the Police Bills that I have debated in this House since becoming a Member 13 years ago. I will therefore restrict my comments to Part 1.

Although it is a long time ago, I must declare that for a number of years I was chair of my local police authority. Also, for some 30 years I have been and still am involved in policing issues. I was a deputy chair of

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the Association of Police Authorities—soon of course to be abolished—and am currently one of its vice presidents. I was also a member of the National Crime Squad Service Authority and was a member of the Police Negotiating Board, and I held other policing responsibilities within the APA. I would like to thank the APA for the really excellent work it has done over the years. I was a founding member of that organisation and we were blessed to have the professionalism and guidance of Catherine Crawford as our first CEO. She was inspirational in bringing together a rather disparate group of police authorities and she made us into a firm pillar of the tripartite arrangement. For the first time, we spoke as a united body, and we owe her and all the staff of the APA, past and present, a great debt of gratitude, as we do all the members who have worked so hard to deliver great improvements to policing in their communities.

The replacement of police authorities by police and crime commissioners is something I would rather not dwell on and my views are well known. I simply did not want this Bill to pass without acknowledgement of the fine work and recognition the APA deserves as it gently vanishes into the sunset.

I have been pleased to see that a number of organisations with an interest in policing have sent briefing notes, in the main supporting Part 1. That is a good start. However, their concerns reflect some of mine. I remember that when SOCA was set up in 2006, I was exercised then by its governance, feeling that it was too narrow and lacked police authority member input. All the vast experience of members of police authorities of former regional crime squad bodies was dismissed out of hand, and we were told that the then chair was not prepared to consider any of those members as suitable to sit on the SOCA board.

That proved to be a great mistake, and was partly rectified by the current chair, Sir Ian Andrews, who recognised the need to engage with a much wider policing environment. I congratulate him and the former director of SOCA, Bill Hughes, as well as the current director, Trevor Pearce, on being much more open and helpful to both police forces and police authorities when they sought help. SOCA is a rather different animal now than it was a few years ago. As we have heard, SOCA will disappear shortly, as will the National Policing Improvement Agency, the NPIA. I cannot let this opportunity go by without saying a word or two about the really excellent work this body has also undertaken. It, too, has brought great improvements to the police service and has been managing the national infrastructure, research and analysis and review of police leadership and training. The NPIA was initially run by Peter Neyroud and more recently by the excellent Nick Gargan as chief executive with Peter Holland as chair. It would be utterly remiss of us not to thank them all for their dedicated work over the years and their determination to see their respective organisations move smoothly to the new framework of the National Crime Agency, and we do.

So it is around the governance of the new agency that I have concerns, just as I did when SOCA was introduced, not least now around the introduction of police and crime commissioners. I believe that insufficient thought has been brought to bear on exactly how this will all work in a sufficiently joined-up way. After all,

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as the APA and a number of your Lordships have reminded us, the PCCs are responsible for the totality of policing, and we have heard an awful lot about that this afternoon. Why not have a representative number of them embedded in the NCA, an idea I spookily share with the noble Lord, Lord Harris of Haringey? It would be a good opportunity to link up both national and local policing delivery. Who will oversee the work of the NCA? It appears that it will simply be the Secretary of State and I cannot think that will be either practical or desirable. This was a view also shared by my noble friend Lady Anelay of St Johns when speaking to an amendment during Committee on the Serious and Organised Crime and Police Bill. She said:

“It is essential for the maintenance of the rule of law that law enforcement agencies be subject to independent oversight and that they have a measure of operational independence from the Executive. It is highly undesirable that an agency with such extensive powers in relation to information gathering, investigation and prosecution should have such a close and exclusive relationship with a single government department”.—[Official Report, 5/4/05; cols. 599-600.]

There is no board of either specialist professional or independent members as there is with both SOCA and the NPIA. Would it not be at least beneficial to have the Independent Police Complaints Commission scrutinise their work as Liberty suggests?

How will the NCA be so very different from other police forces, Customs and Excise, and immigration, which have all been subject to scrutiny in the past? The NCA will, arguably, be more responsible for a range of policing functions. This is an area which needs revisiting.

My second concern is that the Freedom of Information Act will not apply to the new NCA, as has already been referred to. The Freedom of Information Act has an extensive exemption regime ensuring that sensitive information does not have to be revealed, and I do not understand why the National Crime Agency is to be exempt. Can my noble friend enlighten me? Can he also confirm whether the officers of the NCA will have the right to strike, unlike police officers?

I have a general concern about how the present duties of SOCA and the NPIA would be apportioned—again, that has been referred to. Can my noble friend reassure me that that will be clarified very shortly? At present, SOCA has identified about 38,000 individuals as being involved in organised crime impacting on the UK. In contrast, to deal with those people, SOCA has 3,984 members of staff and, as at March 2011, the NPIA had 1,820 members of staff, although I think that that will have changed radically, as many have been made redundant. Those seem to be small numbers to deal with such important policing matters, and their merging into the NCA will need very careful management. Can I assume that TUPE regulations will apply to all staff moving over to the new agency?

Almost finally, what is going to happen to the premises that SOCA and the NPIA have, some of which, such as Harperley Hall in County Durham and the police college at Bramshill, are superb and of national importance?

Finally, I have a feeling that a great deal of this work will need to be helped by critical systems analysis, if it is all to move smoothly to the new policing

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landscape. I encourage my noble friend to consider the viable systems model—which I am willing to share with him and his Bill team, but with which I shall not press your Lordships’ patience this evening—which would optimise joined-up, integrated working while delivering high levels of autonomy at all levels, which is just what we need if this new era of policing is to be a success.

6.42 pm

Baroness Prashar: My Lords, I wish to speak about the part of the Bill which relates to judicial appointments. In so doing, I declare interest as the former inaugural chairman of the Judicial Appointments Commission, a post which I held from 2005 to 2010. I fully endorse the comments made by the noble Baronesses, Lady Jay and Lady Neuberger, and commend them both for the way that they have handled the issue of diversity and kept it high on the agenda. Like them, I welcome most of the changes contained in the Bill, but particularly those which relate to part-time working. It was in 2008 that the JAC first recommended that change, because the research which it conducted showed that for many underrepresented groups, the absence of part-time working was a real disincentive. Availability of part-time working will have a positive impact on diversity. I know that people have raised the issue of practicality, but similar objections were raised when the JAC itself was set up. It was suggested that making people apply would decrease the number of applications and that we would not get high-quality applicants. That has not been the case: neither the quantity nor the quality of the applications has diminished. I am sure that ways can be found to get around some of those difficulties.

I am also disappointed that there has been no relaxation on employed lawyers and no movement on appraisals. I am very concerned that it is intended that where a selection commission is convened to select a person for appointment as president of the Supreme Court and the Lord Chief Justice, the Lord Chancellor may be a member of the selection commission. The process by which judges are appointed is of constitutional significance, and the Lord Chancellor should have a limited role in the appointment of senior members of the judiciary. The rationale for establishing an open and independent process for judicial appointments in 2005 was to ensure that there was appropriate distance between the appointments process and the Lord Chancellor. The Constitutional Reform Act 2005 removed the role of the Lord Chancellor as the head of the judiciary and Speaker of the House. The position of Lord Chancellor, which is legally and constitutionally distinct from that of the Secretary of State for Justice, is now a more political role than it was. That change was one reason why the role of the Lord Chancellor was restricted in the Constitutional Reform Act.

Furthermore, in my experience, the process has worked fine in practice, so why the change? It is difficult to see the rationale for it. Indeed, the Select Committee on the Constitution states in its report that:

“The Lord Chancellor should continue to have a limited role in the appointment of senior members of the judiciary; he should be properly consulted and retain his right of veto in relation to the most senior appointments. He must also retain responsibility, and be accountable to Parliament, for the overall appointments

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process. But he should not be permitted to select candidates from a shortlist, nor should he sit on selection panels. Such changes would risk politicising the appointments process and would undermine the independence of the judiciary”.

I very much hope that the Minister will encourage his department to withdraw that change.

I would also like two new provisions in the Bill. I would like the duty contained in Section 64 of the Constitutional Reform Act, whereby the JAC is required to encourage diversity in the range of persons available for selection for appointment, to be extended to the Lord Chancellor and the Lord Chief Justice. Promoting diversity is a joint endeavour between the JAC, the Lord Chancellor and the Lord Chief Justice. The JAC alone cannot bring about the desired change, and the provision as it stands creates unrealistic expectations of the JAC, because it carries the whole burden, and issues which are outwith its responsibility are neglected. For that reason, it is very important that that change is included in the Bill.

My final comments are about the selection of the JAC commissioners themselves. The independence of the JAC is crucial; it is also a body of constitutional significance. If we want an independent judiciary, the body which selects judges should be independent and be seen to be independent. It is important that the membership of the JAC continues to be prescribed in primary legislation and that any changes be brought before Parliament. However, it is equally important that how the members of the JAC are appointed is prescribed in legislation.

The Constitutional Reform Act 2005 makes some provision for the JAC commissioners, requiring that they may not be appointed for more than five years at a time, and not for more than 10 years in all. However, there is a lack of specific detail about the process for the appointment of commissioners. The Ministry of Justice’s position is that the guidance for public appointments should apply, as the CRA does not make specific arrangements. Public appointments guidance provides Ministers with considerable flexibility in making appointments and, importantly, choice in candidates recommended for selections. In my view, it would be appropriate and consistent if the provisions in the Constitutional Reform Act for the appointment of judges, which were so carefully crafted to ensure judicial independence, were also applied to the appointment of commissioners and prescribed in legislation. This would in reality and in perception secure the independence of the body that selects judges. In recommending this change, I am not for a minute suggesting that the JAC is not independent or that its current members are not independent; but this change would ensure that this independence is safeguarded in the future, because there is evidence in other jurisdictions that attempts have been made to criticise the selecting body in order to impact on the appointments. So this small change will ensure that the independence of the judiciary is guarded if the body that selects judges remains independent.

6.50 pm

Lord Wasserman: My Lords, I very much welcome this Bill, particularly Part 1 establishing a national crime agency, and I shall confine my remarks to this part.

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I take very seriously the threats that this new agency is being established to tackle: serious and organised crime, economic crime, child exploitation and cybercrime. I also believe that the policing of our borders could do with some strengthening. These threats cannot be tackled effectively by local forces on their own, by ad hoc arrangements between forces set up by groups of chief constables acting collectively, or by ACPO in response to particular events or pieces of intelligence. For this reason, I regard this new agency not as a desirable feature of our policing landscape but as a necessary one. I believe that there is degree of urgency to get the NCA established. So, while I recognise the need for careful scrutiny of this Bill, I hope that it will not be long delayed in this House or in another place and that the NCA can open for business relatively quickly.

When I returned to this country in 2008, having spent the best part of 12 years working on policing matters in the United States, I was amazed to discover that, during this period, our policing arrangements had taken a very odd turn. I found that local policing—that is, policing aimed at tackling local crime and anti-social behaviour—was being directed mainly by officials and Ministers in Whitehall, and occasionally by the Prime Minister himself.

National policing, on the other hand—that is, policing aimed at serious and organised crime and other threats that transcend force boundaries—was being directed not by the Home Office but on an arm's-length basis by an independent agency. This agency was responsible to a board chaired by a former civil servant, who had no crime-fighting experience, and included a number of distinguished and, no doubt, very able members, none of whom had ever walked a beat or felt a collar. To me, this made no sense at all either in terms of effectiveness or democratic accountability. That is why I welcomed the changes to our local policing arrangements introduced by the Police Reform and Social Responsibility Act 2011 and why I welcome the Bill that we are debating today. The Police Reform and Social Responsibility Act transferred responsibility for local policing from the Home Office in Whitehall to local communities, where it belongs. It did this by making local chief constables and their forces directly accountable to individuals who live locally—local chief constables who have been chosen democratically by their fellow residents through the ballot box.

This Bill tackles the other aspect of the mismatch in our policing arrangements that I mentioned a moment ago. It puts responsibility for national policing where it belongs, with a Secretary of State accountable to Parliament. It is he or she, not an independent board, who will appoint the director-general as the operational head of the NCA and who will decide on the agency's functions and strategic priorities. This Bill provides for these priorities to be set in consultation with “strategic partners”, but they will ultimately be the responsibility of the Home Secretary. For me, this is the heart of Part I of this Bill and is why I welcome it. While I recognise that there are details to be considered, and the noble Baroness, Lady Smith of Basildon, has already put us on notice that we will debate them in detail, I still think that there is a fundamental principle there, and I welcome that principle.

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Fighting serious and organised crime, economic crime and other national threats that face us is not a job for enthusiastic amateurs. It requires a specialist organisation established, equipped, staffed and managed for this purpose. It also calls for leadership of a high order, leadership that can command the respect of the whole policing community because it is based on a record of successful crime fighting. Keith Bristow has demonstrated such leadership, having served as a chief constable and as chair of the APCO crime business area. Like the noble Lord, Lord Condon, I welcome his appointment as the first head of the agency, and I particularly welcome the fact that he is already at work in the Home Office playing a major role in setting it up.

I would, however, like to put on record one concern I have about the role of the head of the NCA. While I strongly endorse the view of my right honourable friend the Home Secretary that the head of the agency should be a successful crime fighter and that he or she should be given operational independence to get on with the job, I believe it is essential that this operational independence should not—I repeat, not—be interpreted by the head of the agency as the freedom to spend taxpayers’ money as he or she thinks fit, regardless of any consideration for value for money. That is why I very much welcome the provision in the Bill for the agency to be subject to inspection by Her Majesty's Inspectorate of Constabulary with a view to reporting on its effectiveness and efficiency.

Finally, I return to what I said earlier about our local, as opposed to our national, policing arrangements. In less than six months, on 15 November, the electorate across England and Wales—except, of course, in London—will have the opportunity to choose their police and crime commissioners. These elections represent the very first time that the electorate will be able to express their views, through the ballot box, about the kind of policing they want for their communities. These elections represent an enormously important extension of democratic accountability, and I very much hope that members of your Lordships’ House will play an active role in encouraging the electorate to take advantage of this historic opportunity.

6.58 pm

Lord Judd: My Lords, in one sense, the message of the noble Lord, Lord Wasserman, is very powerful: modern organised crime knows no national frontiers; the dividing line between what is crime and what is so-called orthodox business becomes increasingly fudged; we have all the issues of cyberspace, and the rest. The challenges are formidable, and it is necessary to make sure that the police are organised to meet those challenges.

What I would counsel to the noble Lord, Lord Wasserman, is that we live in something rather precious. What is it that we want to live in? We want to live in a free democracy. We want to live in the kind of society in which the relationships between institutions is very complex, in which there are checks and balances, but one in which we are not building up great independent authoritarian bodies in our midst that are not a living part of that complexity. We also want a society, surely, in which citizens are citizens, not merely consumers of

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a type of democracy, and, as citizens, are playing their part in ensuring a stable and secure society. Local involvement in the responsibilities of policing is therefore a crucial part of democracy.

I have never talked to a serious policeman with real professional experience anywhere—and I have talked to quite a number in my life—who has not sooner or later said, “We can do our job effectively only if we are working with society and if people are working with us and see us as part of the society which is theirs. Then we can get on with the job. If we have a suspicious, hostile, questioning society out there, which is simply delegating responsibility to us, our effectiveness will be limited”. In the cause of the kind of society in which we want to live—one which we recognise is threatened by the most sinister kinds of development in crime, as the noble Lord, Lord Wasserman, was spelling out, but nevertheless one in which society remains in the driving seat—and the things that make our society worth living in, we have to take these issues of balance and, perhaps, the dispersal of power rather seriously. There have to be checks and balances, not just formally and structurally but in the very dynamic of society itself.

I have a certain amount of sympathy with my noble friend Lord Harris of Haringey. I have always felt, having been around in politics quite a long time now, that one of the mistakes that Governments make, whatever their political persuasion, is so often they come rushing along to the Dispatch Box with a superb solution to society’s problems without first having built up a public understanding and consensus of what problem the legislation is supposed to be tackling. I do not believe that that mistake has been avoided by the Government in this context and, in another way, I think my noble friend would agree that that was very much the point that he was making.

It is also a matter of culture, not just of organisation. That is related to how far the police are integrated with society as a whole. Most people out there—and, I imagine, within Parliament itself—are really quite exercised and worried at the moment about the amount of police corruption. That is not just an organisational issue but a cultural issue. If one goes down the road of independent agencies which are not integrated in society, does that become easier or more difficult to tackle effectively in the long run? It is not a one-way argument because some will claim that the more you are involved in society, the more the temptations arise. On the other hand, it seems to me that if we take these issues seriously we will have to look at the details and implications for society in what is being proposed very carefully as the Bill goes forward.

That takes me on to the issue of law, in so far as this Bill deals with it. I am sure I am not alone in being disturbed by the parallel systems of justice that we are beginning to develop in this country. There are too many discrepancies. If we are talking about law and justice, we must recognise that they are not necessarily the same thing but that we want law which is advancing justice. If we are talking about justice, we are talking about habeas corpus and equality before the law—of course we are. We are talking about law being not only done but seen and felt to be done. In some aspects of our new approach to administrative law—I do not for

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a moment minimise the challenges and agonising problems which are there—we are beginning to diminish those qualities. We know that we have people interned who are not told why they are interned. We know that we have advocates working in our courts who are not able to discuss with their clients what they are defending them against. How do we reconcile that with what we have always understood to be fundamental to the system of justice in our society? We cannot reconcile it. There may be an exception which we come to say is unavoidable, because of the pressures that are there. However, we had better be pretty careful that we are not beginning to let this become a rather convenient habit of organising our administrative law and thinking that we can make exceptions here, there and in the other place.

This brings us quickly into the realm of immigration, because any of us who has had anything to do with immigration knows that its administration is a disgrace in this country. That is not a partisan point; it has become so over successive Administrations. One has only to look at the number of immigration cases which, on appeal, have been proved to be absolutely up the creek and wrong. Now we hear Ministers cheerfully telling us, “Well, it would be much more sensible and rational not to have appeals against these things. If it is not working in a particular case, then it would be better to start again”—rather like snakes and ladders—“and we’ll get much more speedily to the conclusion”. That is not quite the point, is it? In law and justice, you want to know what is wrong and why. You want to pursue those matters, and not just say, “Oh well, that didn’t work. That was unacceptable—try again”. It is actually about finding out the lessons that are there to be found out. I am really rather uneasy about some of the arguments that have been slung around by government in this context.

It also seems that we have some strange contradictions about our culture in this area, because the Government keep telling us of the importance of family as the basis for a stable society. Family and family relationships are crucial to the well-being of people and of society as a whole—unless of course it comes to the realm of immigrants. Then families can be treated completely differently. If we are doing a bit of joined-up thinking about the issues that face us, we also have the challenges of security and stability in the age in which we live. Immigration is central to security and stability. Extremists operate where there is a climate of disenchantment and where there is not a sense of positive good will towards the authorities, the police and society as a whole but a sense of frustration. There are too many bad examples and heartrending experiences. If we are to have security and stability, we had better be looking to that. Every immigration officer doing a job anywhere is fighting the battle for security by asking not simply, “Is this person a terrorist?”, but, “Are we giving this person a good, reasonable experience in a terrible situation?”. We all understand that so often their situations are terrible, but are we giving them another bad experience which is likely to lead to alienation and the rest?

I would like to conclude with a brief word about alternative sentences. We have to stop prevaricating

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and playing it both ways. Do we want to protect the British people or not? If we want to protect the British people, do we really believe that one of the best ways of doing that is to achieve rehabilitation? In that way, one gets to the roots of the problem with the offender and to the issue of how that person ceases to be culturally an offender and becomes a positive member of society. If we really believe, as I do, that rehabilitation is therefore the overriding priority—for the individual, for society, and economically, because it makes economic nonsense not to have rehabilitation there at the top—why do we always slip into legislation, proposed legislation and the discussion about legislation the need to bring the public on board and to understand the anxieties of the public, and so on? If we believe that the public are being misled by a stupid press, or too much of a stupid press, then it is no good trying to appease the attitudes that result from that. It is a matter of giving the public an alternative around which they can coalesce. It means speaking out very strongly for the alternative concepts that we see as relevant, effective and right.

We all know that if we were starting again from scratch we would not have the prison system as it is. We would have lots of different types of specialist institutions for different types of people; we would be much more person-orientated, getting the person right. Of course the person must be punished for behaving badly, for breaking the law, for doing damage to society, but rehabilitation remains the issue—winning that person back into a positive role in society.

I hope that in our approach to alternative sentences we do not make the same mistakes that we have made in the prison system of having to say “No, we’ve got to demonstrate that we’re ruthless and tough with prisoners and offenders”. We have got to say, “No, we’re getting it right with offenders. We’re doing what is really going to make a difference to these offenders”. That is the issue and we have got to fight for it. We had better not think that it will be a cheap option, because it is not. If we are to do this work well, we have got to have the people in place with the right skills, the right backgrounds, the right understanding, in order to be able to do that constructive work.

We made mistakes with lunatic asylums. We said, “They’re dreadful places and we ought to get rid of, them”, and we turned a lot of people out of asylums without the provision in society to care for them. We saw families broken because of people coming home with whom they could not cope. This is not a cheap alternative. It will need a lot of resources, a lot of attention and a lot of care. There is a hell of a lot to do on this Bill, and I am sure that we will do it constructively.

7.11 pm

Baroness Linklater of Butterstone: My Lords, it is always a pleasure to follow the noble Lord, Lord Judd. He always says such nice things about me, so I take this opportunity to say that we have been listening to the voice of experience, of wisdom, and of sweet reason, so it is an honour to follow him.

We put the LASPO Bill to bed a mere couple of months ago, and with this new Bill we now find ourselves addressing more changes to other elements of the criminal justice system. I hope that the day will

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come when we take time to let new legislation bed down before creating any more, so that we can reflect a little on what we are actually achieving and where we are going: not to speak of giving time for, in this case, relevant government consultations to be completed so that they can be discussed fully and properly.

My particular interest is in Clause 23, entitled “Community and other non-custodial sentencing of adults”, which is designated a “placeholder” for the time being, while the White Paper Punishment and Reform: Effective Community Sentences is still ongoing. It will give the Secretary of State the power to make regulations on the provision, content and enforcement of community sentences and to take forward proposals in the consultation paper once final policy decisions have been taken, with amendments tabled later in the Bill. This is encouraging because it flags up the Government’s commitment to alternatives to custody more clearly than ever before.

I have often spoken in your Lordships’ House about the importance of community sentencing and how much more effective it is than short custodial sentences in reducing reoffending by a factor of 8%, which is affirmed in the White Paper. I sincerely hope that this means that this placeholder clause represents a real commitment by the Government to support, develop and strengthen the provision and its availability, particularly by probation and the voluntary sector, in the midst of the new competitive environment that the Government seek to develop. Partnership working, the hallmark of the voluntary sector, often works better in the interests of clients than the blunt instrument of the free market. The private sector must be seriously encouraged to adopt the greater benefits of co-operation or partnership where clients’ interests are concerned, which is what really matters and really works. I will return to this when the Government’s proposals become clearer.

I have just had the pleasure of once again being a judge in the Howard League’s annual community awards, which highlight and recognise best practice in working with offenders and ex-offenders in the community and which demonstrate just how much creative, constructive and really effective work is now being done all around the country by probation and the voluntary sector. It is like an annual litmus test that shows that this approach to offending is unarguably successful in practical terms and right in human and economic terms.

I was also recently invited to Liverpool by the Merseyside Probation Trust’s chief probation officer to see the range of its community-based work, which is truly impressive. I spent some time with a girl who was on an intensive alternative to custody order—an approach for young adults with entrenched problems, involving intense work over a limited span of a year—and I heard from her and her worker how and in what ways her significant problems were being addressed and how her life really was being transformed. I am pleased that the Government are now focusing on these orders.

They are still being piloted, of course, now for 15 to 18 year-olds, who account for a third of those imprisoned each year. Nearly two-thirds of this group go on to reoffend when released from custody, and the pilots already show a significant drop in reoffending. The

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very positive relationship that I saw was a key element, and the focused and intensive nature of the disposal was clearly worth every penny that was being spent on it, from every point of view. The Government are now responding to the fact that we can no longer afford to spend £50,000 or so more a year for a young person literally to sleep through his or her sentence and come out to offend again; nor, indeed, can they.

I am glad, too, that restorative justice is now being brought to the fore—perhaps at last its time has come—and, indeed, that the Minister Crispin Blunt has nailed his colours to this particular mast. It can do much to help victims of crime, who deserve as much support as possible in order to come to terms with the trauma of the experience, to demystify the offender who has caused such hurt, and to move forward; while the offender comes to realise, often for the first time, the realities of what he has done, and can find ways to make amends. I have had the privilege of sitting in on restorative conferences, and I have seen their remarkable possibilities at first hand. Their potential is great, and I trust that the Government will back the necessary training, costs and administration involved, because the benefits are enormous. I hope to hear that the Minister can reassure me on this.

While welcoming the promise of Clause 23, I also have reservations about the tone, which places very strong and repeated emphasis on toughness and punishment, which are, indeed, the central themes of the White Paper. The Lord Chancellor believes, quite rightly, that too many people who leave custody reoffend, but he also assumes that this is because the current range of provision of alternatives are neither tough nor punitive enough. The White Paper states:

“It is a fundamental principle of justice that those who are found to have done wrong should be punished”.

It adds the assumption, with no evidence adduced, that:

“Too many community orders do not include an element which the public and offenders would recognise as ‘punishment’”.

First, I suggest that there is above all a need for any punishment to be used proportionately, with decisions left to local sentencers’ and practitioners’ discretion and knowledge over its application. There will always be a tipping point, which will vary between every situation and individual, where punishment as toughness will backfire. The overuse of tags, electronic monitoring and curfews, which we discussed in the LASPO Bill, or even confiscation of assets may certainly punish, yet without necessarily preventing reoffending.

I echo the view of the excellent Justice Select Committee that making sentences more punitive will not necessarily be effective in reducing reoffending or protecting the public more. There is always the risk that it will lead to breach and further criminalising. What will really matter is that sentencers have a working knowledge of the programmes available to them in their patch through regular visits supported by proper statutory arrangements. I will return to this in Committee.

Secondly, public knowledge of our justice system is at best patchy and subjective, and is absolutely not a reliable basis for developing new approaches to sentencing. There is a high level of public anxiety today about the state of the nation generally, precipitated above all by

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the economic and financial crisis we are all in, making our lives feel worrying and uncertain. I really do not believe that this anxiety is specifically to do with reoffending rates of community penalties and levels of punishment.

There is a wonderful initiative called Local Crime, Community Sentence, provided by the magistracy in conjunction with probation, which I had the pleasure of funding in the first instance when I chaired Rethinking Crime and Punishment. It operates all over the country and delivers programmes to inform local communities of the reality of offending and the way it is managed by the courts and probation in their patch, using real case studies. Attitudes are measured before and after each session, and invariably show a marked rise in confidence in the system and a reduction in punitive attitudes.

However, the corollary of this shows that the public need to know and understand much more the realities of the criminal justice world, and much more must be done to enlighten and inform them through sources other than the Daily Mail. Public confidence and understanding come from seeing what such activities as unpaid work achieve. The fact is that community payback and unpaid work are now an acknowledged success all over the country and the source of much positive reaction within communities, resulting in increased demand for the work done by offenders. It is the one area where the public can have some real idea of what community penalties can consist of, and it is very good. Seeing is believing.

The readiness, willingness and ability to desist from reoffending depend on many factors in an individual’s life, ranging from the practical realities of a job or place to live and a meaningful relationship, to underlying feelings of self-worth, the ability to deal with problems such as addiction, or an awareness of the impact of offending on others. The level of toughness or punishment is not likely to be pre-eminent. Last week, I was at an event run by the Prisoners’ Education Trust. I declare an interest as a patron. We heard at first hand the absolutely transformative effect on the lives of those present of reading, learning and ultimately passing exams, and in some cases getting degrees. These were people with long offending histories and little previous education. For some, the change had literally started in the prison library. You would not normally equate choosing to be in a library with punishment. Importantly, they had reached a moment when they were ready for that change. That had not been brought on by punishment either.

The five purposes of sentencing are quoted in the White Paper: punishment, deterrence, reparation, rehabilitation, and public protection. We should remember that they all have equal weight when it comes to the decision of a sentence in any particular case. When the White Paper says that there is not enough punishment in the sanctions provided through community penalties, it implies that they are not unpleasant enough and that the offender must be made to suffer more. It assumes that this is what the public look for. While it argues that retribution should be at the heart of punishment, we cannot seek to make the level of unpleasant sanctions commensurate with the level of the

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crime or to devise a hierarchy of unpleasantness or suffering. In the end, that will not promote a safer or more law-abiding society, let alone represent a civilised response to those who offend. Here, I declare an interest as the mother of a wonderful daughter who is vulnerable and has been the victim of a serious assault. From that point of view also, I know what I am talking about.

Jeremy Bentham, the father of moral philosophy, believed that punishment involves a response of unpleasant sanctions that in themselves mirror or reflect in some commensurate way the actions of the offender. While he famously wrote that,

“the greatest happiness of the greatest number is the foundation of morals and legislation”,

he also wrote that,

“all punishment is mischief. All punishment in itself is evil”.

Retribution must not be part of our armoury. Rather, community sanctions should include facing up to wrong-doing, reform or recognising the need to change, repentance and even remorse, and reconciliation with the victim where appropriate. All these goals are in fact implied in the White Paper. They involve at least as much toughness of a different order, and as much difficulty or discomfort as the punitive unpleasantness it claims to seek. The law exists to contain and restrain our deepest retributive instincts and articulate them in a civilised and acceptable way. This was presaged in the Oresteia, when Athena appointed the jury of judges to contain the power of the furies and pass judgment on Orestes, thus settling the blood feud. I really hope that the Lord Chancellor will demonstrate the wisdom of Athena and contain his furies. We have no need of them.

7.27 pm

The Earl of Listowel: My Lords, it is a pleasure to follow the noble Baroness and indeed the noble Lord, Lord Judd, on the theme of rehabilitation. I echo what the noble Lord said: effective rehabilitation is a costly business. You need to invest in the right people and professionals, and support them properly, if you are to get the outcome that you want. That investment is well worth making. The National Grid Transco young offender programme was able to reduce reoffending by young people leaving prison from 70% to, I think, below 4%. Those young men went into employment and earned money for their families. Many were having children and setting a good example to the next generation. That was extremely carefully done and required hard work from all around, including the chairman of National Grid Transco in his lobbying for other companies to be involved in this process of mentoring and then employing young men from custody.

I join the warm welcome for Part 2 of the Bill, the reform of family courts. I was pleased to hear my noble and learned friend Lady Butler-Sloss speak about her brother’s vision for this future that has now come to us. I certainly see hope there in many possible improvements to the service for children and families.

I will concentrate on one aspect of the Bill: the possibility of an amendment to this legislation that might offer to reduce the numbers of women in custody and children taken into local authority care, and save

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the courts and local authorities both money and time. I refer to an amendment to Part 2 of the Bill that changes Section 33 of the Children and Young Persons Act 1933. This section deals with parental neglect and its punishment. I hope we might consider amending this section to extend the choice of disposal to include support. I hope we might also discuss ensuring that guidance is clear about offering support prior to court proceedings. In discussing this, I apologise to my noble and learned friend Lady Butler-Sloss for failing to consult her before Second Reading. No doubt the House will look to her for advice on this matter in Committee and I should certainly not wish to add to the legislative forest if legislation already meets my concern. However, I am struck by the anomaly of legislation that seeks only to punish neglect and not to provide for the alternative—support—where appropriate.

This House was concerned some time ago about the effect of introducing parenting orders. The noble Baroness, Lady Linklater, will remember the debate. The noble Lord, Lord Warner, the former chair of the Youth Justice Board, commented to me that in his experience parenting orders were the most effective tool at its disposal—the least costly and the one most welcomed by the recipients. Parents often commented, “Why weren’t we offered this help before?”. To give a few statistics, between 2001 and 2010, the number of cases under Section 33 of the Children and Young Persons Act 1933 trebled from 782 to 2,172; 67% of these resulted in cautions.

I would be grateful if the Minister might write to me about the remaining 33%. How many cases went as far as custody? How many mothers were imprisoned as a consequence? What became of the children whose mothers were imprisoned? How many children were taken into the care of the state as a consequence of the imprisonment of their mother? I recognise that these are emotive questions. It may be that my concerns are groundless—that very few, if any, individuals are incarcerated and that those few may merit this treatment. I would certainly wish to be assured that this is indeed the case. Even if it is, however, there still may be merit in amending the legislation and guidance to ensure that more families receive the early support they need.

I hope the Minister and your Lordships might be prepared to listen to the concerns of the charity Action for Children about the 1933 legislation. The charity has a long-standing interest in this area. The University of Salford’s four-year Evaluation of the Action for Children UK Neglect projectwas launched last week. Research found that Action for Children’s intensive family support services intervened successfully in most cases of neglect, even when neglect was a most serious concern, to the level of child-protection intervention. Parenting programmes and outreach were highlighted as particularly effective interventions.

Action for Children works with around 50,000 children and young people across its 480 services. It has a great deal of experience of working effectively with troubled families. I hope that your Lordships will be available to attend a briefing from the charity in the course of the Bill, and the Minister may be prepared to listen carefully to their concerns. No doubt Action for Children

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will wish to consult my noble and learned friend Lady Butler-Sloss if it has not had the opportunity to do so already.

I shall make one or two other observations about the capacity of courts to make good judgments in family proceedings. The complexity of these cases can be quite daunting and it encourages me that the proposal may offer more opportunities for training in sentencing, child development and in similar areas involving children and families. The district judge Nicholas Crichton, of the Inner London Family Proceedings Court, has made a tremendous difference to families in this country with his innovation of the Family Drug and Alcohol Court. He also goes to eastern Europe and trains the judiciary there to deal with children and families. Where one has expertise in a judge, they can make a huge difference to our society and to that of others.

I am concerned about what is happening with expert witnesses. As your Lordships may be aware, there has been concern about the rates of remuneration for expert witnesses. In particular, independent social workers are now the lowest paid, at £30 an hour. That is lower than a process server in a court. Often in local authorities, front-line social workers are very overstretched, particularly at the current time. Sometimes they are young and inexperienced, and a court needs a good expert to make an assessment of what should happen in a particular child’s case.

I know a few independent social workers. The father of one was a social worker and so is his daughter, and my experience has been that these are the sort of experts one would want giving advice in court. The danger is that if one sets the rates of pay so low, the best of them may leave and it might become difficult to find good ones to advise the court. I hope that the Minister might keep that in mind in this particular area. There is a need for good advice to the courts to make the speedy decisions we all want to see for children and to avoid delay.

Perhaps I may also briefly mention looked-after children. I do this in part because the family courts often deal with children who have grown up with a mother or father who themselves grew up in care. If you look at the statistics, it is staggering how many young women in care will go on to have children who are themselves taken into care. If we can avoid that situation, it is very much to be condoned. I am afraid that recent reports about children’s homes in the press, in theTimesin particular, highlight the fact that we still have a long way to go in providing a fit-for-purpose service to many of our looked-after children. The many children being taken into care is a good thing. They will have better outcomes as a result of the care of the state, but too many within that group—a small but significant minority—are not getting the care they need.

Only about 4,000 of our children are now cared for in children’s homes—about 7% of the children being looked after—but they have a high level of needs. Because it is such an unpopular option, they will be there probably after a number of breakdowns in foster placements; they will be very troubled children. Some of the staff who care for them are wonderful and dedicated, but they do not have the professional

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development to help them manage those children as well as they should. In research comparing this country with Denmark and Germany, in Denmark 90% of the staff had a BA (honours) qualification. In this country it was 30%. The regulations require staff qualifications in children’s homes to be NVQ level 3, about equivalent to an A-level, and managers to have an NVQ level 4. That is about the beginning of a degree course or a foundation-year degree. However, the children in our homes are much more troubled than those in Denmark or Germany, because half the children in care in those countries are kept in residential settings. It is a much more popular option, so there is a mix of children with different levels of need.

It troubles me very much that those in our children’s homes are not getting the expert professional support and care which they need. Some have been sexually exploited by predatory men. Others will go on to be parents, perhaps while they are still in care, and quickly have their children taken away from them and be processed through the family court system. There will be other opportunities to debate this, I know, but I suggest that the Government need to look very carefully at this area and think about investing in the training and development of children’s home staff.

Briefly, the Magistrates’ Association is interested in a duty to oblige co-operation between magistrates and probation. It is concerned that the essential liaison between the two has declined over time. If one looks at the success of the Youth Justice Board, one sees a good working relationship between magistrates and young offender teams. I have been concerned in the past about anti-social behaviour orders and what has reassured me is that magistrates have increasingly understood the right way to use these orders and have consulted youth offender teams.

It might be necessary to legislate for closer liaison between the probation service and magistrates. This would make a big difference to successful alternatives to custody and reduce the adult prison population, as the Youth Justice Board has so successfully reduced the population of children in custody in this country. I look forward to the Minister’s response.

7.39 pm

Baroness Kennedy of The Shaws: My Lords, I wish to address a number of proposals but I start by saying that I heartily agree with noble Lords who have spoken about the importance of our seeking to find alternatives to prison. The increase in prison numbers is horrifying. In this period of increasing youth unemployment, it is alarming to think of the risk of young people offending in greater numbers. More and more of them may find themselves in prison, their lives ruined. That should be a source of great concern to us all. Therefore, I hope that this time we will pursue alternatives to prison with seriousness and I hope that I shall be able to vote in support of such changes.

I want to speak, first, about the creation of the new National Crime Agency to deal with serious crime. I know that there are concerns about this reform and I have reservations myself, but in general I am convinced that globalisation is presenting us with such serious

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challenges to our national responses to crime that we should be willing to re-examine our present arrangements and be prepared to consider reform.

The very developments that make legitimate markets work—the ease of travel, the electronic transfer of money, the internet and the mobile phone—are all just as effective in developing black markets. In my work in the courts, I see at close quarters the trade in drugs and firearms, the trade in human beings for labour or sexual exploitation, the trade in human organs, which has been all over the newspapers today, and—I was involved in such a case last year—even the trade in babies. Such high-level crime, whether it is terrorism or just traditional organised crime, involves high rewards for the criminals—the money involved is huge. In years to come, we will undoubtedly see an increase in cybercrime.

For the most part, this sort of crime is very difficult to police but it affects all our lives, with greater quantities of drugs on the streets, an increase in gun crime and a pernicious growth in the sex industry. Policing these activities requires high levels of expertise and collaboration. I saw that first hand last year when I chaired an inquiry in Scotland into human trafficking. What became very clear to me was how necessary it is to have real collaboration and systemic responses to this kind of organised crime. Human trafficking, for example, often falls foul of agencies not knowing who takes the lead. It is a crime and so should be led by the police. It should not be fudged as something that might receive an initial investigation by the border agency.

Therefore, I welcome the possibility of a more focused and strategic response, particularly to human trafficking, but to other areas of crime too. However, there are problems. If you increase the centralisation of policing of serious crime in this way, there has to be much stronger oversight than there currently seems to be in the Bill. I am also very concerned that the freedom of information exemption will be continued here and I think that that should be revisited. It is important that the public know about the workings of such an agency when it is going to interfere in the privacy of so many lives.

I turn to the subject of court reforms. I welcome the idea of demystifying the courts and have written about it for years—ever since the late 1970s. It is important that the public know what goes on in courts. I remember that in the 1980s the drama series “Crown Court” did much to awaken public understanding of the processes and the issues that arose. I have no argument with the plan to televise the hearing of appeals in the Supreme Court or the Court of Appeal so that the public can watch and listen to the arguments being presented and understand why the judges make certain decisions. However, let us be very clear that that is not what the television companies are interested in. They are interested in new products and new ways of giving us pictures. They are interested in new titillation from “Big Brother” to “X Factor”.

We know what interests most television companies and I am afraid that some of it feeds the less attractive aspects of the human condition. The television companies want criminals. They do not want to watch judges giving judgments in the commercial courts. They want

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criminals; they want murder and mayhem; they want rape and carnage; and they want pretty victims and nasty, thuggish offenders. They also want celebrities being dragged before the courts. This is not about transparency; it is about voyeurism. Although it may be starting in a small way, I have great concerns about where this is going to lead. Basically, television companies—I have heard it being discussed—want criminal cases and they want to be in the courtroom. Reporting criminal cases is currently very disappointing for television newsmen. Where are the pictures? That is one of the questions that television people always ask. They do not like talking heads. Talking heads are a bore and that is why it is very difficult to cover trials. You get only snatched shots of witnesses leaving the Old Bailey or those cartoon-like drawings of defendants in the dock that look nothing like the people concerned. I can tell your Lordships that—I have represented them. Sometimes I appear in those drawings.

The television companies are desperate to get into the courtroom. It will start with just having the judge giving judgment, but they are not interested in the men in wigs waxing long and impenetrably about law. That is not what they want to see. They want the sensational, the salacious and the grotesque. So I am afraid that this is one of those rare occasions when I am going to disagree with our former Lord Chancellor, the noble and learned Lord, Lord Mackay, because I do not think that this is a healthy development. I hope that there is no rush to cover judges reading out their sentencing remarks. Letting television cameras into courts carries serious risks and, although this is starting at a low level with the higher courts, the potential for drift is huge and the consequences for justice are very serious.

Perhaps I may explain that the camera does not replicate the public gallery. People say, “But this is just making the public gallery bigger”. It is not. The camera chooses what to look at. It edits as it chooses. Indeed, at the moment the camera is looking at me. It is not looking at the responses of other noble Lords to what I am saying. If you sit in the public gallery of a court, you take in not just what the witness says but what the judge says and you watch the defendant’s responses and other things that happen in the courtroom. That tells you much more than you will ever know from watching snatches of the proceedings on television, and snatches are what they will be. Some states in the United States had to introduce something called gavel-to-gavel coverage because lawyers and people concerned with justice complained that, if you did not show the whole process, people would think that they had seen the trial but they would not understand whole areas of evidence that were never placed before the public. Unfortunately, “News at Ten” will not be interested in putting it all in front of you; it will put in front of you what is most dramatic. The public will think that they have seen the trial because they will have seen bits of it and then they will think that the jury got it all wrong. That will undermine confidence in the system.

Of course, we now have other forms of technology. Once shown on television, cases will be uploaded on YouTube and downloaded on to people’s phones. We will have people playing and replaying cases. Do you think that jurors are going to resist that when we do

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not have juries staying in hotels as they do in America? Of course juries are reminded not to look at these things, but do you really think that they will not? Do you think that they will not do it in the company of their families at home, so that there is then another jury deciding what it thinks of the evidence? The risks are horrifying. I think that new technology will make it impossible to have a fair trial and, in the end, that will mean that the whole question of jury trial is put in jeopardy.

There is also an issue for judges. In this country, judges enjoy a level of anonymity and unrecognisability. However, that will be lost. You can be sure that comment will be made about the sentences not being strong enough or tough enough. Then judges will be vilified and criticised and they will start to become defensive because they will know that the cameras will keep coming back to their particular court. When Cherie Booth—the wife of a former Prime Minister—sits, will people want the cameras to be in court to see whether her judgments come up to snuff? These may look like advances and transparency to all of you, but I am afraid that it looks like a very serious challenge to justice to me.

I welcome the efforts on diversity. All my professional life I have been arguing about the need for more women in the courts and on the Bench, but I am concerned about a number of things. I am concerned that the issue of merit is not examined in the Bill. I would like to see a new statutory merit test because merit is not a value-free zone; it is an area where many of the judgments that are made are made from a very narrow perspective. As the Chief Justice of Canada has reminded us,

“human beings have a tendency to see merit only in those who exhibit the same qualities that they possess”.

I am afraid that in the recent appointments of two men to the Supreme Court—there is still only one woman in that court—25 consultees were asked for their views and 24 of them were men. The outcome is affected if the gatekeepers are all from one perspective. Currently the emphasis is on one relentlessly individualised understanding of merit and it is too narrow. Instead, the collective competence of the court should be a central feature of appointment, allowing for the correction of deficits in terms of diversity but also in terms of specialist experience, such as people who have experience of trying cases involving children or people who have experience beyond the commercial. Candidates should, in the first instance, fulfil the criteria of intellectual ability and professional experience in practice, but then we might look to some of the other factors that would enrich our courts.

The Bill has much to commend it but much that needs to be looked at again. I hope that in Committee we shall make it very much better.

Lord Mackay of Clashfern: Did the noble Baroness see the television recording of the sentencing remarks in a recent murder trial in Scotland?

Baroness Kennedy of The Shaws: I did, but I think that one case can often make bad law. Of course, an individual judge giving a judgment in a case can make

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people think that that was interesting and reasonable. However, you can be sure that, as we cover all cases more regularly, certain judges will be considered too lenient and they will be pursued. We shall find that the hunger for punishment will be fed by certain television stations. I am concerned about where this will go, so I hope that a good deal of caution will be shown before we go down this road.

7.52 pm

Lord Woolf: My Lords, it has been a great privilege for someone such as myself to be able to hear the previous speeches on the Bill. Some of the material that has to be considered is quite complex and not necessarily the stuff to excite one on a hot summer's afternoon if one is sitting in the garden faced with the attraction of a slumber. Previous speakers have shown a masterly understanding of the Bill and so I am not sure how much I can help the House. However, I would like to give the House some general reactions in consequence of my reading of the Bill, informed by the speeches that have gone beforehand, which have been of such a high quality.

I share in the general welcome for the Bill which I have detected. You address the parts of the Bill that cause you concern; you do not address those parts with which you are happy. The areas that have been focused on for that reason have been few but, none the less, are very important. Although I would not dream of following my noble and learned friend Lady Butler-Sloss in respect of family courts, I would indicate that I wholly agree with what she said about them. Perhaps what she said about family courts is, in generality, true also in relation to county courts. Courts work best if those in the courts have the fewest restrictions on their ability to handle cases in a way which is constructive and sensible. When you break courts down into too many parts you have to create divisions which do not help the administration of justice. A single court, like the family court, enables resources, which are so scarce today, to be devoted in the best way possible for the resolution of those very difficult issues that come before the family court.

I do not think that there is any need for concern about the status of High Court judges because, if the court is working properly, the judges will be chosen with care so that the cases that they deal with reflect their expertise, experience and ability. Cases are administered in a way that will enable the diet of a High Court judge to be distinct from that of judges in lower courts. What I have just said I think is particularly true in an ordinary civil case. Of course, we shall have to examine the detail but people really want their civil disputes resolved as economically, effectively and efficiently as possible. As I see it, at their heart, the proposals are trying to move forward in the right direction in that respect.

The areas to which I would want to make particular reference are those that deal with the changes to the appointment process, particularly in relation to the position of the Lord Chancellor. At the end of my judicial career in this country I had what I thought was probably the most important responsibility I had

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at any stage of my judicial career: trying to agree with the noble and learned Lord, Lord Falconer, a concordat which, when examined by the Select Committee, resulted in the Constitutional Reform Act 2005. As I understood it, the result of that process was to achieve a new relationship between the judiciary, the Executive and Parliament which would be in the interests of all concerned in the new situation that had arisen. Deeply involved in that process was the belief that we had now come to the stage when this country should follow most other countries that adopt proper democratic standards in recognising the need for the separation of powers. The change in the Lord Chancellor’s status—I would like to express my high regard for what successive Lord Chancellors achieved by way of appointment—meant that the role played by the Lord Chancellor would no longer be appropriate in the new situation that we were dealing with. In that situation it was decided that the Lord Chancellor's powers should be carefully curtailed and structured so that he could act as an important element in the appointment process but no longer have any role in making appointments. He was to have the ability to accept proposals of the new independent Judicial Appointments Commission, but he was to have no power himself to make proposals or to start off an individual’s appointment unless it had gone through the process prescribed by Parliament, and which brought the matter before the commission.

Here I would like to echo as forcefully as I can the very wise words of the noble Baroness, Lady Prashar, who has unique experience in running an appointments commission and successfully managed to confront very significant administrative difficulties in getting that process off the ground. I must disclose an interest here. I was one of the members of the appointments commission that appointed her. She herself was appointed by an independent process, as was each member of the commission. It was felt that the independence of the judiciary was critical and required that the best people available should be appointed. The process of appointment, although not known or properly understood by the public at large, should be one that in itself indicates independence. That is what we have achieved, and we have done it in a way much admired all around the globe by other jurisdictions which would like to have a process of a similar nature.

I say those initial words because the idea of giving the Lord Chancellor the ability to invite himself, so to speak, to be a member of the Judicial Appointments Commission—I am not quite clear from my reading whether it is the Lord Chancellor, the President of the Supreme Court or the Lord Chief Justice who can do this, but I may have overlooked something because others have said that it also applies to the Lord Chief Justice—is an inroad on the principle of the independent appointments process which the 2005 Act created. I submit that the Lord Chancellor would be right to get himself into a position where he is not performing the role which it is generally clear he is intended to perform, particularly in the case of the most senior judges. It seems strange that he should seek power with regard to those people. Under the current legislation, there is a power which requires him to be consulted. I just do not think it is realistic to assume that if he is consulted, he cannot exercise as much influence as he could if he

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were a minority member of the Judicial Appointments Commission. If the commission is not going to follow what he has indicated when consulted, why would it follow him if he is on the commission? I do not see that that is an advantage.

When one looks at the other powers that are going to be given to the Lord Chancellor by regulation—each one deserves careful examination—they seem to be inconsistent with his being a member of the Judicial Appointments Commission. He would be giving guidance to himself. That does not seem a very sensible arrangement. It is proposed that his powers be extended in various ways, and I suggest that his being given an increased role just does not match. I therefore suggest that the report on appointments that we received from the Constitution Committee of this House was absolutely right when it turned its face against the change in the position of the Lord Chancellor in this regard.

I hope that in summing up the Minister will be able to give us some assistance by telling us what he sees as the advantages of this. I emphasise “what he sees”, because I suspect that some of this comes from very senior members of the judiciary. If that is the case I am bound to say that I disagree with those views. I think we should keep to and not derogate from the general position indicated in the 2005 Act. Lord Chancellors come and go, and although it is a great and high office, one cannot assume that in the future there will not be a Lord Chancellor who, for reasons he or she thinks proper, will do things that really do not benefit the system. Giving a regulatory power in the terms proposed here seems to me to be extremely dangerous. I have indicated that I agree with the Constitution Committee’s report and I have indicated that I agree with the noble Baroness, Lady Prashar. Perhaps I should leave that subject now.

That leaves the other Part of the Bill. I am particularly interested in Clause 23, which deals with disposal in the community. Again, it is not more than a regulating power. I understand from what the Minister said in opening that in due course we are going to have the benefit of understanding what is in mind here. I am certainly not going to overlook the opportunity to persuade the Government to take the sort of actions which the noble Baroness, Lady Linklater, was encouraging them to do by expressing too much concern about the way the matter has been dealt with as part of the legislative process. Surely there must be caution in having a Bill where there are so many powers which by themselves cannot be understood or assessed because the Government themselves have not yet decided what to use them for. All they have done in the Bill is to enable the Government to put the flesh on the bones at a later stage. However, if we are going to discuss the matter appropriately, as we have done today, it is not very helpful not to know anything about the flesh.

I do not want to detract from my appreciation of the Bill by picking faults here, there and everywhere. That is much better left to Committee. I extend a general welcome to the Bill but I suggest that we must approach parts of it with caution. I share some of the concerns expressed about the introduction of cameras in courts. It could be beneficial but we should approach it with caution. It will be absolutely essential that the

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judge in court should be able to decide whether filming should be allowed after satisfying himself that it would be in the interests of justice that this should happen. I recognise that that will put a great burden on the trial judge.

My final point concerns diversity. The judiciary—and, to my knowledge, previous Lord Chancellors who had the power of appointment—strove to make our judiciary better reflect the society in which we operate. It is an extremely difficult exercise and should not be underestimated. However, giving a message—which is what the Bill does—that the legislature and those who are responsible for appointments consider it a good idea to have a test that is more favourable to accelerating diversity is certainly sensible. However, I am bound to say that I would have started not at the top but lower down. If there is another Supreme Court that allows its judges to work part-time, I know not of it. Again, perhaps the Minister will enlighten me when he replies. The work of a final court of appeal cannot easily be done three days a week, or with the sharing of labour. Many cases last all week—and if they do not, the judges start working on their judgments when the case finishes. If one judge cannot come and take part in that way, from a practical point of view I do not see how they will be able to make the sort of contribution that we want our diverse judges to make to the administering of justice. That is another matter that we should consider.

8.12 pm

Lord Ponsonby of Shulbrede: My Lords, I will speak briefly on Parts 2 and 3 of the Bill. I start by acknowledging that it is not particularly party politically sensitive but is largely about the administration of justice, and I will address the matters in that spirit and in clause order.

Clause 17 proposes a single family court with a single point of entry. As far as I am aware, the proposal has been generally welcomed. I have the privilege of having just been appointed to sit on the Family Proceedings Court. As a new appointee to this jurisdiction, I will be very interested to see how it progresses. Colleagues generally welcome the change, although, as the noble and learned Baroness, Lady Butler-Sloss, said, lay magistrates are looking for reassurance that their role in the Family Proceedings Court, which is vital, will be protected. They have expressed this concern.

Clause 18 concerns the diversity of the judicial appointments process. As far as I am aware, the magistracy as a group is more diverse than more senior members of the judiciary. Nevertheless, it may be worth exploring whether some ideas about senior members might appropriately be applied to the appointment of magistrates as well.

Clause 20 concerns the payment of court fines. As the noble Lord, Lord Henley, said in his introduction, some two-thirds of all sentences are fines. I will make many of the same points as the noble Lord, Lord Touhig. Clause 20 concerns the role and powers of fines officers. The Bill allows for the recovery of charges incurred in the recovery of fines where offenders have defaulted on their payments. Fines officers are to be treated as not making judicial decisions, which will

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enable their functions to be carried out by contracted-out staff. While I am not against the proposal, it fails to address a shortcoming in the current system; sentencers, namely magistrates and judges, often do not know the level of unpaid fines when they impose new fines on an offender. Therefore, they can make the situation of unpaid fines worse rather than exploring other sentencing options where possible.

One possible remedy for this is to make it a requirement for sentencers to know the level of unpaid fines before imposing new ones. I canvassed this possibility with magistrate colleagues over the past week or so and there was relatively little enthusiasm, as it would impose a large administrative burden on the existing system. Nevertheless, I put it to the Minister that this administrative change would do more to combat the level of unpaid fines than the proposals that the Government advance in the Bill.

We have heard a lot this evening about Clause 23, which concerns the community and non-custodial sentencing of adults. It acts as a placeholder for the Government to bring forward proposals on community sentences at a later stage. In her intervention, the noble Baroness, Lady Linklater, mentioned the White Paper that was published last week. There are two consultations in progress. The first is a Ministry of Justice consultation entitled Punishment and Reform: Effective Community Sentences. The second is the Home Office White Paper on anti-social behaviour orders. My understanding, unlike the noble Baroness’s, is that the amendments that are going to be proposed by the Government are to do with the Ministry of Justice consultation and not the Home Office White Paper. I see that the noble Lord, Lord Henley, is nodding his head.

I have two general points to make about Clause 23. The first is similar to the point made by the noble Earl, Lord Listowel, and the noble Baroness, Lady Linklater, that whatever the proposals are, it is of huge importance that magistrates and the judiciary have confidence in community sentences. This issue has been brought up on previous criminal justice boards. It should be a statutory requirement for probation trusts and magistrates’ Benches to liaise and to be properly informed about the availability of community sentences. I know the Government’s standard response to this point is that nothing prevents that and it is a desirable outcome, but my point is that it is an uneven outcome in different parts of the country if it is not a judicial requirement. This point was made by the noble Baroness, Lady Linklater, and the noble Earl, Lord Listowel, and I strongly support their view that it should be made a statutory requirement for this liaison to happen.

My second point about Clause 23 anticipates the amendments the Government will bring forward on Report. These are likely to include increased options for more sentencing in the community. It is inevitable that some of the options which the probation trusts offer will be more available in big cities than in rural areas or small towns. I readily acknowledge that this is a practical problem, but you could end up with sentencers knowing an offender’s address before they know the details of the sentence being passed. You could have an extreme situation in which a sentencing Bench on

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the same day will allow one vulnerable offender to escape prison while another offender will be sent to custody purely on the basis of their address. This is a slightly extreme example, but it is entirely possible as there is a lack of consistency across probation trust areas. This is perhaps an inevitable consequence of localism, but it is clearly inequitable and not proper justice. The answer to this conundrum is for proper national guidance to ensure that, broadly speaking, the same options are available to sentencing Benches all over the country.

Finally, I turn to Clause 27 on drug-driving. I know my noble friend Lord Simon is going to say something about this, and I read with interest the contribution of the noble Baroness, Lady Meacher, in the debate on the gracious Speech. I am aware of the complexity of this issue by reading some of Sir Peter North’s report. I have sat on a number of drink-driving appeals over the past few years and I have listened to expert witnesses giving their testimony about the unreliability of the equipment involved in drink-drive tests. It so happens that in an earlier career of mine as a junior technician I dealt with similar equipment, so I know how complex it is. Without wanting to be too prejudicial, I will say that it is very easy for expert witnesses to come up with extremely complex reasons why the equipment is not to be relied on. That will only be much exaggerated when you are dealing with a multitude of drugs rather than just alcohol. It is very important to get this element of the Bill correct, otherwise there will be a lot of opportunities for expert witnesses and lawyers to create mischief in this situation.

I look forward to taking part in debates on this Bill. It is an important Bill and there are many details to address.

8.22 pm

Lord Dholakia: My Lords, the best thing about the Crime and Courts Bill is that it is being introduced in your Lordships’ House. Between now and Third Reading, we will have the unique opportunity to scrutinise its contents. I have no doubt that it will be a better Bill than those which we normally receive from the other end. There are measures in this Bill which I welcome and there are issues on which we expect the Minister to provide further explanation during its passage.

I wish to concentrate on Part 2, which contains various provisions in respect of modernising courts and the tribunal system. Reading carefully between the lines, it seems that apart from the establishment of the National Crime Agency in Part 1, we are dealing with a number of matters that surfaced during the LASPO Bill in the last Session of Parliament. I received further proof of this when my noble friend Lady Linklater started where she left off last time, particularly on matters of sentencing and restorative justice.

Many of the issues were highlighted at the time, but we now have greater clarity about the Government’s intentions, and I thank them for that. The Constitutional Reform Act 2005 made substantial changes to the process of selecting and appointing various judicial officeholders. We had the Judicial Appointments Commission and a separate process for appointing the Justices of the Supreme Court. The Ministry of Justice’s

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consultation document entitled

Appointments and Diversity

, and its own response to it, now forms the basis of Part 2; it intends to achieve a proper balance between executive, judicial and independent responsibilities. I fully subscribe to the Minister’s view that this will bring clarity, transparency and openness to the judicial process.

Our system of justice is at the heart of the democratic process and I trust that these objectives will further cement the confidence of the community in our judicial system. I also welcome the emphasis on diversity. Britain’s minority ethnic population stands at between 8% and 10%, and while quotas are wrong in principle and in law, there is nothing wrong with setting targets that, over a period of time, could achieve a fair balance in our judiciary. My friend the noble Baroness, Lady Prashar, as the first chair of the Judicial Appointments Commission, has laid a sound foundation on which we need to build.

However, there is a distinct omission. Is there any reason why the appointment of magistrates should be excluded from this process? The Ministry of Justice has made great strides in ensuring that the magistracy is reflective of the society it serves, but it would be helpful if the Minister would revisit the clause to ensure that the measures to promote diversity in the appointments process apply to magistrates as well.

I recently chaired a public engagement programme run by the Magistrates’ Association in order to gain a greater understanding of people’s views on the future of summary justice and the role of magistrates. The evidence included contributions from the local police, local victims of crime, local magistrates, professionals from intervention agencies, ex-offenders, local legal practitioners and the audience, which included the general public.

During our evidence-gathering session, we expected criticism but instead found a good deal of understanding of the way magistrates perform their duties. Two common facts emerged from every consultation held in the country. The first was that local justice should remain local within a magistracy that is representative of our diverse society, and a lot needs to be done in this respect. The second was that the magistracy is not reflective of class in society, and one of the biggest barriers to overcoming this lies in the recruitment of people who hold down ordinary jobs. However, we need to exercise care, since appointment is only a small part of the process. It is not simply selection and recruitment that are important; retention is a vital element, and that comes about only when effective training is part of the retention programme.

I said earlier that there are some good measures in the Bill. An example is the single family court for England and Wales. Care needs to be exercised in how this is to be implemented, and I ask the Minister to ensure that family court magistrates continue to play a significant role in this respect.

An area of considerable interest in the Bill relates to community and other non-custodial sentences for adults. My noble friend Lord McNally can take great credit for rescuing the Youth Justice Board in the last Session of Parliament. The board has reduced youth crime and continues to do so, but now we need to push my noble friend even further. The Ministry of Justice

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consultation paper, entitled

Punishment and Reform: Effective Community Sentences

, is most welcome. We look forward to the Government’s response when the consultation concludes on 26 June 2012. I do not subscribe to the pessimistic view of the noble Baroness, Lady Smith of Basildon. The consultation is a serious exercise and the Government’s response may not be available until around the Summer Recess, but that is no reason not to set out some of the parameters of the policies that we would like to see introduced. All I ask of the Minister is that he will ensure that we have ample opportunity to question him, as we would normally do in Committee, if that stage is missed out.

I have repeatedly stressed the more effective use of community sentences instead of short-term prison sentences for low-level offences. The incidence and nature of crime varies from place to place and from generation to generation, and it is obvious that crime is something that all societies have to come to terms with in their own way. We can debate the underlying causes of crime, but most research and consultations have tended to refute rather than confirm the causes of crime and the effectiveness of punishment and treatment. Magistrates tread delicately but effectively, particularly when the public and political mood continues to be conditioned more by tabloid reporting than the considered way in which magistrates reach their decisions.

Prison is expensive, and reoffending rates are frightening. Roma Hooper, director of Make Justice Work, says that community sentences have lowered levels of reoffending and are better value for taxpayers, yet we are not advocating tending gardens, painting walls or putting up fences, as seems to be the perception in the minds of both sentencers and the general public. Community sentences need to be robust and demanding in order both to challenge offenders and to gain the confidence of the public. There are many good examples that we can look at, particularly when we consider the international dimension. The probation service should also be equipped with adequate resources to ensure that this happens. We also need to look at the role of the voluntary and private sectors in providing innovative approaches and building programmes tailored to the individual needs of each offender.

Punishment on its own has a very limited impact on offenders. In our nationwide consultation, it became clear that the public, including many victims, expect to see punishment as part of a sentence but that the priority is for the offender to stop offending. The public do not want what happened to them to happen to others, or to themselves again. I commend my noble friend Lady Linklater’s contribution on this subject. I trust that the end product of the Government’s consultation will clearly demonstrate that it is possible for restoration and rehabilitation to be a fundamental part of the process in our courts.

I will certainly have more to say when the Government’s response is available. I conclude by saying that it is for us to lead public opinion and not simply follow it. For too long, public policies have had the imprint of media pressure. It is time to change this political emphasis. With all the expertise available in your Lordships’ House, this will be a better Bill when it reaches the Commons.

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8.31 pm

Lord Dear: My Lords, I am very conscious that we are now four and a half hours into Second Reading and, batting as late as I am, pretty well everything that one wanted to say has been said. I will try to keep my remarks very brief and perhaps put a change of emphasis on some of the points that have been made. I want to address the National Crime Agency—no surprise, perhaps—and say just a little about community sentencing and drug-driving. I had quite a lot written down about courts but I will leave that to the succeeding stages in your Lordships’ House.

I declare an interest in that I served in the police service in England for many years. With particular regard to what I want to say tonight, I had a lot to do years back with the regional crime squads, then the National Crime Squad and the National Criminal Intelligence Service—all of which were rolled forward one way or another into SOCA, the Serious Organised Crime Agency—and for a while I worked very closely with the Federal Bureau of Investigation, and I want to mention that agency very briefly as well.

As we know, the NCA has four major commands: organised crime, border policing, economic crime and CEOP, the Child Exploitation and Online Protection Centre. The noble and learned Baroness, Lady Butler-Sloss, quite rightly made great play of the seriousness of people trafficking, particularly child trafficking within that insidious, growing, serious and very lucrative trade. There is nothing amiss about that not being mentioned in the Bill; I hope that, in winding, the Minister will reassure me that it will be encompassed by the new National Crime Agency. Of course, there is no specific mention either of cybercrime, the trafficking of drugs, arms or antiques and valuable works of art or the moving of high-value mechanical plant and motor vehicles, all of which cause immense distress, are highly lucrative to criminal organisations—

Baroness Butler-Sloss: Forgive me for interrupting the noble Lord but I was not criticising the Bill, I was criticising CEOP’s letter, which did not refer to trafficking as part of the job it had to do.

Lord Dear: Thank you for making that point clear.

All those crimes are not in the Bill. I would expect to find them addressed within the rubric of the National Crime Agency and will look for reassurance on that. The one thing that I raised an eyebrow over was the apparent lack of corporate management or governance procedures in the Bill, and I think we might explore that in Committee. It seems odd that an agency as potentially powerful as this one should be able to operate directly under the Home Secretary without some sort of non-executive agency—can I put it in those terms?—to oversee it.

The press are already labelling the NCA as the FBI. Those of us who know anything at all about the FBI realise that it is a very different body, both constitutionally and organisationally, from what is proposed for the NCA. Yet there is an article, already referred to by the noble Lord, Lord Prescott, who is not in his place at the moment, in today’s Daily Telegraph, headed: “A British FBI won’t make us any safer”. It is an interesting

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article, written by John Yates who until recently was head of counterterrorism for the country and indeed a senior officer in the Metropolitan Police. It is a strange article that I commend to your Lordships although they might find, as I did, that it is something of a curate’s egg. What made me really concerned was that it seems to be some sort of plea for the Metropolitan Police to retain the counterterrorism lead in the country.

I should say immediately—having served in the Metropolitan Police and dealt with counterterrorism from a provincial force looking to the Met—that I have the highest regard for everything the Metropolitan Police has done in the past and continues to do in counterterrorism. It has a worldwide reputation for protecting us from terrorists and, if the protection fails, for then dealing with terrorism offences very well and successfully. I hope that this article is not the beginning of a turf war between police forces—some sort of demarcation dispute and parochialism—because we have seen from time to time, not necessarily with the Met but throughout the police landscape over the years, occasional examples of that: “It’s my ground and I am going to defend it”. If in the future, and it may be a long time away, the evidence was there to move the counterterrorism command away from the Met and into another agency, the ability to move it into the NCA might be a very sensible view.

There is a huge threat, and we have talked about it before: cross-border crime in the United Kingdom, cross-border internationally—you could almost call it pan-global and that would be accurate. The threat, as the noble Lord, Lord Wasserman, has already said, is far too big for individual forces to deal with, no matter how big some of those forces are. We have seen before, and I think this should go on to the record, examples of police forces that have denied the will for successful operations to crime squads, preferring to look at their own problems on their own ground and not to co-operate across borders for the greater good, although that is not true all of forces. That is rare but it does happen and could in future. The threat will continue to grow, make no mistake about it, and the NCA will grow over the years. There is plenty of scope in the Bill for co-operation between forces and between forces and the NCA. There is a raft of operational powers available but the director-general, as we have seen, has to be able to direct in extremis. The point was made in the Minister’s opening remarks that the powers to direct will be used sparingly but they have to be there, and I would defend that posture very fiercely indeed.

We have heard a lot in your Lordships’ House about the tensions that undoubtedly will exist between the police and crime commissioners and the chief constables on the one hand and the National Crime Agency on the other—localism. I said just a year ago when we were discussing the Bill that launched the concept of PCCs that a constructive tension between the PCC and the chief constable was a good idea; there has to be balance. There also has to be a constructive tension also between the localism of police forces—PCC and chief constable together—and the NCA. I do not see any way around it. It surprises me that nobody else in your Lordships' House has mentioned that every

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single western democracy—at least to my knowledge—has a two-tier policing system. I cannot think of one that does not have a national organisation of some sort and a local web of organisations as well. How they relate varies, but they still have the two. If one tries to knock down the concept of the NCA, the two alternatives that are left seem equally undesirable. One is to have a purely local police service, taking no account whatever of national and international pressures; the other is a national police force, which I do not necessarily espouse. Scotland will have a national police force shortly, but Scotland is smaller and, if I may say with the greatest respect to Scotland, the range of problems there is probably smaller than it is in England and Wales. If you recognise that there has to be a national entity of some sort, you are three-quarters of the way towards accepting the necessity for the NCA.

We did not mention Clause 23 in the early part of this Second Reading, but several of your Lordships have since done so. The noble Baroness, Lady Linklater, gave us a compelling argument for everything around Clause 23. The Bill is of course very light on detail—we are waiting for that to come; there is nothing in the explanatory document to help us on that. I sincerely hope that when we get down to the detail of Clause 23 we will see an enhanced role for the probation service working in conjunction with voluntary organisations. I am sometimes asked by people who believe that I know far more about policing than I really do, “What would you do to really help the police?”. I tend to say, “If you really want to help the police, stiffen up and make really efficient the probation service, because in doing so you will stop the revolving door or slow it down. You will drastically cut recidivism; you will stop repeat offending; and that at a stroke would help policing and society no end”. Out of Clause 23, I hope to see emerge a discussion that takes us somewhere along that line.

I know that the noble Viscount, Lord Simon, is going to say quite a lot about drug-driving. I shall not try to steal any of his thunder other than to say that this matter is long overdue for addressing. It is exactly two years since the publication of Sir Peter North’s report, identifying that the problem was perhaps even more serious than we first thought; pointing out, as we already knew, that it was very difficult to prosecute drug-driving under the existing law; and recommending the creation of the offence of driving with a controlled drug above a specified limit. We should look at the specified limit in Committee, because, in December 2010, the Transport Select Committee put that to one side and recommended zero tolerance. The difference between specified limits and zero tolerance is considerable. It seems to me rather odd that drink-driving, using a legal substance illegally in a car, should be very different from drug-driving, where you are using ab initio an illegal substance before you get into it. We will need to keep our options open on zero tolerance.

I have spoken for too long. I commend the thrust of the Bill, I support the concept of the NCA and I look forward to being involved both in Committee and on Report.

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8.45 pm

Viscount Simon: My Lords, I intend to speak fairly briefly on a few very specific items contained in this Bill.

Clause 26 and Schedule 14 propose that some of the specialist work carried out by the police and customs be extended to immigration officers, some of whom will be allowed to approve specified applications to carry out searches, detention and powers of seizure. There are concerns that giving even greater police-like powers to immigration personnel is not matched by any training or accountability requirements. It is proposed that by conferring the powers of a constable on National Crime Agency officers there needs to be an assurance by the Government that these people are fully attested officers. With an Administration seemingly intent on using private contractors, such a requirement is very important.

During the debate on the gracious Speech, I raised some practical issues relating to Clause 27 where a new section is to be inserted into the Road Traffic Act 1988 relating to driving while under the effect of specified drugs. Section 4(5) of that Act already covers drug-driving but the Government claim that enforcement is problematical. The field impairment test exists as do forensic medical examiners but the combination does not always seem to work satisfactorily.

It is the view of the Police Federation of England and Wales—I am an honorary member of the roads policing central committee—that legislation needs to target the habitual illegal drug user who is a danger to himself or herself and to the public while driving under the influence of drugs and that the legislation is easily enforceable through the correct use of technologies.

I also drew attention to the swipe testing kit for drugs which is being used very effectively in some other countries, and in particular to the 34 prosecutions for driving under the influence of drugs in this country in 2010 while there were 34,000 prosecutions in Germany in the same period using this equipment.

The Government are proposing that, in some cases, a zero-tolerance approach to driving under the effect of drugs will be imposed. Bearing in mind that there is then no need to prove intention or negligence, it is, to my mind, unwise to use this approach to catch drivers. The levels at which drugs are considered to cause impairment in driving will have to be established very, very carefully.

The proposed new offence negates the need to prove impairment—something which I consider to be very relevant—but will be based on prescribed limits where a drug has been taken resulting from a doctor’s examination. With this in mind, is it possible that a GP could be taken to court as the originator of prescribing drugs which might affect driving? Or will driving be banned when certain drugs are prescribed but which, in practical terms, only affect driving above certain levels? And, of course, the effect of drugs can vary from one person to the next. This area will need to be looked at extremely carefully as noble Lords have already said.

I read in a newspaper that Scotland intends to reduce the drink-drive limit from 80 mg to 50 mg. It really is such a pity that the Government have not

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taken a similar no-tolerance approach. We all know of the increased impairment when a higher reading is used and the resultant increase in road deaths and injuries. I just wonder if the Scottish drivers will flee across the border if they see a police car when they know that they would not pass the lower limit. Expanding on this concern, I wonder how the DVLA will handle endorsements or disqualifications emanating from Scotland both in regard to permission to drive and to valid insurance in England and Wales. The opportunity of using this Bill to bring us into line with the greater majority of the European countries would be welcomed. And perhaps it is time for us to follow those wise Scots.

Legislation needs to result in easily enforceable levels being found using correct technologies rather than legally medicated members of the public, driving safely, being convicted. This, of course, is easier said than done but having a fairly narrow list of controlled drugs which cause most concern would be a good starting point.

8.50 pm

Lord Thomas of Gresford: First, perhaps I may say a word or two on Part 1. The issue which has emerged in the debate is what the noble Lord, Lord Dear, called constructive tension; my noble friend Lady Hamwee referred to it as tasking arrangements. I agree that there is an utter lack of clarity in the Bill about the relationship between the proposed NCA, police and crime commissioners and chief constables. It would be very helpful if the noble Lord, Lord Henley, could bring before the House, at Report or in Committee, a draft protocol. Surely that is what will have to operate after the implementation of these proposals. There has to be machinery to sort out the different arrangements which will arise. I agree with everything that my noble friends Lady Hamwee and Lady Doocey and the noble Lords, Lord Ramsbotham, Lord Condon, Lord Prescott and Lord Harris, said with some passion on this topic.

I turn to Part 2 and start with the issue of diversity. The noble Baroness, Lady Jay, was correct when she said that it is the traditional career path which results in the judiciary which we have today. The judiciary does not reflect the diversity of today's society; it reflects the lack of diversity in the legal profession 30 to 40 years ago, when I was a junior member of the Bar, or even before that, when I was a solicitor. I recall that I had a lady pupil, which was regarded as a considerable improvement on the situation in the small Bar I was in at Chester; she was the only lady in the place at the time.

The traditional career path is that the judiciary is appointed from a core body of legal practitioners, mainly from the Bar, who have demonstrated judgment and integrity over the years of their practice. You might say that they have shown their merit. They are appointed in their mid 40s or early 50s to the county court Bench or to the High Court Bench. If they are fortunate, they become members of the Court of Appeal in their late 50s. If they are even more fortunate, a select few will reach the Supreme Court in their

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middle 60s. Some noble and learned Lords present may have achieved that rank before that age, but that is the generality.

It has only been possible in the past year or two to choose someone who has not followed the traditional career path to be a member of the Supreme Court, but there has been only one appointment so far. That is one of the problems that arose when we were discussing the retirement age of Supreme Court justices at 70, which does not give anybody a sufficiently lengthy tenure in that role. I agree with the noble Baroness, Lady Jay, that the Constitution Committee was correct in saying that the age of retirement should be pushed to 75 for the Supreme Court and to 70 in other cases. I am not even sure whether that is right or whether that is not a bit of ageism. We talk about discrimination on the grounds of gender, race or whatever: what about age? Should it not be on merit that people are forced to retire, rather than otherwise?

Noble Lords: Hear, hear!

Lord Thomas of Gresford: That goes down well in the House of Lords, it may not go down well anywhere else.

What is the alternative? A professional judiciary. There are models all over the world. You start off as a judge’s clerk when you get your degree. You take your first steps in your late 20s and get appointed to the local Bench. You climb the ladder. There is no need for lay magistrates. Eventually, you get a judicial position and there you are as a judge. Perhaps you can introduce diversity into such a judiciary rather more easily than you can in our system of the traditional career path, but is it desirable?

The noble and learned Lord, Lord Lloyd, opposed the career judiciary, and I agree with him. What I do not think is right is to introduce the concept of part-time judges to increase diversity, if that is the purpose behind it. You cannot job-share on the Bench. I recall being in a foreign jurisdiction, we were there for a fortnight, and on the third day the judge disappeared for coffee and never came back. When we went to see what he was doing, he was with his golf equipment in a golf bag, and he was flying out for the rest of the time we were there in order to play golf. We could not continue with the case. So both sides had to troop back to this country. You cannot job-share. If the purpose of having part-time judges is to increase diversity, it is not the right approach.