I also see the order in the context of other changes that the Government are making to legislation involving the registration of those convicted of sexual offences. We have seen in the Protection of Freedoms Act how the definition of a regulated activity—when someone is on the sexual offences register, they cannot work in a regulated activity—is now far narrower than it was. Also, whereas previously someone automatically went on to a register, there is now a gap of around eight weeks and someone can apply to come off the register before they go on it. Whereas before they could apply to come off the register, now they might never go on it, depending on the outcome of the initial review.

At the moment there are around 53,000 convicted sex offenders on the register. More than 29,000 of those are on it indefinitely and, in effect, they are the subject of the order. I have tried to understand the Government’s rationale beyond the Supreme Court decision. I looked at the impact assessment and wondered what other avenues the Government considered. The Government looked at options from doing nothing to a full court-administered review system and plumped for the option before us today, option 4. There are three things to look at—the costs, the benefit and the risk. Page 16 of the impact assessment shows the costs. I understand that if there is going to be a review process it has to be robust and effective. The assessment states:

“The costs associated with this option would be absorbed by the agencies to which they fall and would represent opportunity rather than financial costs”.

Those agencies are the police, currently facing 20% cuts in their budget; social services, also facing cuts in their budgets and struggling; and the probation service, which is also facing cuts in its budget. Yet they are being asked to take on additional responsibilities and the Government are not able to identify what those costs are, other than that they are opportunity costs.

We then come to the transitional costs. The Government say that there will be some costs in the first year for guidance and training, up to an estimated £50,000. However, the impact assessment says that there will be transitional costs for the other agencies, which I assume means the police, social services and the probation service. Regarding those costs the assessment says that it,

“has not been possible to quantify this”.

5 July 2012 : Column 881

Under “Cost of a review”, the assessment says that the process,

“would take up approximately 9 hours of police time, including 3 hours of superintendent time as well as 6 hours of involvement from other agencies… estimated at £630”.

That is a fairly conservative estimate. I worry because although the Government have set up this process, I wonder how the agencies that are required to conduct the review will find the resources to do it as effectively as they need to.

Page 17 of the impact assessment discusses the “Continuation/Discontinuation of notification requirements”. As so often on this subject, the assessment says that things cannot be quantified. For example, it says that,

“it has not been possible to quantify the cost of those applying for subsequent reviews”,

in terms of the time involved. The Government do not seem to know what the costs will be. However, they do know that they will not have to pay those costs and that somebody else will. That is a concern.

Lord Lester of Herne Hill: So that I can follow the noble Baroness’s argument, is it the position of Her Majesty’s Opposition that there is some alternative to the view taken by the Joint Committee on Human Rights that these are sensible and proportionate ways of complying with the Supreme Court’s judgment and the relevant law? If she is suggesting that, it would be helpful to know what the alternative would be.

Baroness Smith of Basildon: No, at this point I am not suggesting an alternative. I would like the Government to go away and think about the alternatives. I will come on to this later, but if the Government are going to set up a review system, they will need to have more information about the system they are setting up—about the costs, benefits and risks.

I have looked at the costs. The Government say on page 19 of the impact assessment that the benefits will be similar to those listed in part 3 of the impact assessment, which are relatively minor. The assessment says that,

“it has not been possible to quantify these”—

other than to say that if people come off the list then there will be savings in police time. So the Government are not able to tell us the costs or the benefits.

As for the risks, there are a number of unknowns:

“There are the following unknowns in relation to this policy:

The actual volumes of applications for review;The impact of the review mechanism … The volumes of offenders whose indefinite notification requirements will be discontinued as a result of the review process;The potential impact of ending notification requirements on re-offending rates and detection rates.The actual costs and savings that will result”.

Is it wise not to quantify the costs, benefits or risks while taking a course of action? If the Government think that this is the right course of action then they should line these things up first.

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One risk, of course, is reoffending. The Government’s impact assessment states:

“A number of studies have been considered in the development of this policy which analyse reconviction rates of convicted sex offenders over a follow-up period of 20-25 years. There is no evidence that a point can be reached at which a sex offender presents no risk of re-offending. Approximately a quarter of the previously convicted offenders were reconvicted for a sexual offence within this time period”.

So, within 20 to 25 years, a quarter of those who had been convicted were reconvicted. However, the assessment does tell us:

“We do not anticipate any greenhouse gas impacts as a result of these proposals”.

I thought that that was rather bizarre.

I hope that the Minister can address some of the concerns that I have raised because they worry me enormously. However, there are some specific points about the order on which I am clear. The regulations refer to the “determining officer”, who I take to be the police officer who will make the judgment on the review. Are the Government clear about what rank, experience, training and guidance that officer should have? The order says that any review would have to be signed off by a superintendent. With the increase in workload given the 20% cuts, I am worried that that will make it more difficult for the superintendent. The review by the superintendent is unlikely to be a rigorous process. The rigour has to come from the determining officer who undertakes the review. Clearly the review itself will have to be a vigorous and detailed process, and I doubt that the Government intend that it should be otherwise. However, unless the Government can be assured that those in the review process have the experience, access to information and the relevant good training, any good intentions for rigorous process will not be realised.

What evidence does the Minister envisage will be required to enable someone to come off the register when they apply? Will it be sufficient for them not to have breached their notification requirements? Is the onus on the police to prove that they still pose a risk, or will the convicted person on the register have to prove that they no longer pose a risk? The Government have estimated the number of people who might be eligible for review. Has any risk assessment been undertaken to develop guidance on how many of those who are on the register are still deemed to pose a risk and should therefore stay on it?

5.30 pm

I also refer the Minister back to my comments about the very high levels of reoffending. What would happen if an offender were taken off the sex offender register and then convicted of a further offence? Would committing any sexual offence ensure that they would be put back on the register, or just those offences that would have qualified the offender to have been put on the register originally? Would somebody who had been on the register and then come off it only to go back on it—if they are able to go back on it—have the right of appeal in the future; or, as a result of the second instance, would they have to remain on indefinitely? Would there be a chance for them to appeal at a later date?

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There are also many cases where sexual assault cases do not get to court because the victims or witnesses do not want to give evidence or are perhaps unable to. For example, I have personal knowledge of a case where a rape victim was advised by the CPS to pursue an action for GBH rather than rape because it would be easier to get a conviction. I am sure that I am not the only person to have been given that information. Are there circumstances in which somebody who has been charged with an offence, or even cautioned during their time on the register, will still be allowed to come off the register?

It seems that there are some grey areas that the regulations do not cater for. I would be interested to know whether the Minister is able to address these points. I have grave reservations about the proposals both in principle and in practice. I understand the comments that the Minister made at the beginning about trying to achieve a balance—she described it as a balance between individual rights and public safety. However, the principle here is that risk is increased, as even the Government’s own impact assessment accepts. The risk is that a convicted serious sex offender could be removed from the register and then reoffend, which is a serious risk. I am sure that the Minister will understand exactly why this needs to be managed. In practice, however, it is an issue of resources to ensure that a review process is set up. For that process to be effective, efficient and risk-free it has to be properly funded—and yet the Government have taken this step at a time when they admit that it cannot be risk free, at a time of massive cuts in the police. I am not convinced that the review process can be as robust as the Government want it to be. I have to say to the Minister that would have given me sleepless nights when I was a Minister. We cannot accept that this is the right way to proceed. I understand that the Government are intent on doing this, but they will have to do it without our support.

Baroness Hamwee: My Lords, the remedial order is one that the House might well have expected to be considering earlier than July 2012. I recall the Statement made by the Home Secretary and repeated in your Lordships’ House responding to the order of the judgment of the Supreme Court in February 2011. “Reacting” might have been a better term than “responding”. I recall the Home Secretary saying that she was “appalled” by the ruling. The end of her Statement laid into the courts and referred to achieving,

“a legal framework that brings sanity to cases such as these”.—[

Official Report

, Commons, 16/2/11; col. 960.]

A number of us reacted to that reaction.

The Joint Committee on Human Rights has considered the appropriateness of the remedial order and my noble friend Lord Lester of Herne Hill will deal with its report. In February 2011 I recall my noble friend Lord Carlile of Berriew asking why we were not to get amendable primary legislation rather than an order, particularly given the controversial decision that there was to be no judicial procedure. The Explanatory Memorandum to the order says that we have it in this form in order to avoid delay. It seems to me that there has been some delay. Perhaps the delay is a proper delay and we will have a better outcome because of it.

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The JCHR has considered the matter twice. A Bill is before your Lordships’ House now which could give us the opportunity to deal with amendable provisions.

I recall my instinctive reaction that a review by the police was not appropriate and I have not really varied from that. The police review seems to be an administrative process. The court imposes the original sentence knowing that a sentence of 30 months plus means going on to the sex offenders register. That is mandatory. Perhaps the noble Baroness can tell us more about the procedure. She said that the Government have taken the view that the police are in the best position to make an initial— I think that was her word—assessment of the risk, which seemed to imply that there would be a second stage to the process. Of course, there may be if there is an appeal, but I may have misunderstood her.

I hope noble Lords will understand that I am not seeking to justify the offences, but does the offender get a hearing? That seems to me to be a basic right. What is the arrangement for allowing the two sides, as it were, to be argued? I am also uneasy that a further review may be deferred at this stage for a further 15 years. Very long periods seem to be involved. Can the noble Baroness also tell your Lordships about the form of the appeal to the magistrates? Listening to the debate, I have only just realised that I am very unclear about what form that may take. I am also uneasy about this being an appropriate matter for the magistrates’ court. I know that the JCHR accepts that, but I am a little doubtful whether, in so serious a matter, it should not go to a higher court. The noble Baroness, Lady Smith, asked about numbers. I had assumed that all, or almost all, offenders would seek a review. I am not sure why they should not.

On the regulations, I note that CEOP, ECPAT and others have said that these will close loopholes and enable more effective offender management. The requirements certainly tighten things up quite considerably. When the Government consulted, I wonder whether they had responses from organisations such as the Howard League which are concerned with the rehabilitation of offenders.

The Explanatory Memorandum says that the notification requirements will form an invaluable tool. I latched on to the word “invaluable”, given that the impact assessment has been unable to quantify the benefits. Perhaps that is a cheap point because I can see that it might be difficult to put a price tag on that and one would not want to put a price tag on the offences that might be prevented.

Lord Lester of Herne Hill: My Lords, I speak on behalf of the Joint Committee on Human Rights. I begin by pointing out to the noble Baroness, Lady Smith of Basildon, that on our committee, which was unanimous throughout consideration of this matter, were the noble Lords, Lord Dubs and Lord Morris of Handsworth, the noble Baronesses, Lady Kennedy of The Shaws and Lady Lister of Burtersett, and it was chaired by Dr Hywel Francis with Mr Virendra Sharma, MP. They are all supporters of the Labour Party and all took an entirely different view from that just expressed by the noble Baroness about this order. I am, frankly, astonished by the criticism that has been made on behalf of the Labour Party.

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The noble Baroness began by making some remarks about prisoners’ voting rights, contrasting that with the attitude taken with regard to this order. I remind her that under the previous Government, when the right honourable Jack Straw was Secretary of State for Justice and Lord Chancellor, no action was taken to give effect to the judgment of the European Court of Human Rights in the Hirst case and no action was taken in response to the recommendations repeatedly made by the Joint Committee on Human Rights. What is most welcome about the response of this Government to the judgment of the Supreme Court is that a highly emotive issue has been treated in the best possible way, by a process of parliamentary scrutiny of which I, personally, am very proud.

Under the Human Rights Act, a special procedure has been included. Where a court makes a declaration of incompatibility with a convention right, the special procedure allows the Government of the day to proceed by subordinate legislation—by affirmative resolution of both Houses—instead of having the need for primary legislation. This is done in order to bring our legal system into full compliance with European human rights law in an appropriate way, provided always that there is effective scrutiny.

The Joint Committee on Human Rights has the special role of scrutinising draft remedial orders and reporting to both Houses and to the Government as to whether there has been proper compliance. What has happened in this case is extremely welcome. In our first report, we were critical of the first draft remedial order, as my noble friend the Minister acknowledged. Then, the Government responded by listening, and by giving effect to all of our main recommendations. In other words, the work of our committee—an all-party committee, and a beyond-party committee, since it is not controlled by the Government—influenced the Government in reshaping the order which is now before the House for approval today. If one reads the most recent government response to what we have done, dated March 2012, one finds each of our points identified, responded to, and heeded. That is a sign of mature Government, acting in a responsible way, being accountable to Parliament through this watchdog committee, and now in this debate, in both Houses, by affirmative resolution.

The noble Baroness, on behalf of the Opposition, has queried in detail the impact assessment that has been tabled. I take the completely opposite view. I regard the impact assessment statement as admirable. It lists five different options. It explains why one of those five options was chosen. Of course it cannot quantify the benefits of complying with the law of the land, because the main benefit is to secure the rule of law. That is not something that can be measured in monetary terms and it is quite unreasonable to ask the Government to do so. The main thing, with which I should have thought the Opposition would agree, is the need to comply with the judgment of the Supreme Court of the United Kingdom.

5.45 pm

As my noble friend Lady Hamwee pointed out, when the judgment originally came out, some intemperate remarks were made by the Home Secretary and also

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by the Prime Minister. That was much criticised—I was one of the critics—because it undermines the rule of law when senior Ministers attack Supreme Court judges in that way. However, what has happened since then is most commendable. A highly emotive issue about sex offenders, who are some of the most evil and revolting criminals that one can imagine but are given a form of fairness and justice all the same, has been translated into a set of sensible legislative proposals that are not exactly as the Joint Committee on Human Rights wished but come very close to it. I say this because often the critics of the Human Rights Act do not realise that one of its benefits is the kind of parliamentary procedure that I have just described.

Some—not I think in my party—would prefer the fast-track procedure not to be there at all but would like everything to be done by primary legislation. That would make it harder to bring our legal system into compliance with the convention if it were a general matter. I know that that is not what my noble friend Lady Hamwee was saying. I have gone through the procedure because it is not realised that this is a remarkably subtle piece of legislation of which the Labour Party and the previous Government should be proud as it was one of their best achievements. I hope that I have not been too strongly critical of the noble Baroness, Lady Smith. However, I ask her to think again because her criticisms undermine the Human Rights Act process, which ought not to be a matter of dispute across the parties.

Baroness Stowell of Beeston: My Lords, this is a serious issue that needs to be dealt with sensitively. I am grateful for all contributions of noble Lords to the debate. In particular I am grateful to the noble Lord, Lord Lester, for confirming the JCHR’s agreement that this remedial order is compatible, and for the remarks he made about the process.

First, it may be worth repeating some of the things I said to make clear a couple of points before I respond to questions raised and points made in this debate. The crucial point is that convicted sex offenders who have been sentenced to two and a half years or more will still automatically be placed on the sex offenders register for life. This remedial order does not change that. The ruling that led to the order came from the UK Supreme Court. In response to some of the remarks of the noble Baroness, Lady Smith of Basildon, it is worth making it clear that every UK court in the land that heard the claim found in the same way as the Supreme Court before it came out with its final ruling.

As I said, the incompatibility that was found was around the right to a review, not the right to be removed from the sex offenders register. I can see why some listening to the debate—not the noble Baroness—might have misunderstood that. The Government were disappointed with the UK Supreme Court’s ruling, but we take our responsibility to uphold the law seriously, and that includes human rights law. That is why, in deciding how best to respond to the Supreme Court, we put at the front of our consideration the rights of the law-abiding, those who have the right to live without fear of predatory sex offenders.

5 July 2012 : Column 887

In line with the comments of the noble Lord, Lord Lester, I was a little surprised at some of the points made by the noble Baroness, Lady Smith. The last Government established the UK Supreme Court and enshrined the European Convention on Human Rights in UK law via the Human Rights Act 1998. That marked a change to our constitution which I am sure that her party would point to as a big step forward. But the other reason I was surprised at her remarks was because, after the Statement that has already been referred to was repeated in this House, her noble friend Lord Hunt of Kings Heath, who is very distinguished, described in an Oral Question he tabled on 17 March 2011 the ruling of the Supreme Court as “eminently reasonable”.

Referring not just to the comments that have been made in the Chamber today but speaking more broadly, none of us likes to be told that those who have done wrong also have rights. I certainly respect people’s anger and disappointment when they first learn about rulings which they feel will entitle people who they think of first and foremost as evil—the word used by the noble Lord, Lord Lester—to rights. However, a responsible Government have a responsibility to respond to that disappointment and anger with a proportionate way forward which meets people’s concerns, and that is what we are doing.

I turn now to some of the specific points that were raised and the questions put. The noble Baroness, Lady Smith, talked about inconsistency. As I have made clear on this remedial order to do with the sex offenders register, every UK court rejected the claim. I am sorry; I will start again by referring to prisoner voting rights, which she used to illustrate her claim of inconsistency. I have already said that every court in this land found in the same way as the UK Supreme Court with regard to the sex offenders register. On prisoner voting rights, every UK court that heard the claim that prisoners should have the right to vote rejected it. The only court that has found in favour of prisoners being given the right to vote is the European Court of Human Rights. There is a distinct difference and we are responding to the UK Supreme Court at this time.

The noble Baroness made several points about the risks associated with offenders having a right to appeal to be taken off the sex offenders register. Perhaps I may cover several issues. The first thing to make clear is that, so far as this process is concerned, the onus is on the offender to come forward and make an application. The offender has to decide that they want to make the application: it will not be done for them automatically. In doing so, they must make clear to the police why they feel they have changed in a way that makes them a suitable candidate for review. In considering their response, the police will naturally consult the other agencies involved when someone is placed on the sex offenders register and will take time to consider each case on its merits.

The noble Baroness, Lady Hamwee, asked about the rank of the officer who would consider this process: perhaps the noble Baroness, Lady Smith, did as well. I can confirm that the review will be carried out by a superintendent. That will be made clear in the statutory

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guidance on the review of indefinite notification requirements under Part 2 of the Sexual Offences Act, which we will publish once the order comes into force. This will stipulate that the determination as to whether an offender comes off the register or not will be made by an officer ranked at superintendent or above.

The other important point relates in a way to the other statutory instrument being debated, and I will talk about that in more detail in a moment. Sex offenders who are on the register are categorised in different ways and are subject to a great deal of scrutiny and surveillance. This is not something that will be considered in isolation.

The noble Baroness, Lady Smith, asked about what happens if an offender who had come off the register offends again. First, any failure to comply with the register is in itself an offence. Secondly, if the situation she described were to happen, the offender would be reconvicted and sentenced according to the crime they had committed. They would again be subject to notification requirements. There is no question whatever that an offender who has committed a crime will not be required to operate within the terms of the sex offenders register.

Baroness Smith of Basildon: The point I was trying to get at was whether someone who had been on the register as a convicted sex offender and had come off the register but was then convicted of a further sexual offence—but not one that would normally put them back on the register—would be put back on the register automatically.

Baroness Stowell of Beeston: I can follow up in writing if necessary, but these kinds of cases would be considered on their individual merits. If somebody had been on the sex offenders register for life, had succeeded in making an application for review and coming off the register, then committed a crime which would not automatically put them back on the register for life, then I would expect that the authority that made the decision to place them on the register would consider the fact that they were previously on the register for life. Someone who was put on the register for life and is then successful in having their case reviewed and comes off it will have done something which would, had the police known that they were about to do it, have disqualified them from coming off the register in the first place. Anything contrary to that would be surprising to me. If I need to do so, I will follow up in writing, but such a situation would not make a great deal of sense.

The noble Baroness asked about why we had determined 15 years as an appropriate time for an offender to make an application for review. I think that I covered that carefully in my opening speech by explaining that the evidence suggests that a sex offender, if they are likely to reoffend, will do so in the first few years following their release from prison. The longer the period that has elapsed after their release is, the less likely it is that they will reoffend. As the noble Baroness pointed out, the available evidence suggests that there is no specific scientific point at which it can be absolutely guaranteed that someone will not reoffend,

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but if there is any suggestion that they might do so, they would not be successful in being removed from the sex offenders register in the first place when they made their application for review. We are talking about 15 years after this person has been released from prison.

6 pm

Baroness Smith of Basildon: The impact assessment states that the figures relating to the reconviction rate of sex offenders covered a 25-year period, during which a quarter were reconvicted of a sexual offence. By the noble Baroness’s understanding, there seems to be a period of less than 15 in which they do not reoffend, but the impact assessment says that a quarter reoffend within 20 to 25 years of conviction.

Baroness Hamwee: My Lords, this is a terribly complicated area and I am sure that noble Lords are, like me, struggling to follow the sequence of events. It would be really helpful if the noble Baroness were to write to us afterwards, because this involves quite technical details and I, for one, am having trouble putting them into the context of the original offence and what the automatic and discretionary consequences of a conviction might be.

Lord Lester of Herne Hill: To be helpful, perhaps I may make another practical suggestion. I forgot to say that in its latest report the Joint Committee on Human Rights asked seven questions for clarification, all of which have been clarified by the Equalities Minister Lynne Featherstone in her letter of 15 June 2012 to the Joint Committee. They are important issues and, rather than trying to get them on the record here, it would be sensible if the letter I referred to or some other letter were copied to those who have taken part in the debate, put in the Library and made part of the public record. I do not want the Minister to have to face yet further questions tonight, given that it has all been dealt with satisfactorily but not widely read.

Baroness Stowell of Beeston: I am grateful to my noble friends. If that solution is satisfactory to the noble Baroness, Lady Smith, that is what I will do.

Let me see if I can make some progress in responding to some of the other important points raised in the debate. The noble Baroness, Lady Smith, raised issues about costs. The straightforward point is that we have developed this policy in complete and full consultation with ACPO, which understands the need to respond to the Supreme Court ruling. There is no additional money available, but ACPO is confident that the aims can be met from existing resources. To return to a point made earlier, we have found it necessary for us to address this incompatibility, and that is what we are doing. It is worth adding that there is no option for the Government to appeal to the European Court of Human Rights against a ruling by the UK’s Supreme Court. This is a finding by the UK Supreme Court. I have described as carefully as I can that we have acted in a way that will address its findings, but in a way that is also mindful of the rights of law-abiding

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citizens who have every right to be protected from predatory sex offenders. I think those were the main issues raised by the noble Baroness.

My noble friend Lady Hamwee asked why we had taken the course of a remedial order as opposed to primary legislation. My noble friend Lord Lester answered that quite comprehensively, so I will not repeat all that he said. As for my noble friend Lady Hamwee’s concerns about the police leading on this review as opposed to the courts, I have already acknowledged that this has been a point of debate with the JCHR, which has now found that our proposals are compatible. None the less, it is worth stating clearly that we firmly believe that the police are in the best place to carry out this review and to consider an application from an offender on the register. They are familiar with the issues locally and will continue to work closely with the other agencies who are all working hard to ensure the protection of people in their area.

My noble friend asked whether the offender would get an oral hearing. My understanding—and if I am incorrect I shall, of course, write to her—is that they will not get an oral hearing with the police; they will put forward their application and the police will make a decision. However, they have the right to appeal that decision to the magistrates’ court. The noble Baroness also made the point that she expected all offenders to seek a review of their place on the register. In response, I remind the noble Baroness that they are not entitled to do so until they have been on the register for 15 years after their conviction. So even if that was to be the case—and I am sure that many offenders will recognise that their application may not be successful anyway, which might dissuade them from putting themselves forward for a review—they will not all put themselves forward at the same time.

As to the other order before us and the various questions raised, primarily, by the noble Baroness, Lady Smith, about the notification requirements, she asked about consistency with the devolved Administrations. I will restate that this is a devolved matter and Scotland and Northern Ireland are able to reach their own decisions. However, we are liaising closely with the devolved Administrations and ensuring that we seek alignment between the systems of notification. Northern Ireland is taking steps to change the law and we are liaising directly to ensure as much consistency as possible, particularly on this issue of three days, as the noble Baroness raised. As to European Union countries, we took into account aspects of their review mechanisms. In our view the UK very much leads in sex offender management, but we have taken any action that is taken in other countries which we think is appropriate. However, we would rather ensure that our action is consistent with our own standards, to be at the forefront of this matter.

Before I close, perhaps I may respond to the noble Baroness’s comments about online identities. It is already a requirement for all offenders to notify the police of any alias that they use. None the less, the crimes to which she referred are very serious. I would prefer to respond to her separately on the matter of online identities, but the noble Baroness has given me the opportunity in raising it to say that a range of tools is

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available to the police to manage dangerous offenders, including sexual offences prevention orders, or SOPOs, which are intended to protect the public from the risk posed by sex offenders by placing restrictions on their behaviour. These orders can be made on application to a magistrates’ court. If somebody on the sex offenders register is doing something which gives rise to suspicion that they are about to commit a crime, it is possible for the police to get the necessary authority for them to take action. I wanted to take this opportunity to make that point because there is a risk when we talk, as we have today, exclusively about the sex offenders register that the public might be given the impression that the register is the only way in which we manage sex offenders. It is not—there is a comprehensive set of arrangements.

The Sexual Offences Act 2003 is important legislation that provides police and other agencies with essential tools and powers to ensure that they can effectively manage offenders who pose a risk to the public. I am proud to say that the United Kingdom has one of the most robust sex offender management systems in the world and these changes will ensure that it continues to do so. I commend the order to the House.

Motion agreed.

Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012

Copy of the SICopy of the Report

Motion to Approve

6.12 pm

Moved By Baroness Stowell of Beeston

That the draft regulations laid before the House on 5 March be approved.

Relevant document: 43rd Report from the Joint Committee on Statutory Instruments, Session 2010–12.

Motion agreed.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2012

Copy of the SI

Motion to Approve

6.13 pm

Moved By Baroness Stowell of Beeston

That the draft order laid before the House on 2 July be approved.

Baroness Stowell of Beeston: My Lords, the Government are determined to do all that they can to minimise the threat from terrorism to the UK and our interests abroad. Proscription of terrorist organisations is an important part of the Government’s strategy to tackle terrorist activities. We would therefore like to add the organisation, Indian Mujahideen—IM—to the list of 47 international terrorist organisations that are listed under Schedule 2 to the Terrorism Act 2000. Having

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carefully considered all the evidence, the Home Secretary’s firm belief is that IM meets the statutory test for proscription and that it is appropriate to exercise her discretion to proscribe it. This is the 10th proscription order amending Schedule 2 to that Act.

Section 3 of the Terrorism Act 2000 provides a power for the Home Secretary to proscribe an organisation if she believes that it is currently concerned in terrorism. The Act specifies that an organisation is concerned in terrorism if it: commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, including the unlawful glorification of terrorism; or is otherwise concerned in terrorism. If the test is met, she may then exercise her discretion to proscribe the organisation. In considering whether to exercise this discretion, she takes into account a number of factors which were announced to Parliament during the passage of the Terrorism Act 2000. The factors considered are: the nature and scale of an organisation’s activities; the specific threat that it poses to the United Kingdom; the specific threat that it poses to British nationals overseas; the organisation’s presence in the United Kingdom; and the need to support other members of the international community in tackling terrorism.

Proscription is a tough but necessary power. Its effect is that the proscribed organisation is outlawed and unable to operate in the UK. Proscription makes it a criminal offence for a person to belong to, or invite support for, the proscribed organisation. It is also a criminal offence to arrange a meeting in support of a proscribed organisation or to wear clothing or carry articles in public which arouse reasonable suspicion that an individual is a member or supporter of the proscribed organisation. Given the wide-ranging impact of proscription, the Home Secretary exercises her power to proscribe an organisation only after thoroughly reviewing all the available relevant information on the organisation. This includes open source material as well as intelligence material, legal advice and advice that reflects consultation across Government, including with intelligence and law enforcement agencies. Decisions on proscription are taken with great care by the Home Secretary and it is right that both Houses must approve the order proscribing a new organisation. Having carefully considered all the evidence, the Home Secretary firmly believes that IM is concerned in terrorism. Noble Lords will appreciate that I am unable to go into much detail of the evidence but I am able to summarise.

IM uses violence to achieve its stated aims of creating an Islamic state in India and implementing Sharia law. The organisation has frequently perpetrated attacks against civilian targets, such as markets, with the intention of maximising casualties. For example, in May 2008 a spate of bomb detonations in the city of Jaipur killed 63 and in September 2011 an explosion outside the High Court in Delhi reportedly killed 12 and injured 65. IM has sought to incite sectarian hatred in India by deliberately targeting Hindu places of worship. For example, an attack during a prayer ceremony in Varanasi killed a child in December 2010. The group also targets areas popular with tourists. For example, a shooting incident outside a tourist attraction in Old Delhi wounded two Taiwanese tourists in September 2010. The group also made an unsuccessful attempt to

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detonate an explosive device at the scene. The organisation has threatened to attack British tourists, so it clearly poses a threat to British nationals in India.

The proscription of IM will contribute to making the UK a hostile environment for terrorists and their supporters and will signal our condemnation of the terrorist attacks this group continues to carry out in India. IM is already banned by the United States, India and New Zealand; thus proscription will align the UK with the emerging international consensus. Proscription is not targeted at any particular faith or social grouping but is based on clear evidence that an organisation is concerned in terrorism. IM has carried out a large number of attacks in India, resulting in large numbers of civilian casualties.

I have already said that the Government recognise that proscription is a tough power that can have a wide-ranging impact. Because of this there is an appeal mechanism in the legislation. Any organisation that is proscribed, or anyone affected by the proscription of an organisation, can apply to the Home Secretary for the organisation to be deproscribed. If refused, the applicant can appeal to the Proscribed Organisations Appeal Commission, a special tribunal which is able to consider the sensitive material that often underpins proscription decisions. A special advocate can be appointed to represent the interests of the applicant in closed sessions of the commission. There is ample evidence to suggest that IM is concerned in terrorism and I believe it is right that we add the organisation to the list of proscribed organisation under Schedule 2 of the Terrorism Act 2000. I beg to move.

Baroness Smith of Basildon: My Lords, as the noble Baroness pointed out, the order before us today proposes that the Indian Mujahideen—IM—joins the list of 47 international terrorist organisations proscribed in the UK. I understand that a much smaller group of organisations operating in Northern Ireland is also proscribed.

It is a very serious matter for an organisation to be proscribed. It makes it an offence to be a member of that organisation, to support the organisation, to invite others to support the organisation or wear the uniform of the organisation. The uniform is not what we might think of in the traditional sense, but to wear clothes which might indicate that an individual supports that organisation. As the noble Baroness said, it is right that a decision to proscribe an organisation is never taken lightly. The consequences of proscription are serious, not least because it potentially criminalises every member of that organisation or group, so it must be reserved for the most dangerous groups, where there is clear evidence of terrorist activity.

Under Part 2 of the Terrorism Act 2000, a group can be proscribed only if the Home Secretary believes that the organisation,

“commits or participates in acts of terrorism”.

I have read the information available about the organisation and listened to the noble Baroness, and we are confident that there is evidence to support proscription of the organisation, so we will support the order.

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It is clear that the Indian Mujahideen is a terrorist organisation. The noble Baroness gave examples of the most appalling terrorist attacks that have taken place in recent years. It also shares responsibility for the general decline in security in parts of the Indian subcontinent. The group rose to prominence in 2007, but has been active since about 2001. I was looking at the background and history of the organisation. The noble Baroness will be aware that there are strong links between IM and the Students Islamic Movement of India, which was first identified back in 1977. I am not clear, and I am not sure that there is absolute clarity, about the exact nature of the relationship between the two organisations, but from what I have ascertained, the relationship between them may mean that their membership is fluid—if they are two separate organisations.

That is important because the Government have not included the Students Islamic Movement of India in the order. Was consideration given to including that organisation and do the Government consider that it is also a terrorist organisation? If the membership of those two organisations is that fluid, could members of the IM put themselves beyond the scope of the order by an IM branch or individuals converting back to the Students Islamic Movement of India and just change their membership? I am sure that that is not what the Government intend, but it would be helpful to have assurances that there is no such loophole in the order and that the Government have considered the issue and are confident that terrorists will not be able to evade the force of law through a legal technicality.

As the noble Baroness said, to proscribe an organisation, it is not sufficient that it be involved in terrorism. The Home Secretary has to take account of secondary considerations. She repeated them, and they are in the Explanatory Notes. She said that the Secretary of State announced them in 2000, but the Explanatory Notes state that they were announced in 2001, so we may need clarification that we are talking about the same criteria.

Is the decision to proscribe the organisation now the direct result of evidence suggesting an increase in the scale of IM’s activity? Can she—I appreciate that she may not be able to—say anything about the nature of the threat? I am particularly interested whether there is a specific threat from the organisation to UK citizens abroad or within the UK. Given the strong links, associations and connections between IM and the Students Islamic Movement of India, what is the Government’s assessment of either group’s activity in the UK and whether there is evidence of links between IM and other proscribed groups within the UK?

The final criterion in the Explanatory Notes to the order which the Minister mentioned is the need to support other members of the international community in the global fight against terrorism. The UK has proscribed the organisation now, following action already taken by India, New Zealand and the USA. What discussions have there been with these other countries? Was the UK asked to take this action by India and did the discussions that took place include references to the role of other organisations which I mentioned, such as the Students Islamic Movement of India? Are there also European consequences? I am not aware

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that any other European countries have proscribed or banned this organisation and I wonder whether the Government are in contact with our European allies on this.

Perhaps I might also ask one brief question about Hizb ut-Tahrir. The noble Baroness will be aware that before I came to this place I was in the other House for 13 years. At one point, during the first two years of Gordon Brown’s premiership, I was his parliamentary private secretary. I recall clearly that on Gordon Brown’s first outing at Prime Minister’s Questions, which is almost five years ago to the day, David Cameron, the then leader of the Opposition, chose proscription as his first topic for Prime Minister’s Questions. What Mr Cameron said then was very critical of the Labour Government. He said that Hizb ut-Tahrir,

“should be banned—why has it not happened?”.

When it was pointed out that evidence was required, Mr Cameron criticised that and said:

“What more evidence do we need before we ban that organisation? … when will this be done? … People will find it hard to understand why an organisation that urges people to kill Jews has not been banned”.—[Official Report, Commons, 4/7/07; cols. 951-2.]

As I said to the noble Baroness, these are very serious issues and it is not appropriate to have shouty debates across the Dispatch Box on them, as we had on that occasion. However, can she confirm whether she knows whether the Prime Minister still holds the view that he held about five years ago? Are we likely to see a further order coming forward concerning that organisation? These are serious matters, and I know that decisions to bring forward such orders are not taken lightly without examining evidence. However, I can tell the noble Baroness that this order has our support.

Baroness Stowell of Beeston: My Lords, I am grateful to the noble Baroness for her comments and very much welcome her support. She obviously made a number of points, which I will endeavour to respond to. However, I am sure she will appreciate that this being the matter it is, there is a limit to what I can say because of the sensitivities of what is under consideration. As I said and as the noble Baroness restated, there is a very clear process in the Terrorism Act 2000 that is followed before any decision is made by a Home Secretary to proscribe a group. The noble Baroness asked, as a point of clarification, whether the other factors that the Home Secretary considers were first stated in 2000 or 2001. I can confirm that they were stated in 2000, so wherever the discrepancy is we will make sure that that is properly addressed and corrected.

Most of the noble Baroness’s comments were linked to the Indian Mujahideen and she suggested some connections between that group and another, the Students Islamic Movement of India, which also goes by the name of SIMI. As she will understand, I am afraid that it is not possible for me to comment on intelligence matters. We keep the list of proscribed organisations under regular review but, if I might give her some assurance, if there is evidence that the IM has reformed itself under a different name, any new name will be subject to the same process of consideration for proscription. The use of an alternative name that is not listed does not prevent the police and Crown Prosecution Service taking action against an individual

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for proscription offences. There is a body of open-source information on links between IM and SIMI, but this is not necessarily information which we would endorse.

The noble Baroness raised questions about Hizb ut-Tahrir in particular. Before I respond to that specifically, it is worth pointing out that it is essential that when the Government—or any Government—take action to proscribe or ban a group, they have sufficient evidence to ensure that however great the revulsion at what people are doing, action is taken under the letter of UK law and that we have sufficient evidence of that law being breached. If not, when these people appealed, it could be a propaganda coup for them if we were to take action that failed.

Hizb ut-Tahrir is an organisation that the Government have significant concerns about. We will continue to monitor its activities closely. Such groups are not free to spread hatred and incite violence as they please. The police have comprehensive powers to take action under criminal law to deal with people who incite hatred, and they will do so. We will ensure that HUT and groups like it cannot operate without challenge in public places in this country; we will not tolerate secret meetings behind closed doors, on premises funded by the taxpayer. We will ensure that organisations are made well aware of HUT and of groups like it, the names under which they operate and the ways in which they go about their business.

The noble Baroness asked me about consultation with our European partners. The UK has the largest Indian population in Europe, as I am sure she knows. Other EU member states have tended to follow the UK’s lead in matters like this. She asked whether any European Union countries had proscribed IM. None has, but we do not necessarily wait to be led in this context.

I shall see whether there is any issue raised by the noble Baroness that I have not covered, but I think that has covered everything. I repeat my thanks and I welcome her support for the order.

In conclusion, I strongly believe that IM should be added to the list of proscribed organisations under Schedule 2 to the Terrorism Act 2000. IM has carried out a large number of indiscriminate mass casualty attacks in India. It has also sought to incite sectarian hatred in India by deliberately targeting Hindu places of worship. The number of victims of this organisation is over 150 and it is essential that we show our condemnation of its actions.

Motion agreed.

Fishing Boats (Satellite-Tracking Devices and Electronic Reporting) (England) Scheme 2012

Copy of the SICopy of the Report

Motion to Approve

6.33 pm

Moved By Lord De Mauley

That the scheme laid before the House on 24 May be approved.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments.

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Lord De Mauley: My Lords, the sustainability of global fish stocks is currently a matter of considerable concern. That sustainability depends in great part upon effective control and reliable data to inform the science. The electronic transmission of both satellite position reports—or VMS, vessel monitoring systems—and fishing activity reports in the form of electronic logbooks, forms an essential element of modern fisheries control. It is used more and more throughout the world to monitor fishing activity. The old paper-based systems of logbooks and landing declarations are both cumbersome and time-consuming for fishermen to complete. The input of the data from these paper records on to computerised databases is also resource-intensive for fisheries administrations.

Under EU law, the requirement to have this electronic equipment has now been extended from fishing vessels over 15 metres to fishing vessels over 12 metres. Extension of the technology to smaller vessels will significantly improve the monitoring in real time of fishing activity, as logbook information will be transmitted back to shore on a daily basis, rather than having to wait for the vessel to complete its trip, as at present. It will also greatly increase the risk of detection of attempts to misrecord catches and so contribute positively towards improving compliance and ensuring the sustainability of fish stocks.

The benefits of this new technology are therefore clear. Essentially, though, electronic logbooks and satellite tracking devices are control tools. Because of that, the Government have contributed towards their capital cost in the past. We think it right to continue to do so, and the new scheme therefore provides funding to smaller fishing vessels as required by Community law. It also allows for the funding of the installation of similar technology on vessels below 12 metres, should a decision for that be taken in future.

The Government are pleased to be able to offer financial assistance to fishermen in the purchase of the necessary VMS hardware and electronic logbook software. Similar assistance is being provided by other fisheries administrations in the UK and other member states. In England, the scheme will be administered by the Marine Management Organisation.

For VMS, we have appointed a single supplier of the equipment. However, for the electronic logbook software we have aimed to ensure best value for money by adopting a type approval process under which any software supplier can submit a product for approval. Six software systems have so far been approved. This will offer fishermen a choice of software to meet their own needs and introduce competition between suppliers.

Grant aid will be made available only for approved software systems. I nevertheless recognise that some fishermen may wish to purchase more sophisticated software that contains functions beyond those necessary to comply with our EU obligations. It is therefore reasonable to place a cap on the level of financial assistance that the taxpayer will provide, so we propose to limit the total amount of funding that will be available to English fishing vessels to £4,500 per vessel. On this basis, the overall cost of the funding scheme is not expected to exceed £770,000 for the 170 or so English vessels over 12 metres, and 90% of this is

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recoverable from Community funds under the EU aid regime, which provides cofinancing for member states’ expenditure on statutory control measures. The remaining amounts will be found from existing budgets.

We believe that the relatively modest costs of this scheme will deliver real benefits to both fishermen and fisheries administrations, so the scheme will provide real value for money. I beg to move.

Lord Knight of Weymouth: From the outset, my Lords, I make it clear that we do not oppose the draft scheme. Following the extension of Council regulation 1224/2009, it is clear that a funding scheme is needed to provide for payment to obtain the necessary equipment, and that the installation of satellite tracking devices and electronic logbooks on board fishing vessels is a positive step in promoting better working practices across the industry. We hope that the transition to an electronic system will provide a more effective and efficient method of determining what fish are caught and what location the stocks are fished from and, potentially, to address the difficult problem of discards, which many of us find repugnant. Any steps that are taken to improve industry standards to ensure the preservation of fish stocks will be wholeheartedly supported on this side, as are any measures for better working standards across the industry.

I do not wish to detain your Lordships’ House. I shall merely ask a couple of questions that were asked by my honourable friend Gavin Shuker in the other place which the Minister who was on duty, James Paice, did not have an opportunity to respond to, and I will be delighted if the Minister wants to respond in writing. When will the scheme be implemented, and have the Government set in place a timetable for the completion of the works? Has the EU set a deadline on carrying out this widening of the regulations, and will the Government be able to meet it? As I said at the beginning, though, we do not oppose this draft scheme and indeed welcome many of the elements of it. Any clarification of the details would be welcome.

Lord Hunt of Chesterton: My Lords, will the information that comes from this system be open or will it be completely secure to the MMO? Will it be possible, for example, to use that information to see all the other ships in our coastal waters coming from different countries in Europe, which causes considerable difficulty?

Lord De Mauley: My Lords, I am grateful to both noble Lords who have participated for their contributions. I am particularly grateful to the noble Lord, Lord Knight, for saying that effectively he agrees to the proposals. As I said at the outset, the use of this technology on smaller vessels will significantly improve the reliability of catch data and reduce the opportunity to cheat for those few who are inclined to do so. This can only be good for fish stocks. The modest costs of delivering these improvements in the way in which fisheries data are gathered are therefore, I suggest, justified.

The noble Lord, Lord Knight, referred to discards. I share his abhorrence of discards. Discussions are under way as part of negotiations towards reform of

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the common fisheries policy. We hope to conclude these early next year. He asked about timing. All the equipment will be installed by the end of the year. That is a little late, but it is not later than in many other member states. As to the openness of the information, about which the noble Lord, Lord Hunt of Chesterton, asked, for those other nations that need access to the information for purposes of monitoring our vessels in their waters—just as we will

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need to monitor their vessels in their waters—that information will be so shared. I am grateful to him for his comments and if I can add to that reply I will write to him. I hope that noble Lords can accept this scheme.

Motion agreed.

House adjourned at 6.41 pm.