Lord Wigley (PC): My Lords, I apologise for having missed the first two minutes of the speech of the noble and learned Lord, Lord Lloyd, in moving this amendment. As he and the Minister may well be aware, this subject has been exercised me considerably over many months now, having seen cases arising in Wales, and we had a debate on this matter earlier this year. I pay tribute to the way in which the noble and learned Lord, Lord Lloyd, has persevered with this important battle, by now over many months and years. The facts that he has put before the House this afternoon should most certainly be of concern to anyone who takes an interest in matters of law and who is concerned about the good name of the UK’s judicial system. The case is valid for the whole cohort, but I very much hope that,

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at least in the limited number of instances he has quoted, where very little risk is at stake, there can be no possible argument, even from the Government’s own standpoint, for not making progress on this matter. I follow the plea made by the noble Lord, Lord Carlile, that noble Lords of all parties across this House take this issue to heart. I very much hope that colleagues on the Labour Benches will stand up and be counted on this matter.

5.45 pm

The Lord Bishop of Rochester: My Lords, I stand here as someone who does not share the professional knowledge that some have shown very clearly in this debate; their arguments were clearly and well made. The simple argument from fairness as regards one cohort of prisoners against another has also been referred to, which is also a powerful argument. A very pragmatic argument has also been alluded to, which is that we have within the prison estate this group of prisoners who have good reason to feel unhappy with their lot. That cannot but make their management more difficult for those who are charged with managing them within the prison estate. Therefore, pragmatic arguments as well as what you might call moral and legal arguments are relevant to this case. I am one of those who would wish to support this amendment. Not only would it right a wrong, but it would lead to an easing of the burdens upon those who have responsibilities for the management of our prisons.

Lord Woolf: My Lords, I pay credit to the speeches that have already been made from all sides of the House, including, I am glad to say, from those Members of this House who are entitled to be known not only as “noble Lords” but as “noble and learned Lords”. I do not conceive that anyone would think that I was not in complete agreement with every one of their speeches. However, just in case that might not be the situation, I say most emphatically that I have never heard such an indictment of our justice system as I have listened to this afternoon.

Lord Dear (CB): My Lords, coming from a background in policing many years ago, it might be thought by those who indulge in stereotypes that I would be a lone voice advocating that we should get involved in what is sometimes called “lock them up and lose the key”. I stand in your Lordships’ House today to say that I fully accord with everything that has been said. The case was admirably laid out by the noble and learned Lord, Lord Lloyd of Berwick, and other noble and learned Lords in this House. I, too, agree with everything that was said, and if the House is invited to divide, I shall vote with the amendment.

Lord Clinton-Davis (Lab): My Lords, I fully support the argument adduced by the noble and learned Lord, Lord Lloyd. It goes without saying that we are entitled to remove a stain—and I say that advisedly—on our legal system. I will not detain the House for long, but I fully support what the noble and learned Lord, Lord Lloyd, has said, which has been supported by so many other Peers.

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Lord Beecham: My Lords, I join other noble Lords in paying particular tribute to the noble and learned Lord, Lord Lloyd, who has been indefatigable in pursuit of correcting an injustice. I will say at the outset that while I agree from these Benches that action needs to be taken to redress the situation, I will not be going through the Lobby with him, but nor will I, if the Government resist this amendment, go through the government Lobby. The problem is that the amendment may extend to people within the category, most of whom should certainly by now have been released, but who nevertheless remain, on proper assessment, people with whom there would be a risk if they were released. I submit that the correct procedure is for the Lord Chancellor and Secretary of State to exercise the power that is clearly given to him in the legislation.

One of the issues that has so troubled Members of this House and many outside is the failure of successive Governments—and I am afraid that it was true of the Labour Government—to provide the necessary resources which would enable people in serving these sentences to qualify for release. I am minded to refer to a letter which I received a month ago—one which other Members of your Lordships’ House may also have received. It is not from somebody who has actually been imprisoned for as long as those who are the subject of the amendment, but it is nevertheless a very telling example of what is still happening as a result of that failure to provide the resources, and shows the need for the system to be robust in examining the cases. I am not sure whether the writer of this letter would want me to quote their name or indeed the name of the prisoner on whose behalf the letter was written, but it will give a flavour of the situation, which is much worse for those who have been inside prison for a longer period.

The person in question, the correspondent tells me, was charged with attempted actual bodily harm and grievous bodily harm with intent, and was given a three-year IPP. He is now a year and a half over tariff, which is much less than those who would be covered by the amendment. In addition to the stress of not knowing how long his sentence will continue, during his incarceration he has suffered the loss of his wife and mother, and has been diagnosed with lupus and is obviously on medication for this. He has been an enhanced prisoner virtually throughout his sentence, with no reprimands, sanctions or IEP warnings. He is the healthcare representative for his wing as well as the violence reduction and older persons’ representative. He has undertaken every course advised by the authorities and completed his sentence plan. Together with fellow IPP prisoners, he now needs to know what further action they can take to secure their release date. Just knowing their official release date would give both them and their families something on which to focus. Having a definite date when their future will start will enable them to put their past troubles behind them. To have no end to their sentence is surely unacceptable in this day and age, and in fact is the reason that this whole system was deemed out of date and not viable.

That is a very clear illustration and telling indictment of the present situation. It has to be corrected. For the reasons already given, I do not believe that the noble and learned Lord’s formulation quite meets those requirements or deals with—

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Lord Wigley: If this formulation does not meet the requirements, why has the Labour Party not put forward its own amendment to do so?

Lord Beecham: Because the Act to which we have already referred gives the Secretary of State the power to do exactly what is required. He should be exercising that power, and that is what we would expect him to do.

We share the concern of all Members of your Lordships’ House, and the deep anxiety voiced about what is happening to people who serve much longer sentences than the person whose plight is laid out in this correspondence. We call upon the Government to use the power that they rightly conferred upon themselves just two years ago. In that way the matter can be resolved. Of the 650 prisoners, while some are still deemed to be at high risk, many are already deemed to be at low risk and on that account very likely to be released. As other noble Lords have pointed out, that will free up prison spaces and potentially reduce the cost to the public purse, both of which are highly desirable objectives. Therefore I hope the Minister can give an indication that action will be taken—if not necessarily strictly along the lines that the noble and learned Lord, Lord Lloyd, has proposed then in some other way—to deal with the appalling situation affecting too many people which has accumulated over the years.

Lord Faulks: My Lords, this has been an excellent and very well informed debate, with contributions from sources well versed in the law and experienced in criminal law, and sources who had occasion to come into contact with the law and its implications. I am grateful for all those contributions, many of which were extremely economical—I congratulate noble Lords on their restraint in allowing the House to proceed—but powerful.

We return to this subject of IPP prisoners who remain in prison despite the fact that the sentence has now been abolished and may not be imposed on offenders convicted after December 2012. We debated a very similar amendment at length in Committee so I do not intend to rehearse the entire debate we had then. Noble Lords are well aware of the Government’s position and we do not think it would be right or appropriate retrospectively to alter IPP sentences that had been lawfully imposed prior to the sentence’s abolition, particularly because these sentences were imposed with public protection issues in mind. However, I recognise, as many noble Lords have said, that fairness—an elusive concept though that is—should be at the forefront in considering these issues, as should the equally elusive concept of justice that is vital in considering issues of this sort. I am also painfully aware of the implications of keeping any prisoner one day longer than he or she ought to be kept in prison because of the expense involved, expense that we can ill afford, but the Secretary of State has to balance concepts of fairness and justice with his duty to protect the public.

Perhaps I may make one or two observations about the history, which has been summarised by noble Lords in the course of this debate. While echoing the

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worthwhile tributes paid to the noble and learned Lord, Lord Lloyd, for his tenacity in this area, I cannot quite agree with his assessment of the disparity in position between short-tariff IPP offenders sentenced before the 2008 reforms and those sentenced afterwards. It is not the case that, prior to 2008, courts were without any discretion in imposing IPP sentences. It was in the court’s discretion to judge whether the offender met the high risk threshold set out in the 2003 Act—did he present a significant risk of serious harm? The presumption that he presented such a risk if he had committed a previous Schedule 15 offence was a rebuttable presumption, and the court was free to disregard it if it was not a reasonable view in the individual case. I do not deny that, where they found the offender to meet the dangerousness threshold, courts were indeed obliged to impose IPPs on eligible offenders, and that was plainly Parliament’s intention.

I should also stress that it remained possible to receive an IPP with a lower tariff than two years until IPPs were abolished by this Conservative-led Government by the LASPO Act 2012 where the offender had a serious previous conviction, and in fact a number continued to get short-tariff IPPs. It is likely that some of those sentenced to IPPs with short tariffs between 2005 and 2008 would have remained eligible for an IPP, and perhaps received an IPP after the 2008 reforms. I cannot agree, therefore, that this group of IPP prisoners can be presumed to be less dangerous than other IPP prisoners.

As I have said before, it is right that offenders serving indeterminate sentences of imprisonment for public protection—a species of preventive detention, as the noble and learned Lord, Lord Brown, said—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. The noble and learned Lord, Lord Lloyd, and a few others have seen an analysis of management information, prepared last year, relating to the situation of IPP prisoners who were sentenced prior to July 2008 with tariffs of under two years, who remained in prison and whose tariff had expired.

It is true that initially the cost of providing the information, which has been accurately summarised by the noble and learned Lord, was considered too high but, such was his tenacity and, as I understand it, such was the respect that the Ministry of Justice had for him, the information was provided and has been summarised by the noble and learned Lord. The position is that my colleague the Prisons Minister, Andrews Selous, has agreed with the House authorities that the information can be lodged in the House Library. It will take one week for this to appear but I confirm that he has requested that it be put in the Library. However, I can also confirm that the figures that the noble and learned Lord announced were accurate, so they have informed the debate in terms of the numbers and the periods in prison.

6 pm

In my view, this information provides clear evidence that the continued detention of short-tariff IPP prisoners remains justified, and the Parole Board still considers

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that they pose an unacceptable risk to the general public and to themselves in many cases. In 2013, a sample of 100 prisoner cases from this group was subject to thorough analysis. Of these, the majority—80—were assessed as being at high risk of serious harm. None was assessed as being at low risk of serious harm.

We have recently provided further data on this group to the noble and learned Lord, Lord Lloyd. A total of 121, or 16%, of prisoners from the group that remained in custody as of 31 March 2013 achieved release during the 12-month period to 31 March 2014. Of those remaining in custody, the proportion of prisoners who are at high or very high risk of serious harm has increased to 83% of the group—again, with no prisoners assessed as being at low risk of serious harm.

It may be helpful if I briefly explain how the risk scores work in the data that some noble Lords will have seen. These data include OGRS scores, which deal with the risk of reconviction, and RoSH scores, which deal with the risk of serious harm. Although a proportion of IPP prisoners are at low risk of reconviction, the degree of harm that they are likely to cause if they reoffend is in most cases high or very high, in other cases medium but in no cases low. The fact that a substantial number were, in fact, approved for release clearly also demonstrates that, where the risk has reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.

All IPP prisoners, irrespective of sentence length, must have their parole review upon tariff expiry, and at least every two years following that, before the independent Parole Board. As of 31 March 2014, 650 IPP prisoners were, as the noble and learned Lord said, still in custody, having received a tariff length of less than two years prior to the changes brought about by the 2008 Act. In accordance with policy, all these offenders should have had a parole review on their tariff expiry and subsequent reviews at least every two years. This means—this is an important point—that almost all, if not all, will have received at least three parole reviews concluding that they were not safe to release on grounds of risk of harm and public protection.

The noble and learned Lord, Lord Brown, and others say that this amendment would cause Parliament to bypass the Secretary of State. It would also cause it to bypass the decision-making by the Parole Board, which comes to its decisions on grounds of public protection. To release all of these prisoners now would be to run an unacceptable risk to the public. It would amount to a blanket judgment that goes against the repeated independent advice of the Parole Board, which has examined each case on an individual basis and decided that the risks to the public of release would be unacceptable.

I am sorry that the noble Lord, Lord Beecham, is unable to be more specific on why the party opposite will not be following the noble and learned Lord, Lord Lloyd, if he chooses to divide the House. However, it may be that the argument that would persuade his party is the protection of the public and the fact that

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these prisoners—short tariff though they may have had—have been assessed by the Parole Board in accordance with the test.

There has been reference to Section 128 of the LASPO Act, which gives the Secretary of State a power to change the Parole Board’s release test for IPP prisoners. We have no current plans to use this power. The figures that I have just referred to suggest that the current system is operating properly to ensure that the most dangerous are not released and that those whose risk can be managed in the community are able to attain release. Greater numbers of IPP prisoners are now achieving release as they succeed in reducing their risk. As I have said to Parliament on a number of occasions, courses are increasingly being made available to IPP prisoners. The fact that a prisoner attends a course may assist in their assessment but it is no guarantee that he or she will become more suitable or eligible for release. Similarly, the fact that they do not attend a course does not preclude them from being assessed as suitable for release.

I shall now address the text of the amendment of the noble and learned Lord, Lord Lloyd. It would effectively, as I read it, lead to these prisoners being automatically released as it would mean that there would be no discretion for the Parole Board to do other than direct release. That is not the Government’s policy, as noble Lords are aware, and I would be unable to accept the amendment on those grounds. However, in my view, there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle.

The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release indeterminate prisoners who have a tariff of less than two years and who were sentenced prior to the 2008 changes to the Criminal Justice Act 2003. Section 128 gives the Secretary of State a power to change the Parole Board’s release test by order. The amendment appears to force the Parole Board to direct release of these prisoners without use of any discretion, even if it thinks it unsafe.

The retention of a Parole Board role in the process is presumably designed to align as much as possible with the current statutory arrangement. However, I think it would be problematic to give responsibility for release to the Parole Board if in fact there were no discretion for the Parole Board under this proposal. In addition, the use of the phrase “indeterminate sentence” leaves it doubtful whether life sentences that fit the criteria would also be caught, which I assume is not the intention.

I have already discussed the role of the Parole Board and I think that it was sufficiently covered during earlier debates. Whatever the difficulties the Parole Board is currently facing, the reality is that IPP prisoners continue to achieve release where they are able to show that any ongoing risk is capable of being managed effectively in the community. Since 2010, the number of IPP prisoner releases has grown, and we saw more than 400 IPP prisoner releases in 2012 and 2013.

Despite the force of the arguments, I hope that my response has persuaded the House that, well intentioned

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though the amendment is, it is not one that we should support. I therefore ask the noble and learned Lord to withdraw it.

Lord Woolf: Before the noble Lord sits down, I wonder whether he can help me on one matter. Does he accept that a shortage of resources, either in the Parole Board or within the Prison Service, in providing courses for persons in the category that my noble and learned friend Lord Lloyd has identified has caused an unintended consequence in that—possibly; one cannot say it with certainty—these prisoners have been detained for far longer than they should have been, and that, equally, there is going to be further delay before their cases can be fully considered?

Lord Faulks: I accept that there have been certain delays in providing all the courses that might have been provided. Indeed, that has been the subject of quite widespread litigation, when individual prisoners have received compensation. Sometimes the compensation has been a higher figure if the court has thought that it would have made a difference and sometimes a lower figure if the court has thought that it would have made no difference. However, the test remains the same, regardless of cases, as I said a little earlier. The Parole Board has of course had a number of pressures, as I described earlier, not least caused by the Osborn, Booth and Reilly case. As I also indicated, increased resources have been provided financially, and there is a general awareness in the Parole Board—an arm’s-length body but under the Ministry of Justice—of the need to provide hearings as soon as practicable. However, I have responded by pointing out the fact that all these prisoners have had their cases reviewed by the Parole Board, and we believe that the system is working satisfactorily.

Lord Lloyd of Berwick: My Lords, I regret to say that I do not find the Minister’s reply satisfactory in any way, no more than it was on the previous occasion. I do not intend to deal with any of his arguments, save just to mention one. He criticised the amendment on the grounds that we would be bypassing the discretion of the Lord Chancellor, but that is the whole point of the amendment. The Lord Chancellor has declined to exercise that discretion, so it is up to us now to exercise it in place of him. That is the purpose of this amendment.

The amendment has been supported in the strongest possible terms—indeed, some of the strongest terms that I have ever heard in this House—by lawyers and non-lawyers alike. I particularly value the support of the non-lawyers. The official position of the Opposition is that they cannot support the amendment but they are not opposing it. I hope that a great number of those who are sitting on the Opposition Benches will support the amendment for the reasons that have been so clearly explained by others. Nevertheless, I must express my gratitude for the fact that the Official Opposition are not opposing it.

There is just one other thing that needs to be said. From the many letters that I and others have received, both from prisoners and from their families, I know that this debate is being followed by those who will be most affected by the result. They will carefully read

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what we have said. They are looking to us in this House to do something for them, and I hope that we will not let them down. I wish to test the opinion of the House.

6.13 pm

Division on Amendment 39

Contents 80; Not-Contents 170.

Amendment 39 disagreed.

Division No.  2


Aberdare, L.

Adebowale, L.

Ahmed, L.

Alton of Liverpool, L.

Andrews, B.

Armstrong of Ilminster, L.

Avebury, L.

Bottomley of Nettlestone, B.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Butler of Brockwell, L.

Carlile of Berriew, L.

Carter of Coles, L.

Clancarty, E.

Clinton-Davis, L.

Colville of Culross, V.

Cotter, L.

Craig of Radley, L.

Craigavon, V.

Dear, L.

Dykes, L.

Eames, L.

Erroll, E.

Faulkner of Worcester, L.

Fellowes, L.

Gibson of Market Rasen, B.

Glenarthur, L.

Griffiths of Burry Port, L.

Hardie, L.

Healy of Primrose Hill, B.

Hennessy of Nympsfield, L.

Hope of Craighead, L.

Howarth of Breckland, B.

Howe of Idlicote, B.

Hurd of Westwell, L.

Irvine of Lairg, L.

Janvrin, L.

Jones, L.

Judd, L.

Kerr of Kinlochard, L.

Kilclooney, L.

Laming, L.

Listowel, E.

Lloyd of Berwick, L. [Teller]

Low of Dalston, L.

Lytton, E.

Mackay of Drumadoon, L.

Maclennan of Rogart, L.

Marks of Henley-on-Thames, L.

Marlesford, L.

Martin of Springburn, L.

Masham of Ilton, B.

Meacher, B.

O'Neill of Bengarve, B.

Pannick, L.

Patten of Barnes, L.

Phillips of Worth Matravers, L.

Plant of Highfield, L.

Ramsbotham, L.

Rochester, Bp.

Rowe-Beddoe, L.

Rowlands, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sharkey, L.

Smith of Finsbury, L.

Soley, L.

Stern, B.

Stoddart of Swindon, L.

Thomas of Gresford, L.

Tonge, B.

Tyler, L.

Walpole, L. [Teller]

Wigley, L.

Williams of Baglan, L.

Wilson of Tillyorn, L.

Winston, L.

Woolf, L.

Young of Hornsey, B.


Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B.

Arran, E.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Berridge, B.

Black of Brentwood, L.

Blencathra, L.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Brinton, B.

Brougham and Vaux, L.

20 Oct 2014 : Column 468

Browne of Belmont, L.

Browning, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Carrington of Fulham, L.

Cathcart, E.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Crickhowell, L.

De Mauley, L.

Deighton, L.

Denham, L.

Dixon-Smith, L.

Dobbs, L.

Dundee, E.

Eaton, B.

Edmiston, L.

Empey, L.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Fellowes of West Stafford, L.

Fink, L.

Finkelstein, L.

Fookes, B.

Fowler, L.

Framlingham, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

Glasgow, E.

Glendonbrook, L.

Goodlad, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Hooper, B.

Horam, L.

Howe, E.

Howells of St Davids, B.

Humphreys, B.

Hussain, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lingfield, L.

Liverpool, E.

Luke, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Maddock, B.

Magan of Castletown, L.

Mancroft, L.

Manzoor, B.

Miller of Chilthorne Domer, B.

Moynihan, L.

Naseby, L.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northbrook, L.

Northover, B.

O'Cathain, B.

Oppenheim-Barnes, B.

Palmer of Childs Hill, L.

Parminter, B.

Perry of Southwark, B.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Rennard, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Roper, L.

Ryder of Wensum, L.

Sanderson of Bowden, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Sterling of Plaistow, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Suttie, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L. [Teller]

Tebbit, L.

Teverson, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trenchard, V.

Trimble, L.

Truscott, L.

Tugendhat, L.

Verjee, L.

Verma, B.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

20 Oct 2014 : Column 469

6.24 pm

Clause 14: Minor amendments and transitional cases

Amendment 40

Moved by Lord Faulks

40: Clause 14, page 15, line 17, at end insert—

“( ) In section 250 (licence conditions), for subsection (5A) substitute—

“(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison, to a prisoner serving an extended sentence imposed under section 226A or 226B, other than a sentence that meets the conditions in section 246A(2) (release without direction of the Board).

(5B) The Secretary of State must not—

(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or

(b) vary or cancel any such condition included in the licence,

unless the Board directs the Secretary of State to do so.”

( ) In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), for “section 246A” substitute “this Chapter”.”

Amendment 40 agreed.

Amendment 41

Moved by Lord Beecham

41: After Clause 16, insert the following new Clause—

“Stop and search of children below the age of 10

In section 1 of the Police and Criminal Evidence Act 1984 (power of constable to stop and search persons, vehicles etc.), after subsection (2) insert—

“(2A) Where the person is below 10 years of age, an appropriate adult must be present before the search may be undertaken.””

Lord Beecham: My Lords, this amendment addresses the problem of stopping and searching children below the age of 10 and requires an appropriate adult to be present before the search is undertaken.

As I said in Committee, the amendment stems from the report of the All-Party Parliamentary Group on Children chaired by my noble friend Lady Massey. In reply to a request for information about stop and search, the group was told that between 2009 and 2013, 1,136 children under the age of 10 were subjected to the process in 22 police force areas. The figures are something of an underestimate because the Met’s record did not include 2009 and 2011, and other forces did not supply information. It is noteworthy and somewhat surprising that the Sussex police force apparently conducted 454 of those searches, which is a high proportion of the total number. That suggests either that there are some particular problems in that force’s area, or, perhaps more probably, that recording elsewhere is not reliable, so the national figure is probably understated.

It is regrettably apparent that there is no complete picture of the number of children under 10 who have been subjected to this procedure, such that the scale of its use can really only be estimated. In Scotland, 72 children of seven years or under were stopped and searched. Some forces make an effort to take a child home before searching, but they were unable to say

20 Oct 2014 : Column 470

how many looked-after children were subject to the procedure, and only 20 police forces—around half—had separate custody facilities for children in the police stations.

The all-party group very reasonably suggested that data should be collected in relation to ethnicity and on other aspects, noting that among the forces that supplied data on the ethnicity of under-18s, 41% were black and Asian—a disproportionately high quotient. It was noted that some forces do not even record the names and addresses of these children or their dates of birth.

The Home Office has reviewed stop and search powers in general. I congratulate the Home Secretary on the steps taken in that respect, but specific guidance on this issue appears to be lacking. In his reply in Committee the Minister appeared to be somewhat complacent, if I may say so, when he stated that existing provisions were adequate. He referred to the safeguards already in place for stop and search powers, stating that the police were obliged,

“to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure”.—[

Official Report,

14/7/14; col. 471.]

We are talking about children under the age of 10. How realistic is that assurance in the circumstances? As I said, in Scotland and possibly other force areas, children under seven were subjected to the procedure.

The all-party group made a number of recommendations, including that an annual review of stop and search powers should assess the proportionality of stop and searches in relation to age, including the stopping and searching of children under 10. It recommends that the PACE code should be revised to require the recording of the date of birth of children and young people on stop-and-search forms and central recording systems, with specific guidance on carrying out the procedure, including advice on safeguarding and child protection, and that steps should be taken to protect vulnerable children—for example, those in care or at risk of abuse.

It said that the annual review should assess the proportionality of stop and searches of under-18s in relation to ethnicity; that the Home Office and the DfE should work with police to consider how best to monitor the rates of search of looked-after children; and that all newly built custody suites should have a separate area for children and young people, with the Home Office directing forces to consider the allocation of areas to be used separately for children and young people within existing facilities. Finally, it suggested that the Home Office should work with ACPO to share good practice in developing juvenile custody facilities.

6.30 pm

The Minister, in replying to the debate, did not comment on any of these matters, but instead indicated that the Government would respond to the all-party group’s final report, which is due to be published this month. That report will deal specifically with recommendations regarding under-10s: namely, whether there should be a presumption against stop and search for this group, other than in exceptional circumstances;

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where the procedure should take place; and whether it should occur only in the presence of an appropriate adult, carer or parent in the family home.

Generally, I commend the approach of the Home Secretary in relation to changes in stop and search, but the Minister should surely by now be in a position to indicate the Government’s response to the existing recommendations of the all-party group, all of which apply to under-10s as they do to others, and some of which are exclusively concerned with them. Perhaps the Minister would also indicate whether the department has looked at the Scottish system to which I referred in Committee. In Scotland, despite the revelation that some children under seven years of age had been the subject of stop and search, there has now been a radical change and stop and search of children under 12 years of age is to be ended completely.

This amendment does not go that far, but it does suggest that there should be an “appropriate adult” present. That really should not be too difficult. It need not necessarily be a parent—although clearly that would be desirable—but there should be others available: for example, from the children’s services of the relevant local authority, or voluntary organisations concerned with childcare. It should be possible to have somebody contactable and available to be present when a child of that age is subjected to what must be, however carefully it is carried out, a somewhat alarming and intimidating experience—I suspect that the younger they are, the more intimidating the experience.

I hope that the Minister will be able to indicate some movement from the Government on this matter. It seems like a throwback to a much earlier age for child offenders. We should be able to deal more sensitively with the problems encountered by young people, even if there is some reason to believe that they may themselves be the cause of some problems. I hope that the Government will not necessarily wait for the APPG report to come out but will give an indication of their current state of thinking on this issue and perhaps on the broader issues which the all-party group has already covered. I beg to move.

Lord Faulks: My Lords, I am grateful to the noble Lord, Lord Beecham, for setting out his amendment so clearly. What lies behind it is wholly understandable. However, it must be put in the context of the significant programme of reforms that the Government have introduced on the police use of stop and search, to which the noble Lord did make reference.

Noble Lords will be aware that on 30 April, the Home Secretary announced a comprehensive package of measures to reform the way that stop and search is used. The measures, some of which were launched on 26 August, will ensure that the powers are used fairly, effectively, and in a way that encourages community confidence. These measures will impact positively on all sections of the community, including children. The Government are highly sensitive to the need to ensure that sufficient safeguards are in place so that the public can trust the police to use all their powers appropriately. The Police and Criminal Evidence Act and its codes of practice have robust

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safeguards that ensure consistency, transparency and rigour in the way in which stop and search is used by the police.

The use of stop and search has reduced significantly under this Government. However, these powers are vital in the fight against crime and the police must be able to act promptly should they have a reasonable suspicion that a person is carrying an unlawful item. It is a sad fact that in some areas it is quite common for children under the age of criminal responsibility to be used by older children and adults to carry drugs and weapons and, in some cases, firearms for the criminal benefit of others, either in the hope that police may not suspect that they are being used to carry the items or in the knowledge that if they are suspected of being couriers or are stopped and searched, they cannot be arrested or prosecuted for any criminal offence because they are below the age of criminal responsibility.

There are also operational difficulties. How does a police officer judge a child’s age with any precision? What do the police do while waiting for the “appropriate adult” referred to in the amendment to arrive? There are safety issues, too. What if the child has been given a gun or a knife by older gang members? One knows how easy it is for older gang members to manipulate younger ones.

These issues need mature consideration. That is why I maintain what I said in Committee, that although we remain open to revising or improving—if appropriate—the very considerable steps we have taken to improve stop and search powers, we will await the final report at the end of this month and take notice of any recommendation to change the operational procedures. However, I am sure the noble Lord and the House will bear in mind the significant reform package that we have already brought before the House.

I will me give a further example of the operational difficulties that might be caused if this amendment were to find its way on to the statute book. Imagine that a fight breaks out between two gangs of youths and the police have reasonable suspicions that weapons have been concealed. If the police were then required to wait, this could prevent them from acting in a case where there is an immediate issue of public safety involved. That could be difficult, as I am sure the House will understand.

There are already important safeguards attached to Section 1 stop and searches, which were outlined when the amendment was last debated on 14 July. They apply to anyone who is stopped and searched, regardless of age. Furthermore—this is worth stressing—Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions.

This is stop and search—which is, one hopes, a fleeting encounter to, if necessary, disable somebody who the police reasonably think has something that they need to have removed from their possession. However, in response to the noble Lord’s understandable concern, let me stress that the Government have made a priority of ensuring that stop and search should be used fairly, so that the police target this power when they have reasonable suspicions that a person is carrying

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an unlawful item. In those situations, where there is a risk to public safety, we suggest that it is right that the power to stop and search an individual is not unduly restricted, regardless of age.

Unfortunately, it is not entirely a creature of a bygone age, as the noble Lord suggests, in harking back to Oliver Twist or something of that sort. There is a case that, unfortunately, young children are used in the way that I have described. The requirement to wait until an “appropriate adult” turns up is difficult, and unnecessary in light of the safeguards that exist to protect the welfare of children under the age of criminal responsibility.

While I understand the noble Lord’s concern, and the initial hesitation that anybody would have with a child under 10 being involved in the criminal justice system, we suggest that there is reason for this power to exist, appropriately circumscribed in the way that I have attempted to describe. For those reasons I ask the noble Lord to withdraw the amendment.

Lord Beecham: My Lords, I am grateful for the Minister’s response. I shall not ask the House to divide on the amendment but I will make a couple of suggestions to him. First, in the mean time, the proper recording of events—ascertaining names, addresses and dates of birth—should become pro forma. It is surprising that it is not yet universal. It would be a relatively straightforward matter. I presume that it would be for the Home Office to direct the police authorities, but no doubt words ought to be had with ministerial colleagues about that. Secondly, given that Scotland has now changed the law, I suggest that in a year or 18 months, whichever Government are in office at that time—I hope that it might be a different one—could look at the Scottish experience. I take the Minister’s point but it is more relevant to the stopping than to the searching. We agree that it necessary for the police to stop, but the question is about the search part of it. Given that Scotland has made a change in respect of the age of 12, I would have thought that its experience, within a relatively short period, would be relevant here. If the Minister would be good enough to give an undertaking—if he or his party are still in office at that point—that that would be put into force, it would be a welcome concession. I hope that an incoming Government from our party would take the same position. In the circumstances, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Clause 19: Ill-treatment or wilful neglect: care worker offence

Amendment 42

Moved by Baroness Meacher

42: Clause 19, page 18, line 3, leave out “It is an offence for”

Baroness Meacher (CB): My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.

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I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.

Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.

Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.

Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.

The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.

Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in

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serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?

I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.

I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.

As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.

The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.

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Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.

Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.

Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.

Baroness Finlay of Llandaff (CB): My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.

I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support

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its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.

I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.

I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.

Lord Winston (Lab): My Lords, I hope I will be forgiven a short interjection on the amendment, which I fully support, particularly the points raised by the noble Baronesses, Lady Meacher and Lady Finlay. Perhaps I can best illustrate the point I want to make by telling a true story to the Minister, who I know is a very compassionate man. I think, like me, he will feel extremely angry about this particular incident within our health service.

My next-door neighbour was ill for years with Parkinson’s disease and, eventually, was so incapacitated that he had to be taken into care because he could not be looked after at home. His wife reluctantly saw him go into care. When eventually he became comatose, he was admitted to the Royal Free Hospital in Hampstead. His wife went to visit him every day while he was comatose. She used to speak to him and a nurse came up and said, “Madam, I don’t know why you are speaking to him because, of course, he can’t hear a word you are saying”. The nurse did not recognise that an unconscious patient is often fully capable of hearing and at least mentally responding if they cannot physically respond. In a sense, that is a pretty neglectful issue.

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After a while, my neighbour’s wife—I should say that her husband has since died—then went to the nursing station and said, “My husband has not been washed or shaved for five days. He is lying in bed in a very dishevelled state and I feel very unhappy about this”—she is a very polite woman. The nurse in charge said, “That is not my job. I have nothing to do with that”. She was then rather cursorily directed towards a ward orderly. She said to the ward orderly, “I wonder if there is any possibility that my husband could be washed and shaved”. The orderly simply said to her, “That is not my priority at the moment”.

Does the Minister feel that that is wilful neglect? It seems to me to be a question of definition. I am sure that he feels, as I do, that this is not a criminal offence and not suitable for punishment with imprisonment. It is certainly suitable for a reprimand and for proper management in a ward of a teaching hospital.

Sadly, this kind of incident is not rare. It goes on all the time and goes on particularly, as we all know, in wards with distressed, elderly people, some of whom are sometimes completely irrational and sometimes mentally disturbed and wandering. Often they are treated with grave disrespect at the least—and often they seem to be treated with a good deal worse. I do not believe that that is wilful neglect, but if this amendment is not passed or some form of it is not accepted, there is a real possibility that people who should not be in court and should not be charged by the police may find themselves charged with a criminal offence. That would be absolutely wrong and very bad for our National Health Service.

7 pm

Baroness Thornton (Lab): My Lords, I have a sense of déjà vu facing the Minister on this matter again, along with the two the noble Baronesses who have spoken to the amendments. It would be sensible for any Minister to listen very carefully to the eloquence of the noble Baronesses, Lady Meacher and Lady Finlay, with their expertise and their long record of dealing with these issues, and the concern that they have expressed for doctors and nurses. I agree with both noble Baronesses and with my noble friend about the need to take action about wilful neglect and bad treatment—obviously, absolutely, of course. However, the Minister needs to answer the points that have been put to him about the effect that the measure might have. I would like to know whether some impact assessment has been made on this proposal and, if so, what it said, because I searched in vain for that information. I also searched in vain for information from anyone lobbying on behalf of the badly paid social care workers, who are also included in this legislation, because they do not have the lobby that the doctors and nurses have, in the shape of the two noble Baronesses. I do not apologise for raising this right now, but it makes me wonder whether statutory regulation of social care workers might help in this matter. It is a shame that the Government have consistently set their face against that.

The government amendments in this group seek to add types of care providers to those already identified, and the types of third-party providers who exercise

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education or other children’s services functions on behalf of local authorities. Does that include private adoption agencies, free schools and academies? Who does it seek to cover? Looking at the Bill, I cannot see whether that is the case, or not, and I would be interested to know whether it is.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I thank all noble Lords for their contributions to the debate on these important new offences. I have listened carefully to all four speeches. If I may, I shall start with government Amendments 47, 48, 49 and 50. These are minor and technical amendments, which add additional types of excluded care provider to those already identified in Clause 21, for the purposes of the care provider ill treatment or wilful neglect offence in Clause 20.

The Clause 21 exclusion currently applies to local authorities when exercising their functions in respect of the provision of education and other children’s services and other organisations when exercising social work functions relating to children on behalf of a local authority. It has come to light that a small number of third-party providers might also exercise education or other children’s services functions on behalf of the local authority or instead of the local authority, following a formal direction from the Secretary of State, or, as the case may be, from Welsh Ministers. Clearly, it would be unfair for such provider organisations not to be excluded from the care provider offence to the same extent that the local authority would be if it were exercising the relevant functions itself. Amendments 47 and 48 therefore remove these organisations, to the extent that they are providing those services, from the meaning of a “care provider” for the purposes of Clause 20 in England and Wales.

Amendment 49 makes similar provision in relation to independent agencies that provide adoption support. Those providers that are run by local authorities will already be covered by the exclusion in Clause 21. However, as currently drafted, independent agencies with which a local authority has made arrangements for the provision of adoption support, will not. Amendment 49 corrects this small inconsistency. I hope that that is helpful to the noble Baroness, Lady Thornton. The organisations in question are “registered adoption societies” and “registered adoption support agencies”. Amendment 50 places definitions of these phrases in the Bill. I am sure that noble Lords will agree that it is important to make these changes, to ensure that there is consistency and equity in the application of the care provider offence across organisations. To answer the express question of the noble Baroness, Lady Thornton, who asked whether the exemptions included private adoption agencies, free schools and academies, the answer—as I hope she has gathered from my remarks—is yes.

Amendments 42 and 43A, in the name of the noble Baroness, Lady Meacher, seek to achieve two particular purposes, and try to put the individual care worker offence on a par with the care provider offence. They restructure Clause 19(1) so that the care worker offence is dependent on there having been a gross breach of a duty of care owed by the care worker to the victim of

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the alleged ill treatment or wilful neglect. I understand the point that the amendments seek to make—that there should be some kind of a threshold in order for the offence to bite.

However, there are real problems with the noble Baroness’s approach. We have approached the issue in a different and, I suggest, a better way. The “wilful” element of neglect, and the intent to cause harm required for someone to be found guilty of ill treatment, means that the threshold for this offence as drafted in the Bill is very high and, by its very nature, captures only the worst types of behaviours. Our view is that should a care worker ill treat or wilfully neglect someone in their care, that would always represent a gross breach of a duty of care. It seems to us that a care worker who is being paid to provide healthcare or adult social care services will always owe a duty of care to the individual to whom those services were being provided. That ill treatment or wilful neglect of the individual, which would involve some form of deliberate act or omission, would amount to a gross breach of that duty.

Regretfully, accepting the noble Baroness’s amendments would cause significant unnecessary confusion and complexity and it would risk diverting attention away from the central issue of what has been done by that individual care worker in respect of a person in their care. It would be unhelpful to introduce the concept of a duty of care explicitly. Moreover, specifying that there must be a gross breach of the duty of care in effect raises the threshold before the offence could come into play. There would be a very real risk that behaviour which anyone would recognise as ill treatment or wilful neglect could go unpunished. Any ill treatment or wilful neglect is totally unacceptable, and the care worker offence is drafted very carefully to reflect that. The Government could not accept any amendments that might undermine that and make it harder in practice to prosecute an individual care worker. The approach that we have taken is simpler, clearer and more logical.

The noble Baroness, Lady Meacher, expressed her fear that our proposals might lead to an avalanche of cases and to innocent professionals being “hung out to dry”, as it was put. To address that point, it is important to note that employees of a hospital or a care organisation are already subject to other statutory duties in relation to the care of patients, for example with regard to negligence and to health and safety. The offence that we are proposing would only bite if someone behaves in a way that meets the criteria of the offence—the very worst cases where their behaviour amounts to ill treatment or wilful neglect. We do not share the pessimistic view of the attitudes of health and social care staff that—

Baroness Meacher: Can the noble Earl explain what he means by “will not bite”? He seems to be saying that the doctor or nurse will not be found guilty if they have not indulged in a gross breach of duty, but does the noble Earl accept that these doctors and nurses could easily find themselves under criminal investigation even if they have acted utterly properly and with good faith? That is the issue, rather than the issue of where it bites.

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Earl Howe: I do not accept that at all. There is already a range of possible offences. If a patient, or a member of the family of that patient, raises a complaint about a particular doctor or nurse in relation to patient care, that complaint could be considered under a variety of headings. It would have to be considered and looked into. The complaint is unlikely in the first instance to home in on this particular offence. The investigation would, however, take place. Our view is that it would then be up to the Crown Prosecution Service to see, first, whether anything bad had happened, and if it had, whether it conformed to this offence or to any of the variety of other offences that are already on the statute book. I do not accept that the creation of this offence on its own would compound the problem that the noble Baroness has raised.

I am sure that she would agree that the vast majority of health and social care staff would never dream of deliberately harming or neglecting people in their care, nor would they try to cover it up. I suggest that that fact, if it became apparent in the earlier stages of an investigation, would be compelling in regard to the attitude taken by the prosecuting authorities. It is perhaps of some comfort to the noble Baroness to note that in relation to the Mental Capacity Act and to the Mental Health Act, there is no evidence that large numbers of cases have come forward. She will know that we have framed this offence to align with the way the offences in those Acts are phrased. Individuals are protected from unfounded allegations and, as I have said, the Crown Prosecution Service will not pursue a case unless it is in the public interest to do so. Even if, let us just imagine, a private prosecution were brought, the person accused has the right to refer the case to the Director of Public Prosecutions, who will close the case down if satisfied that the evidential and public interests tests are not met.

I suggest that there is little that either the noble Baroness or I can do to prevent unfounded or vexatious complaints from coming forward. That is a real problem. Often complaints rest on poor communication—she was right to raise that point—but I suggest that this is not relevant to the matter that we are now considering.

7.15 pm

The noble Baroness, Lady Finlay, expressed her strongly held view that the burdens here are being set at different levels for the individual care worker offence and the care provider offence. First, I do not accept that intent is difficult to prove. The courts are used to assessing intent and there are substantial numbers of case law examples on this. The burdens have been set at a similar level but worded differently to reflect the different positions of the care worker and their employer. Proving intent is not part of the care provider offence, as she will have noted. The care provider offence is intended to capture organisational failings, such as failings in supervision and management.

The noble Lord, Lord Winston, cited a distressing and concerning example of what appears to be a failure of proper care of a patient. I find it hard to disagree that some form of failing took place in that instance. As I have already indicated, it is not possible for me, even with the noble Lord’s full description, to venture an opinion as to whether an offence has taken

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place in that instance and, if so, under what particular heading. Technically, the offence could have been committed, but once again the Crown Prosecution Service, if the case is referred to it, would apply a public interest test when deciding whether or not to pursue a prosecution.

I hope that those remarks are helpful and serve to explain why we have taken the approach that we have. I regret that I do see serious complications in the amendments of the noble Baroness. We cannot accept them. I hope that on reflection she will feel able to withdraw Amendment 42 and not press Amendment 43A.

Baroness Barker (LD): I have listened at considerable length to the arguments put by the noble Baroness, Lady Finlay, and I have also discussed the matter in some detail with my friend in another place Paul Burstow, who was responsible for all the research work that went into this. He worked with the main investigators of Mid Staffordshire NHS Foundation Trust and Winterbourne View. I invite the Minister to look at Clause 20(1)(b), which refers to the duties and failures of care providers. I understand where the fears expressed by the noble Baroness, Lady Finlay, come from, but they may be ill founded. The whole purpose and intent behind Clause 20 was to make sure that never again will front-line staff be jailed for the offences that they committed while the senior managers and directors of those organisations walk free, as happened in Mid Staffordshire and at Winterbourne View. All these clauses are exactly designed to ensure that staff are not hung out to dry and have the effect that when complaints are raised against staff—as they frequently are—they will, at last, be able to cite the shortcomings and failings of their employers as background in their own defences. This is a point that needs to be drawn out of this debate.

Earl Howe: My Lords, this is Report stage so I shall be brief, but I am grateful to my noble friend for the point she has made. I understood from the noble Baroness, Lady Meacher, that she was not proposing to speak to Amendments 45 and 46. Nevertheless, the noble Baroness, Lady Finlay, raised a point about the unevenness between the two offences. However, I agree with my noble friend Lady Barker. If we interfere with the wording as drafted in the Bill, we are in serious danger of doing the very opposite of what the noble Baroness, Lady Finlay, seeks, which is to have the two offences broadly on a par with each other.

Baroness Meacher: I thank the Minister for his response. I do not believe that offences for GPs and other doctors involving competent adults are comparable with offences for front-line staff dealing with incapacitated adults or children. The noble Earl indicated that they are somehow comparable, and that because there has not been a swathe of complaints in relation to the earlier offences, we would not get them here. I think we would and that has not been fully dealt with. I recognise what the noble Earl has said—and certainly recognise what Paul Burstow has said—and do not have concerns about Clause 20 in particular, but there are concerns about this. We have not been able fully to deal with matters today and I hope that we can have a

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further discussion with the Minister before Third Reading. I understand the purpose of Third Reading but it is very difficult to feel that we can just leave this here when there are so many ends not tied up at this stage.

Earl Howe: I am sorry to disappoint the noble Baroness but I cannot undertake to agree that the Government’s position will change on this matter.

Baroness Meacher: I understand what the noble Earl is saying but we need to discuss how we take this forward and what we do at Third Reading. With that, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 43A, in substitution for Amendment 43, not moved.

Amendment 44

Moved by Lord Faulks

44: Before Schedule 3, insert the following new Schedule—

ScheduleRecall adjudicators: further provisionMental Health Act 1983 (c. 20)

1 The Mental Health Act 1983 is amended as follows.

2 In section 50(3)(a) (further provisions as to prisoners under sentence: disregarding Parole Board powers when identifying release date), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.

3 (1) Section 74 (restricted patients subject to restriction directions) is amended as follows.

(2) In subsection (5A)(a) and (b), after “Board” (in each place) insert “or a recall adjudicator”.

(3) At the end insert—

“(8) In this section “recall adjudicator” has the meaning given in section 239A of the Criminal Justice Act 2003.”

Criminal Justice Act 2003 (c. 44)

4 The Criminal Justice Act 2003 is amended as follows.

5 Before section 239 insert—

“Parole Board and recall adjudicators”.

6 In section 239(1)(b) (functions of the Parole Board), after “by” insert “or under”.

7 (1) Section 250 (licence conditions) is amended as follows.

(2) In subsection (5A) (inserted by section 14 of this Act), for “Subsection (5B) applies to a licence granted, either on initial release or after recall to prison,” substitute “Subsections (5B) and (5C) apply”.

(3) In subsection (5B) (inserted by section 14 of this Act), at the beginning insert “In the case of a licence granted when the prisoner is initially released,”.

(4) After that subsection insert—

“(5C) In the case of a licence granted when the prisoner is released after recall to prison, the Secretary of State must not—

(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or

(b) vary or cancel any such condition included in the licence,

unless a recall adjudicator directs the Secretary of State to do so.”

8 In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), after “Board” insert “or a recall adjudicator”.

9 In section 268 (interpretation of Chapter 6 of Part 12), at the appropriate place insert—

““recall adjudicator” has the meaning given in section 239A.”

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10 In paragraph 34 of Schedule 20B (licence conditions in certain transitional cases), for sub-paragraph (6) substitute—

“(6) In the case of a Parole Board licence granted when the prisoner is initially released, the Secretary of State must not—

(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or

(b) vary or cancel any such condition,

unless the Board directs the Secretary of State to do so.

(7) In the case of a Parole Board licence granted when the prisoner is released after recall to prison, the Secretary of State must not—

(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or

(b) vary or cancel any such condition,

unless a recall adjudicator directs the Secretary of State to do so.”

11 In paragraph 37(2) of that Schedule (early removal from prison of prisoners liable to removal from United Kingdom in certain transitional cases)—

(a) after “Board” insert “or the recall adjudicator”, and

(b) for “paragraph 6, 15, 25 or 28” substitute “this Chapter”.

Domestic Violence, Crime and Victims Act 2004 (c. 28)

12 In Schedule 9 to the Domestic Violence, Crime and Victims Act 2004 (authorities within the remit of the Commissioner for Victims and Witnesses), after paragraph 26 insert—

“26A A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).”

Offender Management Act 2007 (c. 21)

13 The Offender Management Act is amended as follows.

14 In section 3(7)(a) (arrangements for the provision of probation services: risk of conflict of interests), for “or to the Parole Board for England and Wales” substitute “, to the Parole Board for England and Wales or to a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.

15 In section 14(2) (disclosure of information for offender management purposes), after paragraph (d) insert—

“(da) a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003);”.

Coroners and Justice Act 2009 (c. 25)

16 In section 131(4)(d) of the Coroners and Justice Act 2009 (annual report of Sentencing Council for England and Wales: effect of factors not related to sentencing), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.

Equality Act 2010 (c. 15)

17 In Part 1 of the Schedule 19 to the Equality Act 2010 (public authorities: general), after the entry for the Parole Board for England and Wales insert—

“A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).””

Amendment 44 agreed.

Clause 20: Ill treatment or wilful neglect: care provider offence

Amendments 45 and 46 not moved.

Clause 21: Care provider offence: excluded care providers

Amendments 47 to 50

Moved by Lord Faulks

47: Clause 21, page 20, line 34, at end insert—

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“( ) A person is not a care provider for the purposes of section 20 to the extent that the person carries out a function of a local authority in England mentioned in subsection (1) in respect of which either of the following has effect—

(a) a direction under section 15(6)(a) of the Local Government Act 1999 (power of Secretary of State to direct functions of a best value authority to be carried out by another person);

(b) a direction under section 497A(4) or (4A) of the Education Act 1996 (power of Secretary of State to direct certain functions to be carried out by another person).”

48: Clause 21, page 21, line 3, at end insert—

“( ) A person is not a care provider for the purposes of section 20 to the extent that the person carries out a function of a local authority in Wales mentioned in subsection (3) in respect of which any of the following has effect—

(a) a direction under section 29(6)(a) of the Local Government (Wales) Measure 2009 (nawm 2) (power of Welsh Ministers to direct certain functions of a Welsh improvement authority to be carried out by another person);

(b) a direction under section 25 or 26 of the School Standards and Organisation (Wales) Act 2013 (anaw 1) (powers of Welsh Ministers to direct education functions to be carried out by another person);

(c) a direction under section 154 or 155 of the Social Services and Well-Being (Wales) Act 2014 (anaw 4) (powers of Welsh Ministers to direct social services functions to be carried out by another person).”

49: Clause 21, page 21, line 3, at end insert—

“( ) A registered adoption society or registered adoption support agency is not a care provider for the purposes of section 20 to the extent that it provides adoption support services (as defined in section 2(6) of the Adoption and Children Act 2002).”

50: Clause 21, page 21, line 11, at end insert—

““registered adoption society” means an adoption society (as defined in section 2 of the Adoption and Children Act 2002) which is a voluntary organisation (as defined in that section) and in respect of which a person is registered under Part 2 of the Care Standards Act 2000;

“registered adoption support agency” means an adoption support agency (as defined in section 8 of the Adoption and Children Act 2002) in respect of which a person is registered under Part 2 of the Care Standards Act 2000.”

Amendments 47 to 50 agreed.

Amendment 51

Moved by Lord Beecham

51: Before Clause 25, insert the following new Clause—

“Identity theft

After section 9 of the Fraud Act 2006 (possession etc. of articles for use in frauds) insert—

“9A Identity theft

(1) A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person.

(2) A person who is guilty of identity theft is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both).

(3) The Secretary of State may by regulations set out what constitutes a defence under this section.””

Lord Beecham: My Lords, Amendment 51 relates to identity theft, which is a growing problem, particularly in this age of cybercrime. It is rising rapidly and is estimated to cost more than £3 billion a year. It is usually referred to in the context of fraud and economic

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crime but, as I said in Committee, a number of offences could apply to the use of someone else’s identity; for example, those under the Fraud Act 2006, the Forgery and Counterfeiting Act 1981, the Criminal Justice Act 1987 and the Theft Act. As the Minister said in Committee, these relate to the use of a false identity for fraud purposes. For example, Section 2 of the 2006 Act deals with the crime of fraud by false representation. In the Minister’s words, this would,

“cover a person pretending to be someone else for the purposes of making a gain for himself or another”.—[

Official Report

, 14/7/14; col. 485.]

However, the motive might not be economic gain; it might be to obtain information for personal reasons or in the course of undercover activities, such as some of those that have featured in industrial disputes or civil liberties and environmental campaigns. There is also the kind that I saw demonstrated in a remarkable one-man show at the Edinburgh Festival by the stand-up comedian—if that is not too limited a description—Mark Thomas. He had been working for an environmental campaign and someone attached himself to it—not an undercover policeman in this case but an undercover person employed by someone else. It took a long time for this chap to be exposed but exposed he was. He had used a false identity to become involved in the organisation.

In Committee, the Minister criticised the amendment on the grounds that it would also apply to innocent persons; for example, people who collect a parcel from the post office using a relative’s identification. That is a little far-fetched. It ignores the unlikelihood of anyone being charged with an offence in such circumstances and, perhaps more relevantly, the explicit provision contained in the amendment empowering the Secretary of State to set out in regulations what would constitute a defence to a charge under the proposed new section.

In fairness, the Minister outlined a range of initiatives being pursued by a variety of bodies and this is welcome, although it is unclear how co-ordinated the activity is. However, given the very serious concerns about fraud and infractions of privacy, it is surely time to consolidate and update the legislation. I suggested that it would be helpful to hear a report on progress in this area before Report, and it is disappointing that this has not occurred. I request that the Minister takes another look at the issue to see whether he can come back at Third Reading with a more helpful resolution to the problem. For the avoidance of doubt, I assure him that the amendment is not designed to protect Nigel Farage and UKIP from identity theft at the hands of David Cameron and the Conservative Party. I beg to move.

Lord Faulks: My Lords, the Government recognise that there are significant challenges in dealing with the many consequences of identity theft. However, as I explained in Committee, these challenges relate to the difficulty of identifying and catching offenders, rather than to any lack in the criminal law.

The proposed amendment suggests:

“A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person”.

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It omits any reference to the consent of that other person and proposed new subsection (3) leaves the defence to be made by regulations set out by the Secretary of State. That is a fairly novel proposal: a Secretary of State who does not enjoy the undivided confidence of the party opposite is being asked to set out in regulations the nature of the defence.

Lord Beecham: Perhaps it might be a job for the Minister.

Lord Faulks: I am flattered by the suggestion. However, whether it is done by me, an official or anyone else, it is a slightly strange way of formulating an offence.

I respectfully ask: where is the gap? The Fraud Act 2006 already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purpose of making a gain for himself or another.

While identity theft is not in itself a criminal offence, the use of a false identity for the purposes of fraud is. As drafted, the amendment would apply to innocent persons who were able to represent a relative or partner when conducting financial or domestic affairs on their behalf with permission from the identity-holder. The noble Lord cast some scorn on the example I gave in Committee of collecting a parcel on behalf of someone else. I accept that no sane prosecutor or police officer would take that matter further. None the less, it is alarming to think that that could constitute a criminal offence, albeit one that one would not expect the police or the prosecution to pursue.

I assure the House that the Government take identity crime extremely seriously. I should like to remind the House of some of the initiatives being pursued to prevent identity crime. We are working with banks and credit card companies to promote technical solutions to identity theft to help the victims of such crimes. We are also working with credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Call Credit. The Home Office is also leading a multi-agency strategic group formed to reduce the threat to the UK. The group is engaged in a range of activities to tackle the problem, such as strengthening the issuing process for government documents, tackling the supply of specialist printing equipment for criminal purposes, improving data-sharing of false identities and taking down websites offering false documents for sale.

7.30 pm

There is also a national policing identity crime champion. The City of London Police is leading this work and is currently developing an identity crime strategic threat assessment, working closely with the National Crime Agency. We also want to learn more about the scale of this issue, and identity crime trends over time, through the Crime Survey for England and

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Wales. This is particularly important given rapid developments in technology. We therefore conclude that the current legal framework is sufficient to deal with the theft and fraudulent use of identity. Of course, we bear in mind that things change rapidly. Many of the factors drawn to the House’s attention by the noble Lord, Lord Beecham, will be part of the analysis that takes place. Although these issues continue to be addressed, I specifically do not undertake to bring back this matter at Third Reading, or to entertain that it should be. We suggest, for the reasons I have given, that there is no case at the moment for the creation of a new offence, and therefore I ask that the amendment be withdrawn.

Lord Beecham: My Lords, I had rather anticipated that disappointing response. Again, the Minister has concentrated entirely on the issue of fraud. The problem goes beyond that and into other areas of life. Frankly, some of the arguments he deployed were perfectly capable of being dealt with in properly drafted legislation and I am disappointed that he cannot see a case to answer on those matters. However, as it is clear that the Government are not going to be co-operative on this, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

Clause 25: Corrupt or other improper exercise of police powers and privileges

Amendment 52

Moved by Lord Faulks

52: Clause 25, page 23, line 7, after “constable” insert “listed in subsection (3)”

Lord Faulks: My Lords, I will speak also to Amendments 53 to 56, 58 and 59. Amendments 52 to 55, 58, 59 and 185 reflect discussions on the territorial extent of the offence within both the UK Government and the devolved Administrations. Amendment 56 is a minor technical amendment to ensure that the director-general of the National Crime Agency is included among the categories of person to whom the offence applies.

I shall deal, first, with Amendment 56. As Clause 25 currently stands, the offence extends to all NCA officers who are designated by its director-general as having the powers and privileges of a constable. However, the director-general can also be designated with those powers and privileges by the Secretary of State. To ensure that the director-general is also covered by the offence, Amendment 56 therefore provides that any NCA officer designated as having the powers and privileges of a constable, whoever designates them, will be within the scope of the new offence.

The remaining government amendments in this group would extend the offence to cover the whole of the United Kingdom. The offence will not apply to the officers of either Police Scotland or the Police Service of Northern Ireland, responsibility for which is devolved to the Scottish Parliament and the Northern Ireland Assembly. However, the devolved Administrations are content for us to extend the geographical coverage so that officers of English and Welsh forces, the national

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forces, as well as the officers of the National Crime Agency who are designated with police powers, are subject to the new offence throughout the UK, including territorial waters—in effect, wherever they operate.

I should at this point address the issue of devolution. The national police forces are the reserved responsibility of the UK Government, wherever they operate, as are the 43 police forces of England and Wales. There is therefore no need to seek legislative consent in respect of officers of these forces. The position of the National Crime Agency is more complex. While the agency’s director-general is accountable to the Home Secretary, there are, in relation to oversight, various responsibilities of Ministers in Edinburgh and Belfast. This reflects the position that the agency operates in devolved, as well as non-devolved, areas.

The Scottish Government have sought the legislative consent of the Scottish Parliament for these amendments. The Justice Committee of the Scottish Parliament has recommended that the legislative consent Motion should be agreed, which is due to happen next week. While I have no reason to believe that that will not happen, in accordance with convention I undertake that, should consent be refused, I will bring forward appropriate amendments at Third Reading.

The position in Northern Ireland is less straightforward. At present, NCA officers do not have police powers in Northern Ireland. However, we remain hopeful that agreement can be reached to confer police powers on NCA officers in Northern Ireland. Therefore, with the agreement of the Executive, we consider it prudent to provide that the offence will extend to NCA officers when they receive police powers in Northern Ireland.

Schedule 24 to the Crime and Courts Act 2013 sets out the mechanism to confer additional functions and powers on the NCA and its officers in Northern Ireland and requires the explicit agreement of the Northern Ireland Assembly. The Northern Ireland Executive are content that, if and when an order is made under Schedule 24, the application of the new offence, as an additional safeguard, will be regarded as an ancillary matter and will not require explicit consent. However, this is a technical area and we are still in discussion with the Northern Ireland Executive on the detail, so we may need to table clarificatory amendments at Third Reading.

Amendments 52 to 56, 58, 59 and 185 will ensure that all the officers of the national forces and those of forces in England and Wales are covered by the offence anywhere in the UK. Officers of the National Crime Agency designated with police powers will also be covered by the offence within the limits of their designations. For those reasons, I beg to move.

Lord Kennedy of Southwark: My Lords, it is important that we put on record how much we support the police service. We are very lucky to have those dedicated men and women who go to work to keep us all safe. They deserve our support at all times, and we must be seen to give them that support. We are not opposing these amendments today. At the Committee stage of the Bill I confirmed the Opposition’s support for the clause. Police officers exercise great power and carry great responsibility. Where that is exercised improperly there can be

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tremendous consequences for the individuals concerned. Police corruption can never be tolerated and everything must be done to root it out.

The noble Lords, Lord Blair, Lord Condon, Lord Dear and Lord Paddick—all distinguished former senior police officers—raised concerns about this clause at Committee stage and questioned the gap it is seeking to plug. It would be useful if the noble Lord could confirm that this has nothing to do with the “plebgate” scandal. Further, can he tell the House what has happened since we last discussed this clause? I certainly raised, as I think did others, the question of consultation between the police service, the Police Federation, other associations and distinguished noble Lords. We must be seen to get the balance right here. People raised concerns about the clause and I hope that the Government have listened and can give us some comfort in their response.

Lord Faulks: I think I understand the queries of the noble Lord, Lord Kennedy, to be focused not so much on these specific amendments but rather on a more general concern expressed by various Members, principally former police officers, about the need for, and scope of, this offence. I think I can recall that meetings took place attended by the noble Lord, Lord Blair, and the then Home Office Minister, my noble friend Lord Taylor, in which there were discussions about the need for this offence and the Government’s thinking behind it.

This is not—I mention this because the noble Lord referred to it—a specific response to “plebgate”, the full details of which have still not been revealed. This is rather the Government’s response to the sad fact that there has been corruption in the police force, and, as he so rightly says, we expect, and for the most part receive, very high standards from the police. None the less, the Government think it is important that we set out a specific offence. The old offence of misconduct in public office has been in existence for many years. It is apt to cover most criminal behaviour but we consider it appropriate, in all the circumstances, to set out in a specific statutory form this offence of police corruption. I hope that prosecutions will very rarely have to rely on it but it exists, so I hope that in those circumstances the noble Lord accepts the Government’s approach to this as a whole.

Amendment 52 agreed.

Amendments 53 to 56

Moved by Lord Faulks

53: Clause 25, page 23, leave out line 13 and insert—

“(3) The police constables referred to in subsection (1) are—”

54: Clause 25, page 23, line 14, at end insert “in England and Wales”

55: Clause 25, page 23, line 15, at end insert “in England and Wales”

56: Clause 25, page 23, line 19, leave out from “designated” to “as” in line 20 and insert “under section 9 or 10 of the Crime and Courts Act 2013”

Amendments 53 to 56 agreed.

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Amendment 57

Moved by The Earl of Lytton

57: Clause 25, page 23, line 21, at end insert—

“( ) For the purposes of this section, “police constable” also includes any person who is an employee or agent or acting under the authority of a constable (including in a supporting role), or is performing any function that would, if performed by a constable, fall within policing duties.”

The Earl of Lytton (CB): My Lords, at Second Reading I queried whether we did not have laws enough to deal with police corruption and other noble Lords asked, “Why single out the police for this new offence?”. The Minister has answered some of those points but this is a slightly different question: will Clause 25 work anyway? I must straightaway thank the parliamentary clerks for their advice and assistance in trying to knock the wording of this amendment into shape, and I thank others outside the House who have offered comment. I am extremely grateful to the Minister and his Bill team for contacting me last week to discuss my concerns. However, on my reading of the Bill it is far from clear that Clause 25 would catch anyone or deal with the more serious cases. Indeed, the excuse “It was not me, it was that other person over there” seems an obvious get-out.

There are several categories of non-warranted persons who might be acting qua police: PCSOs, police volunteers, contractors and civilians working in administrative, intelligence or custody suite roles. I am not clear about probation officers but doubtless there are many other categories. These do not appear to be covered by Clause 25. In my view, such as it is—I am not a lawyer or necessarily an expert here—police corruption can sometimes be, but in reality seldom is, a completely solitary activity. In some more serious instances, it involves other agencies such as the Crown Prosecution Service, local authorities or the health service. Among the characteristics of performance management, an absence of leadership and the collectivisation of risk and responsibility are two. So the target for any charge of police corruption is potentially formless, impersonal and uncertain. By its very nature it is also covert, so in all probability few signs or fingerprints, if I may use that term, will show up. All that a victim of this process knows is that there is no justice; a collective cover-up is all that they see.

Before the Recess, I sent to the Minister’s then colleague at the Home Office, who is now our esteemed Chief Whip, a series of documents which had been put forward in a particular case as witness statements. I did not ask for comment on their specifics, because the case is ongoing, but drew attention to the public interest aspects that they raised. There is the fact that a custody record had been altered post hoc to include a gratuitous reference to violence; apparently there are two custody statements. A prosecution witness statement had apparently been altered without the knowledge of the witness concerned to include additional damning points relating to the accused. Digital photographic evidence had also been manipulated to show times and dates at variance with the facts. There were other aberrations but over recent months I have come across a number of similar instances.

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Some of this stems from seemingly unchallengeable powers, such as those in the areas of antisocial behaviour, but there have been clear instances of making up for evidential deficiencies by invention. We also now know of large-scale documented corruption where information inconvenient to the police version of events has been suppressed, mislaid or deliberately destroyed. Few, if any, responsible officers seem to have suffered significant consequences and if Clause 25 is aimed at remedying that, I support the aim. I particularly have in mind that those clearly implicated in corrupt acts should not automatically be able to escape to a comfortable retirement, leaving the lives of others in complete ruins.

7.45 pm

The typical long-stop response of the police when cornered by a line of questioning is to claim that it is an operational matter. Operations versus policy has been a focus of the Government in separating the College of Policing from the Association of Chief Police Officers, but it must be obvious to everyone that in any conflict of these purposes at the sharp end of policing, operations must always hold the trump card—and that trump card remains firmly in the control of the police, not of the College of Policing. Moreover, the very long-standing understandings that police operations would not be subject to political interference seems to have morphed in modern times into an absence of any oversight and accountability over operational matters.

My amendment is intended to take one small step towards addressing these issues. It seeks to ensure that where there is what Professor Tim Hope of Salford University, in an e-mail to me, referred to as “joint enterprise”—in other words, a collective endeavour amounting to corrupt practice under police auspices—more of the relevant perpetrators and participants would be at risk of prosecution. In the Bill, I cannot extend the provision to other agencies operating right outside policing, although there are potent reasons in terms of victim focus why these, too, should be covered in some way. My intent is to encompass those who hold themselves out to be exercising the powers of, or derived from or in collaboration with, a policing operation and claiming authority from a police initiative. I believe that policing is too important and the majority of warranted officers too precious a resource to allow the current situation, which is ongoing and has led to many high-profile scandals, to continue.

There is another matter. Can the Minister confirm that after the enactment of this Bill, and assuming that Clause 25 remains intact, we will not thereafter find that corrupt acts which occurred prior to the commencement of the Act are simply airbrushed from history so that those who perpetrated them effectively walk away from the results of their efforts?

My focus is on the prevention of injustices and the rights of innocent victims of corruptly implemented process. The method that I have adopted is to throw the net of police corruption wider than is drafted in Clause 25. The amendment is entirely of my own volition and its wording is fundamentally my own. It is, I hope, self-evident in intent—but if it is defective, I take sole responsibility for it. I beg to move.

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Lord Kennedy of Southwark: My Lords, I will be very quick. The amendment in the name of the noble Earl, Lord Lytton, seems very sensible. If a new offence applies to police officers, it should apply to those acting under the authority of a constable or performing a duty that would normally be provided by a constable and falls within the term “policing”. The House should be very grateful to the noble Earl for spotting the potential loophole that his amendment is an attempt to close. I hope that the noble Lord, Lord Faulks, is able to support the amendment—but, if he is not, I hope that he will be able to give us a detailed reasoning of why the Government do not think that it is necessary, as the noble Earl made a convincing case.

Lord Faulks: My Lords, I, too, am grateful to the noble Earl for bringing these matters to the attention of the House and for telling us specifically about the incidents to which he has drawn the attention of the Home Office—although he will, of course, understand, as I think he accepted during his remarks, that I cannot comment on specific cases. However, by using a specific case, he raises a wider concern about the fact that it is not specifically and exclusively police officers who may be involved in what might loosely be described as corruption.

Before dealing with the amendment in a little more detail, I will reassure the noble Earl that although the new offence in its current scope is not retrospective, existing laws will continue to apply to any behaviour before the commencement date of the Act. The question of corruption remains a considerable concern of police forces and prosecuting authorities—and the police, sadly, are used to dealing with it. In the next few weeks, Her Majesty’s Inspectorate of Constabulary will publish a report on anti-corruption capability—so there is an awareness of the need to ensure that this matter is well and truly a focus of its intention.

At Second Reading and in answer to the noble Lord, Lord Kennedy, in the context of the earlier amendment, I said that the offence in the Bill has been brought forward in response to particular issues of corruption that have occurred in the past among police officers—some of senior rank—not all of which are capable of being pursued under the common law. This offence would allow such cases to be addressed. It is something of an irony that senior police officers opposed the introduction of the offence on the basis that it was unnecessary. The noble Earl takes the opposite view: namely, that the offence should be extended beyond the scope which it currently has to include those who are enmeshed in the whole process of corruption. He is right that agencies do not act alone. They are best when they act together in a concerted way. It is very unfortunate if they act in a concerted way that is also corrupt.

Sadly, I am sure that there have been cases of police staff and other public officials corruptly accessing sensitive information or seeking to disrupt investigations by manipulating IT systems. However, the Government have taken the view that it is imperative at this time to address corruption among police officers. Other public officials, including police staff, remain subject to the common-law offence of misconduct in public

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office, to which I made reference earlier. There have been high-profile prosecutions for the common-law offence in recent months in connection with selling information to the press, including of prison officers, military personnel and police officers. I reassure the noble Earl that we are dealing with corruption across the board.

I should also point out that the Law Commission is starting a project to examine the broader issue of misconduct by public officials, including the misuse of sensitive official information. That, I suggest, is the proper place to look at misconduct and corruption in other areas of public service. I encourage the noble Earl to raise his concerns with the commission when it publishes its consultation document early next year. I also say to the noble Earl and to the House that the amendment would greatly extend the reach of the new offence to a group of individuals who may not have received any specific training of the type that one would expect and may not be clear that they fall within the definition he proposes, and for whom there is no public clamour for a specific anti-corruption offence in the same way that we believe there is for police officers.

I make no criticism of the noble Earl’s drafting. His intention is perfectly clear. But we believe that, notwithstanding the continued anxiety we all face to eradicate corruption wherever it is found, it would be unwise to agree such a broad amendment at such a late stage of a Bill without an opportunity to consult with police representative bodies or the wider public. Therefore, I thank the noble Earl but nevertheless ask him to withdraw his amendment.

The Earl of Lytton: My Lords, I thank the Minister for that extensive reply and the noble Lord, Lord Kennedy, for the support in principle for what I have been trying to deal with. The Minister covered a number of areas reasonably satisfactorily—although, in suggesting that my amendment covered too wide a category of others, he failed to address the issue of PCSOs who, after all, are to all intents and purposes to most people in the street wearing a uniform and are under the pay and authority of the chief constable. While I thank him for that, I will reflect on what he has said. I also reserve my position and may return to this matter at a later stage in order to see whether some other “near-police personnel”, as I call them, who are not warranted officers, should not be included in this provision. That said, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 and 59

Moved by Lord Faulks

58: Clause 25, page 24, line 5, leave out “England and Wales or in the adjacent” and insert “the United Kingdom or in”

59: Clause 25, page 24, line 15, at end insert “in England and Wales or Northern Ireland”

Amendments 58 and 59 agreed.

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Clause 27: Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over

Amendment 60

Moved by Lord Marks of Henley-on-Thames

60: Clause 27, page 24, line 35, leave out “16” and insert “18”

Lord Marks of Henley-on-Thames: My Lords, our amendments in this group on Clause 27 regarding compulsory custodial sentences for second offences of possession of a knife would have three effects. The first, and by far the most important, would be to exclude 16 and 17 year-olds from the ambit of the compulsory custodial sentences proposed in the clause. The second would be to ensure that the circumstances the court might take into account in deciding not to impose a custodial sentence would include the likely impact of the sentence on the offender. The third would be to ensure that those circumstances would include not only the circumstances of the offence for which the offender was being sentenced at the time he came before the court, but also the circumstances of the previous conviction that brought him or her within ambit of the clause in the first place.

I turn first to the amendments excluding 16 and 17 year-olds from the operation of the compulsory sentence regime. Your Lordships will no doubt remember that in Committee this House declined to remove the whole of this clause under my stand part debate, but by a fairly narrow margin, considering that the Conservative and Labour parties whipped their Back-Benchers in favour of the retention of the clause, notwithstanding that the Government Front Bench abstained. It was nevertheless abundantly clear from the debate that there was a very strong feeling in this House that compulsory sentences for children were undesirable and damaging to the children concerned.

I should remind your Lordships that this clause was not and is not government policy. It was introduced in the House of Commons by the Conservative Back-Bencher my honourable friend Mr Nick de Bois, and carried in that House. That is how it came to be included in this Bill, notwithstanding the opposition of the Liberal Democrat Benches.

On Report, the House has before it in the next group amendments in the names of the noble Baronesses, Lady Browning and Lady Berridge, which would oblige courts to have regard to their duty under Section 44 of the Children and Young Persons Act 1933 when implementing this clause. That would mean that a court would have to have regard in every case to,

“the welfare of the child or young person”,

and would be required “in a proper case” to,

“take steps for removing him from undesirable surroundings and for securing that proper provision is made for his education and training”.

8 pm

All the professional evidence is that the welfare of children and young people is not served by passing short custodial sentences upon them. There may be many cases where such custodial sentences are unavoidable

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in view of the gravity of the offence and the need for the protection of the public, but they should be a last resort. The contention that any purpose would be served by making such sentences compulsory and removing judicial discretion in relation to sentences for 16 and 17 year-olds is both entirely unfounded and, I suggest, in direct contradiction with the statutory requirement, which I just read, that the sentencing court must have regard to the young person’s welfare.

To summarise the evidence, which was well rehearsed on the previous occasion, custodial sentences are particularly damaging for children, particularly short custodial sentences. They tend to entrench children in a life of crime. They disrupt children’s education and family lives. There is no evidence that they deter children from further offending. The reoffending rates for custodial sentences are extremely high; 69% of children released from custody in the past year who were counted reoffended within 12 months.

To impose compulsory custodial sentences for children would be a severely retrograde step. One of the great achievements of this Government within the criminal justice system has been to reduce the number of children and young offenders within the secure estate to below 1,100. The prediction is that without this clause the number of children in custody will continue to fall, and it is expected to be below 1,000 by Christmas. A relatively simple calculation of those convictions that currently are not met with custodial sentences, but that would be so met if this clause as it stands were enacted, shows that the clause would be likely to lead to an additional 200 children being sentenced to custody every year if it is not amended as I suggest. At a stroke, the achievement of this Government that I have just mentioned would be reversed, and we would see more and more children in custody every year.

Furthermore, this is a very expensive proposal. The annual cost of children in custody varies between £100,000 and £200,000, depending on the institution where they serve their sentences. However, that is not the only cost. If I am right in maintaining that child reoffending will increase as a result of this clause, and there is a great deal of evidence to support that, the cost to the criminal justice system and the penal system will be substantially greater than the cost of implementing these compulsory sentences alone.

I made the point in Committee that compulsory custodial sentences for children and young people for the possession of knives would discriminate against black people, particularly black young men. This is because ethnic-minority young people are disproportionately subjected to the use of stop-and-search powers. I mentioned the evidence that black men were six times more likely to be subjected to stop and search than white men. The vast majority of prosecutions for the possession of knives arise out of the use of stop-and-search powers, and those powers are extensively used against young men. So it is that the sense of alienation and injustice that fuels so much resentment within the black communities of our cities could be dangerously aggravated by the effects of this clause.

Convictions for knife possession have fallen, faster for children than for adults. Courts have the power to pass custodial sentences for the possession of knives

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where such sentences are appropriate, and would continue to have that power even if this amendment were passed. However, the amendment is designed to ensure that in those cases where a court would not otherwise pass a custodial sentence on a young offender, the judge would not be required by Parliament to do so against his or her better judgment.

I turn to the second purpose of our amendments. As the clause stands, the court can form the opinion that there are particular circumstances that relate to the offence or to the offender, and refrain from imposing a custodial sentence if those circumstances would make it just to do so. However, with the clause as drafted, the court would not be permitted to take into account the likely impact of the offence on the offender, and that is plainly wrong. I say that it runs contrary to the principles set out in the section of the Children and Young Persons Act that I mentioned earlier, and it ignores one of the cardinal principles of criminal justice for young people.

The third and last purpose of our amendments is to ensure that the courts can consider not only the circumstances of the offence for which the offender is before the court, but the circumstances of the previous conviction that would render the defendant at risk of custody by reason of this clause. It is obvious that where a second offence is committed so that the clause bites, it would be relevant that the first offence was trivial or explicable in a way that would militate against the compulsory imposition of a custodial sentence.

This House has traditionally taken an enlightened view of youth justice but this is not an enlightened clause. The inclusion of 16 and 17 year-olds within its application is entirely unenlightened; it is populist and counter to all the evidence. I beg to move.

Baroness Berridge (Con): My Lords, I shall speak briefly on the amendment proposed by my noble friend Lord Marks. First, on a point of agreement, he will have seen that under Amendment 65 in my name and that of my noble friend Lady Browning it would of course be possible for the court to take into account the circumstances of the previous offence that was what I will call the “trigger” for this provision. Those circumstances could be taken into account.

With regard to the second point, we outlined in Committee that under new Section (6B) in Clause 27(4) there is a judicial discretion not to impose a mandatory sentence unless there are particular circumstances that relate to the offence, the offender or the previous offence and it would be unjust to do so in the circumstances. I would be interested to know the Minister’s opinion on whether the likely impact on the child of the offence would be included in the consideration of the welfare of the child, which is part of the other amendments that my noble friend and I have tabled.

In relation to a third point, the imposition of a mandatory requirement on young people aged 16 and 17—

Lord Marks of Henley-on-Thames: Before my noble friend gets on to her third point regarding 16 and 17 year-olds, may I just ask her whether she was saying

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in her previous remarks that if it is the case that the likely impact of the offence is not caught within the phrase,

“the circumstances of the offender”,

she will therefore support that amendment of mine?

Baroness Berridge: No. In relation to the likely impact, my point was whether that is considered under the requirement in the Children and Young Persons Act to take into account the welfare of the child.

With regard to 16 and 17 year-olds, it is already the position that they are covered under the mandatory sentencing provisions if they are convicted twice of the offence of threatening with a knife, so it would be inconsistent not to include 16 and 17 year-olds under these provisions where there will be mandatory provisions when you are twice convicted of the offence of the possession of a knife.

I understand that there is not a clear age of majority in this country, but when you can marry and join the Army at age 16, if you have been found in possession of a knife and convicted of that offence and then been found in possession of a knife again by the time you are 17, I do not think it is unduly harsh to say to those young people that a prison sentence is to be imposed unless the provisions of proposed new Section (6B) are found to apply by the judge.

Finally, in relation to the disproportionality issue for black and ethnic minority young people which I have mentioned previously in your Lordships’ House, it is clear that it is also the case that those young people are disproportionately the victims of knife crime. If one is going to plead disproportionality, one has to look not only at offenders but also at victims. The use of knives on young black people—particularly men—is an issue of grave concern in that community, so one has to look at both sides of that issue and not just at the disproportionality of offenders.

Lord Carlile of Berriew: My Lords, I speak in support of my noble friend Lord Marks and will make two points. First, over recent years, I have been involved in a lot of work and study about the treatment of young offenders, partly during the time I spent as president of the Howard League for Penal Reform and partly in preparing reports requested by others. One of the givens of studies of youth penalties—of youth sentencing—is that short sentences by and large are not beneficial: they are usually destructive. They destroy ties with education, they damage ties with family, and they remove ties with good friends as well as, of course, bad friends. This has been recognised by the Youth Justice Board. One of the reasons for the reduction in the number of children in custody, as mentioned by my noble friend Lord Marks, is that it has been seen by the courts that non-custodial dispositions, on the whole, are far more constructive.

That leads me to my second point, which is about judicial—or court—discretion. I do not want to dress this up too grandly, because most of the group we are talking about appear before a youth court in their own local areas, and there is much about youth courts that needs to be reformed. That said, whenever a case comes before a youth court, the court hears all the

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facts about the young person concerned. It hears the facts of the case; if the defence is properly prepared, it hears about the young person concerned and about everything that has happened in their past. Many of those children who appear before courts—there is no difference in this regard between 16 and 17 year-olds and the immediately younger age group—come from very deprived backgrounds. They usually have had very little attention paid to them and more than half of them have at least one mental health issue—some have multiple mental health issues—that needs to be addressed. To deprive an experienced court of the discretion to impose a non-custodial sentence when that might fly in the face of the merits as set out in the facts and reports before the court is really an astounding proposition. I challenge the Minister to produce any empirical evidence—any studies— showing that this is a proposal that is justified on the merits. I urge him to accept that it is an error of judgment to include 16 and 17 year-olds in this provision.

8.15 pm

The Earl of Listowel (CB): My Lords, I support the amendment of the noble Lord, Lord Marks. Before doing so, I join in his tribute to the Government for their achievement in reducing the numbers of young people in custody by 2,000 in the past few years. It is a tremendous achievement. In some ways, I regret having to disagree with the Government on this particular point, because, of course, I would like to support a Government who have achieved so much for the welfare of the kind of young people that we are dealing with here.

I listened with interest to what the noble Baroness, Lady Berridge, said about young black men—that they are more likely to be victims of knife crimes themselves— and her concern about that aspect of the issue. It is a difficult question. Obviously, young people who carry knives around are a threat to themselves and to other young men. They are likely either to get knifed themselves because somebody else sees that they have a knife or to harm somebody else with a knife. On the other hand, there has been a growth in gang culture, a transformation in gang culture. One can see this when visiting young offender institutions. Many young people might be in great fear for their lives. Perhaps one reason why some of them might continue to carry a knife, even though they have been convicted of having one before, is that they have a genuine fear that somebody else is going to attack them with a knife.

The noble Baroness, Lady Berridge, said that 16 and 17 year-olds can get married and join the Army. That is a good point. But I think we need to keep in mind what the noble Lord, Lord Carlile, said about the particular nature of the young people who come before the courts in these circumstances. We might need to bring up the issue of developmental delay affecting children who have experienced a long history of trauma, who have grown up in chaotic or insecure families, who might have been traumatised in various ways over a long period of time, who might have been let down by the people whom they most trusted, or who, when they have been betrayed in that way, have had no one

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to listen to them or try to help them recognise the trauma that they have experienced. Young people like that might experience a developmental delay, so that they might appear to be a normal 16 or 17 year-olds physically, but in their way of seeing the world, in their inner world, they are actually much more immature.

I particularly draw attention to the question of young people who have been in local authority care and of care leavers. On Friday, a clinical psychologist was speaking to the Institute of Recovery from Childhood Trauma. She was describing these children who have a history similar to the one I just described and the way that they will often become very self-reliant. They believe that they have to do everything for themselves and they are distrustful of people in authority. Therefore one can see a young person in care, or a care-leaver—I am talking about probably a small minority—who, if they are told by a policeman or a court that they must not carry a knife, will respond to that authority by saying, “Well, I’ll do exactly the opposite of what you’re telling me”. Their history of being abused by others may make them particularly fearful. It may seem to them particularly rational to protect themselves, to be self-reliant—to carry their own weaponry. Their experience is of a world that is unkind and which attacks them. Therefore I would be grateful to the Minister if in his reply, or perhaps afterwards, he could say whether particular attention will be paid to children in care and young people leaving care to ensure that they are offered, at least on a second conviction, the opportunity to have a mentor, for instance, or peer-mentoring, or some other diversion, which might make a great difference to them, rather than putting them into custody.

My final point is that, thanks to the Government’s great achievement in reducing the numbers of children in custody, custody for children is now a much more difficult experience in many ways. All the rotten eggs, if you like, are in one basket, and that can be a very tough environment. We are sending these young people into what is possibly a very adverse environment. I strongly support the amendment in the name of the noble Lord, Lord Marks, and I hope that your Lordships will accept it.

Lord Paddick (LD): My Lords, I rise briefly in support of my noble friend Lord Marks’s amendment. In particular, I will address what has been suggested is an inconsistency, in that 16 and 17 year-olds who use knives to threaten people are subject to mandatory imprisonment, whereas this would be inconsistent with 16 and 17 year-olds being excluded from mandatory imprisonment for possession. However, there are circumstances, in particular where older young men pass weapons—particularly when faced with an oncoming police officer—to younger members of the group, who are intimidated into taking possession of those weapons. Therefore, they could in those circumstances be carrying a knife innocently, as it were. As my noble friend said, if those are the circumstances of the original or even the secondary offence, those individuals should not be subject to mandatory imprisonment.

Lord Kennedy of Southwark: My Lords, the amendment in the name of the noble Lord, Lord Marks of Henley-on-Thames, seeks to take out 16 and 17 year-olds from

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the scope of a mandatory custodial sentence for possession of a knife in a public place. I have considerable respect for the noble Lord and a good deal of sympathy for what he is trying to achieve. However, if he pushes this to a vote today, I will not support him in the Division Lobby.

As the noble Baroness, Lady Berridge, said, there is already provision in the Bill as it stands for the court to show some discretion if it is of the opinion that there are particular circumstances which relate to the offence and which would make it unjust to do so in all the circumstances. However, as the noble Lord, Lord Marks, said, this provision was put into the Bill during its passage through the Commons by the honourable Member for Enfield North, and technically it was not a government amendment. Perhaps that was not the easiest way to have done this. However, I see the deterrent effect of such provisions and I am not convinced that removing all 16 and 17 year-olds from the scope of this would be helpful.

I am well aware that knife crime is falling, and I want that to continue. However, there are also parts of London where this sort of crime is still far too high, and we have to take action to ensure that we reduce this type of offending. During Committee—and I have talked about this before—I explained to the House that I was born in Lambeth and grew up in Southwark. I am involved with a little charity there which works with some kids on the council estates. It is quite shocking when you go down there. There are kids living on the Wyndham estate who will not cross the Camberwell New Road into Lambeth because they are terrified that they will be attacked—knifed, and so on. That is what we have to deal with. We need the council to do things, but we also need strong deterrents from the courts as well.

This provision is for all young people—those 16 and over and those 18 and over—not for a first but for a second offence. So they will have previously been caught and convicted of an offence with a knife and can be under no illusion what the likely outcome is if they are caught for a second time. We must do everything we can to stop young people killing each other with knives on our streets, which is a tragedy. However well intentioned this amendment is, it will not help achieve that aim.

However, the Government should give a commitment to review this provision after a couple of years, maybe even bringing forward a sunset clause at Third Reading. That would enable us to evaluate exactly what happens over the next couple of years and to take any corrective action quickly.

Lord Faulks: As noble Lords will be aware from previous discussion on this matter in Committee, this clause was added to the Bill by a Back-Bench amendment in the other place and the principle agreed by your Lordships’ House. Noble Lords will also be aware that agreement has not been reached on the policy underlying this clause within the Government, so I hope that noble Lords will understand why I cannot speak to the detail of these clauses, much though I would like, for example, to have risen to the challenge posed by my noble friend Lord Carlile.

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The only thing I can say is simply to assist the House in answer to a technical query about Section 44 of the Children and Young Persons Act 1933 and the welfare of the child and the young person. That is not—and I do not think my noble friend Lord Marks suggested it was—an impediment to actually passing a sentence of this sort. Otherwise, a child might not ever be sent into the secure children’s estate.

Lord Marks of Henley-on-Thames: I hesitate to interrupt. My noble friend knows full well that that section merely requires the court to have regard to the welfare of the child and therefore is not an impediment to imposing the compulsory sentence. My point is that the circumstances that the court may take into account in declining to impose the mandatory sentence are so circumscribed that that runs counter to the spirit of the provision mentioned.

I assumed I was interrupting, but perhaps that is not the case and my noble friend has finished. I do not propose at this late hour to press these amendments to a vote because I do not suppose they would produce a conclusive result in favour of the amendment, although those in my party feel extremely strongly about this. We deeply regret that the Labour Party has decided not to support our position on 16 and 17 year-olds in particular, and the reason for that regret is that in the lead-up to this debate, and indeed in the lead-up to the debate in Committee, I saw not one shred of evidence from any professional body supporting the imposition of compulsory custodial sentences for 16 and 17 year-olds in these circumstances. We on these Benches believe that maintaining judicial discretion is vital to the administration of justice and we are deeply concerned by its reduction in this and other sections of this Bill. I beg leave to withdraw this amendment.

Amendment 60 withdrawn.

Amendment 61

Moved by Baroness Browning

61: Clause 27, page 24, line 36, leave out from “had” to end of line 43 and insert “at least one relevant conviction (see section 1ZA)”

Baroness Browning (Con): My Lords, first, I apologise to the House that I was not present when your Lordships discussed this clause in Committee, but my interest in this part of the Bill stems from the fact that during this Parliament I was a Minister at the Home Office with responsibility within my portfolio for both knife crime and gang crime.

The amendments tabled in my name and that of my noble friend Lady Berridge seek to tidy up the clause that was passed not just by this House but—as we have heard—came from the Commons with an overwhelming majority when it was tabled and proposed by my honourable friend the Member for Enfield North. So at its third reading I do not propose to rehearse again the arguments, particularly that about the deterrent effect of what is before the House in this Bill tonight. That was eloquently debated by Members on all sides of the House in Committee and the clause passed accordingly. However, quite a few things in the

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clause as it stands need correction and alteration. I hope some of those corrections and alterations will pick up on some of the points that have been raised tonight because clearly it is very important that this proposed legislation—whatever the difference of opinion on the substance—none the less needs to be compatible with existing legislation. There is more than one Act of Parliament already on the statute book to which this legislation needs to be tied without there being any anomalies, and I would like to flag some of them up.

First, to ensure compatibility with Article 5 of the European Convention on Human Rights the clause must provide the court with the necessary discretion to take account of particular circumstances when deciding whether to impose the minimum sentence or mitigate against arguments that any deprivation of liberty is arbitrary, contrary to Article 5. However, with the current drafting, the court may take account of only particular circumstances relating to the current offence and the offender, not those relating to the previous offence or offences, when for example the date of the previous offence—perhaps committed very many years ago—could be relevant.

In addition, Article 5 must be read in the light of Articles 3 and 37(b) of the United Nations Convention on the Rights of the Child, which means particular care must be taken in detaining children. If the necessary consequential amendment is made to disapply the requirement on the court to have regard to sentencing guidelines, there will be no requirement on the court to have regard to the welfare of the offender when sentencing those under the age of 18. Therefore, we consider that a provision requiring the court to have regard to its duty under Section 44 of the Children and Young Persons Act 1933 when considering particular circumstances in relation to 16 and 17 year-olds should be inserted.

8.30 pm

There is also a bit of an anomaly in the way that the drafting deals with appeals. As currently drafted, if an offender is given a minimum sentence and then the previous conviction, because of which the minimum sentence was imposed, is set aside, the offender will be able to appeal the imposition of the minimum sentence, relying on Section 18(3) of the Criminal Appeal Act 1968 and the Court of Appeal’s power to extend the time limit. However, the usual approach is to make provision allowing an appeal within 28 days of the date on which the previous conviction was set aside, providing a fixed end-point by which an appeal must be brought. Therefore, we consider that the clause should be amended to make provision for such an appeal.

My noble friend has already mentioned the question of hospital admission or guardianship, particularly in relation to mental health. As drafted, it would not be open to the court to order hospital admission or guardianship, even if it was satisfied that the offender was suffering from a mental disorder and this was the best way to deal with him or her. Section 37(1A) of the Mental Health Act 1983 expressly states that nothing in the minimum sentence provisions elsewhere on the statute book prevents the court making such an order.

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If reference to this minimum sentence is not added, the implication will be that the court is so prevented. I spent what seemed like a lifetime on the revised Mental Health Act and its pre-legislative scrutiny, and I think that we disregard that Act at our peril. Therefore, we consider that an amendment should be made to Section 37(1A) of the Mental Health Act 1983 to allow a court to make such an order.

I picked on those three elements of the amendments because I think that they are particularly pertinent. They also pick up on some of the points raised in the previous debate on the amendments tabled by my noble friend Lord Marks of Henley-on-Thames.

Attempts were made to seek agreement across the House to the amendments in my name and that of my noble friend before we tabled them. As your Lordships know, I am not a lawyer and we had to seek assistance in tabling them. We hope that we have the legislation and the legalities right to tidy up a clause which we support but which cannot be left in the Bill in its current state. I hope that these amendments are helpful, allay some concerns and improve Clause 27.

Baroness Berridge: My Lords, although my noble friend Lady Browning states that she is not a lawyer, I think that she has outlined to your Lordships’ House in comprehensive detail the changes that are needed to ensure that this amendment, which was made in the other place, does not cause conflict with existing legislation.

Lord Kennedy of Southwark: My Lords, this group of amendments raises important issues, just as we saw with the previous group, concerning the possession of an offensive weapon or a bladed article.

I have the greatest respect for the noble Baronesses, Lady Browning and Lady Berridge. They make some very important points but I am not convinced by their arguments that what they seek is necessary. As I said previously, knife crime can have a devastating effect, not only on the person who is killed or seriously injured but on the life of the offender. In Committee, the noble Lord, Lord Blair of Boughton, told the House that he had to speak to many families whose loved ones had been murdered in such circumstances and saw at first hand the devastating effects of that. We have to get the balance right. For this group of amendments, my previous suggestion stands: we need to look at this whole area and review it after a couple of years. If the Government come back then and look at how the whole Act is operating, that is the best way forward.

I will listen very carefully to the reply by the noble Lord, Lord Faulks, especially with respect to increasing the scope to include people convicted of an offence under various military and Armed Forces Acts. Clearly the noble Baronesses have considered this very carefully. However, I am not convinced that to put in the Bill an amendment that a court must have regard to the duty under Section 44 is necessary. I am sure the Minister will respond to that as well.

Lord Faulks: I am sorry to disappoint the noble Lord, Lord Kennedy, and the House but I am unable to respond in detail because, as I said in response to

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the earlier amendment, the clause has been added by a Back-Bench amendment and the principle has been agreed by your Lordships’ House. However, agreement has not been reached within the Government on the policy underlying this clause. Therefore, I am unable to speak as to the detail of these clauses.

Baroness Browning: My Lords, I am most grateful—that is, I think I am grateful. This is a serious subject and it is incumbent on all of us, when legislation is passed, regardless of whatever view we have taken, to make sure that it is as legally sound as possible. I have sought advice to try to do that and I hope that that is helpful to the House. I am grateful to all Members who have contributed to the debate.

The Deputy Speaker (Baroness Pitkeathley) (Lab): Is it your Lordships’ pleasure that this amendment be withdrawn?

Baroness Browning: I am not withdrawing the amendment.

The Deputy Speaker: The amendment has already been moved and the Minister has responded, so it is for the noble Baroness now to decide what she wishes to do with the amendment.

Lord Marks of Henley-on-Thames: My Lords, before my noble friend formally concludes speaking to the amendment in response to the Minister, perhaps I might indicate that in our view it is unsatisfactory that an amendment is reaching the statute book with very detailed amendments proposed by the noble Baronesses, Lady Berridge and Lady Browning, without the Government having expressed any view as to the degree to which they work. If what I suspect is now going to happen does happen, these amendments will be carried and this is the way that the Bill will go on to the statute book. We regard that as unsatisfactory. Perhaps consideration should be given to procedure on a Bill of this sort in future.

Lord Faulks: The Government’s position has not changed. Parliamentary counsel assisted the noble Baroness in making sure that the necessary amendments were properly and accurately drafted. I hope that that assists the noble Lord.

The Deputy Speaker: Does the noble Baroness wish to withdraw her amendment or seek the opinion of the House?

Baroness Browning: I do not wish to withdraw the amendment.

Amendment 61 agreed.

Amendment 62

Moved by Baroness Browning

62: Clause 27, page 25, line 1, leave out from beginning to “the” in line 2 and insert “Where this subsection applies,”

Amendment 62 agreed.

Amendments 63 and 64 not moved.

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Amendment 65

Moved by Baroness Browning

65: Clause 27, page 25, line 5, after “offence” insert “, to the previous offence”

Amendment 65 agreed.

Amendments 66 to 68 not moved.

Amendments 69 to 71A

Moved by Baroness Browning

69: Clause 27, page 25, line 11, at end insert-—

“(2CA) In considering whether it is of the opinion mentioned in subsection (2B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).

(2CB) Where—

(a) an appropriate custodial sentence has been imposed on a person under subsection (2B), and

(b) a relevant conviction without which subsection (2B) would not have applied has been subsequently set aside on appeal,

notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”

70: Clause 27, page 25, line 18, leave out “(2B)(a)” and insert “(2C)(a)”