Criminal Justice and Immigration Bill

Public Bill Committee, 16 October 2007.

Nicholas Winterton (Conservative, Macclesfield)

I welcome hon. Members to this first sitting of the Public Bill Committee on the Criminal Justice and Immigration Bill. Although I have already done so in the Programming Sub-Committee, I welcome in particular those new hon. Members who have been thrown into the lions’ den at an early stage of their parliamentary career—the hon. Members for Ealing, Southall and for Sedgefield. I hope that they enjoy our proceedings.

Before we begin, I have several preliminary domestic announcements to make. I am always pleased that hon. Members are as comfortable as possible so, if they wish, they may remove their jackets during our sittings. I request them to ensure that their mobile telephones, pagers and other electronic devices that make noise are turned off or switched to silent mode during sittings. If I hear any intervention from such gadgets, the look on my face will tell all.

I remind the Committee that copies of the money resolution in connection with the Bill are available in the room. I also remind hon. Members that adequate notice should be given of amendments. As a general rule, I and my fellow Chairman, Mr. O’Hara—who happens to be in the room—do not intend to call starred amendments, including any that might be reached during an afternoon sitting of the Committee. I hope that the lead spokesmen for Opposition parties, in particular, will take note of that.

We are still in the very early days of taking oral evidence in Public Bill Committee proceedings, so it might help if I explain briefly what is proposed so that we can all be clear what we are about and how we should proceed. The Committee will first be asked to consider the programme motion on the amendment paper on which debate is limited to half an hour. We shall then proceed to a motion to report written evidence and a further motion to permit the Committee to deliberate in private in advance of the oral evidence sessions, which I hope that we can take formally. Assuming that that motion has been agreed, the Committee will then move into private session. After it has deliberated, witnesses and members of the public will be invited back into the room and our oral evidence session will commence. If the Committee agrees to the programme motion, it will hear oral evidence today and on Thursday before reverting next week to the more familiar proceedings of clause by clause scrutiny of the Bill. I call the Minister to move the programme motion.

David Hanson (Labour, Delyn)

I beg to move,

That —

(1) the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 16th October) meet—

(a) at 4.00 p.m. on Tuesday 16th October;

(b) at 9.00 a.m. and 1.00 p.m. on Thursday 18th October;

(c) at 10.30 a.m. and 4.00 p.m. on Tuesday 23rd October;

(d) at 9.00 a.m. and 1.00 p.m. on Thursday 25th October;

(e) at 10.30 a.m. and 4.00 p.m. on Tuesday 20th November;

(f) at 9.00 a.m. and 1.00 p.m. on Thursday 22nd November;

(g) at 10.30 a.m. and 4.00 p.m. on Tuesday 27th November;

(h) at 9.00 a.m. and 1.00 p.m. on Thursday 29th November;

(2) the Committee shall hear oral evidence in accordance with the following table:

TABLE

Nicholas Winterton (Conservative, Macclesfield)

I am sure that members of the Committee are grateful to the Minister for the reasonable and constructive way in which he has set out the contents of the programme motion.

Edward Garnier (Conservative, Harborough)

I join the Minister in welcoming you, Sir Nicholas, and your colleague, Mr.O’Hara, as Chairmen, both of the evidence sessions and of the main Bill Committee, starting next week. I also welcome the Minister and his ministerial colleagues. I have done business with two of them, but not with the Under-Secretary of State for Justice, and I look forward to dealing with her arguments as we progress.

I, too, join the Minister in welcoming the two new Members of Parliament to the Committee. They are under no disadvantage whatever, because we are all new to this procedure. Whether it is any use we will shortly discover. I have some private doubts as to the usefulness of the arrangement—I say that these are private doubts because we are in Committee, so no one is listening—because the Public Bill Committee starts next week and there is, therefore, very little time between the closing of the evidence sessions on Thursday and the beginning of the Committee on Tuesday, for the Government to do anything about the evidence that they have received.

It would be ridiculous and unduly cynical of me to suggest that that was the entire point of the exercise and that this was a release valve system to allow outside bodies to think that they are having some input into the construction of the pudding, and for the Government to doff their cap to democracy, then move on and do precisely as they always intended to do. We shall see; I know that the Minister of State, Ministry of Justice is a man of immense good will and will seek to accommodate the criticisms, be they constructive or otherwise, that emanate from my party’s benches and those of the Liberal Democrats during the course of proceedings. Needless to say, I am pleased that he is contemplating, through discussions between the hon. Member for Tooting and my hon. Friend the Member for Ruislip-Northwood, adducing more evidence during the course of proceedings, namely from the Evangelical Alliance.

I made some suggestions to the Government in the summer about witnesses whom I thought were appropriate for this hearing. I cannot understand it, but, either the letter must have got lost or they did not find my suggestions entirely happy ones. I would have thought that it would have been useful in such a Bill to have heard evidence from, if not the Lord Chief Justice, perhaps his deputy, Sir Igor Judge, and from representatives from the council of circuit judges. That is, the Crown court judges, who have to deal, along with the magistrates, from whom we are hearing, with the bulk of first instance criminal cases.

I described the Bill on First Reading as a plum-duff. I could use any other suitable metaphor to demonstrate that it has been pulled together without a theme; no central argument seems to push through its core. It is simply a collection of nice ideas, in the Government’s thinking, which have been pulled together under one title, the Criminal Justice and Immigration Bill. It seems to me that there are a number of issues in the Bill that should have been separated into different pieces of legislation. That would embarrass the Government because it would take the number of Bills from this Department and its predecessor into the stratosphere. I do not feel that it will add to public safety or reduce reoffending. However, we will discuss that in due course.

I am, none the less, content for the moment with the programme motion. I am sure that my hon. Friends sitting on what the Minister described as the Government Benches are merely rehearsing for what will be the inevitable—

Maria Eagle (Labour, Liverpool, Garston)

You are not expecting to be in the Government.

Edward Garnier (Conservative, Harborough)

I said that I was looking forward to the hon. Lady’s arguments. If they are at that level, I am looking forward to them even more.

Hon. Members from all sides welcome this opportunity to expose the incompetence and uselessness of Government legislation of any variety. We cherish, and indeed relish, the opportunity to engage in argument, as I am sure the hon. Member for Somerton and Frome will agree, in the most calm, cautious, thoughtful and considered way over the next few very brief weeks. Let us enjoy it, but let us try to produce some decent legislation, rather than just churn out the conveyor belt of early-day motion-style legislation, which achieves nothing except a headline in the occasional tabloid newspaper.

With those happy remarks, on behalf of all of my parliamentary colleagues from the official Opposition, I welcome you, Sir Nicholas, and the ministerial team. I trust that we will have a constructive few weeks doing business.

Nicholas Winterton (Conservative, Macclesfield)

I am sure that we will.

David Heath (Liberal Democrat, Somerton and Frome)

I too welcome you to the Chair of this Committee, Sir Nicholas, along with your co-Chairman, Mr. O’Hara. I have worked with both of you in the Chair and know that you will keep excellent order and maintain a high level of scrutiny.

There has been a lot of talk, on Second Reading and today, about the number of criminal justice and immigration Bills that we have dealt with. It has been my sad misfortune, over 10 years, to have participated in most of them. I feel that I might have heard every possible argument on criminal justice that it is possible to adduce. The hon. and learned Member for Harborough said that Government legislation is all useless and incompetent. It is not all useless and incompetent; it is just mostly useless and incompetent. Our job is to identify and promote those parts that are not useless and incompetent and to remove some of the surplus to another place.

I am grateful to the Minister and his team, who I also welcome to the Committee, for having listened to what I said about the programme motion on Second Reading, and for arranging an alternative to be agreed by the House.

I, too, am new to the procedure of Public Bill Committees taking evidence and I echo some of what the hon. and learned Gentleman said. If Public Bill Committees taking evidence is to mean anything, it is important, first, that we hear from the people who have something that it is important that we hear and, secondly, that we have the opportunity to deliberate on that information to see whether it has relevance for what we do later.

I must say to the Government that it would have been far better had we not started any of the deliberative sittings until after Prorogation. We were quite clear that we would have evidence sessions before that. Given the unique timing of having Prorogation in the middle, it would have been better to have the opportunity of carefully considering the evidence over that period, which fortuitously we have in the middle, and of starting the line-by-line scrutiny of the Bill afterwards. If the evidence sessions are to work, who the Committee hears cannot be in the hands of the Government. I know that there have been talks between the hon. Members for Tooting and for Ruislip-Northwood. The hon. Member for Ruislip-Northwood was kind enough to speak to me in the Tea Room yesterday and to give me the benefit of some of his thoughts.

We need a more formal arrangement outside of the Committee, which would enable us to discuss which witnesses it would be appropriate to call, and to take that advice from a wider section of the Committee. When we take evidence, the Committee does not act as a hierarchy but as a Select Committee. Therefore it would be open for all hon. Members to suggest who might usefully give evidence. That structure is not in place at the moment and as a result, although I have no doubt as to the value of the evidence that we will hear, there are certainly people whom my hon. Friend the Member for Cambridge and I could suggest as useful witnesses. The hon. and learned Member for Harborough has already suggested people from the judiciary whom it would be useful to hear from, but there is a wider spectrum of people who will be affected by the Bill and whom we should consider.

Perhaps, Sir Nicholas, we can find a way to examine the witnesses whom the Committee is to call and to take a view on whom we would like to hear from. If the consequence of that is that we have more evidence-taking sessions before Prorogation, and the line-by-line scrutiny takes place after Prorogation, to me that is no bad thing.

There are very important matters for consideration. I am going to forswear any pudding metaphors, but the Bill covers a wide range of issues. There is no—I think the current term is “narrative”—that links many of those issues, and it is therefore important to give each and every part of the Bill our careful scrutiny.

There are large parts of the legislation with which I broadly agree, in principle if not in detail. There are some areas where I will strenuously disagree with the Minister, but that is something that the Committee will examine over the weeks to come and I personally look forward to it.

Nicholas Winterton (Conservative, Macclesfield)

May I help the Committee by responding to one or two of the points that the hon. Member for Somerton and Frome has raised? Of course matters relating to those witnesses who come before the Committee can be discussed and agreed upon across the House, outside the Committee. Such matters must then be put to the Programming Sub-Committee which would endorse any other proposals. The Programming Sub-Committee would then report to this Committee, which, as a whole, could agree upon and endorse its recommendations. There is an opportunity for flexibility and I hope that that gives some reassurance. If the Minister would like to intervene at this stage I am happy for him to do so.

David Hanson (Labour, Delyn)

I should like to respond to some of the points raised as I would not want the Committee to take all of them at face value. There is a strong Government defence for some of those issues.

First, I say to the hon. and learned Member for Harborough that any witness who gives evidence to the Committee will have the opportunity to raise points with the Government, the Opposition and individual Labour Members, in order to influence the Bill’s progress. Some issues may be raised during evidence sessions that we are not able to act upon during the Bill’s initial consideration. However, the hon. and learned Gentleman will know that there is not only the Committee stage, there is also Report, proceedings in the other place, and Third Reading—there is a whole range of mechanisms through which we can absorb the views that are put. If the Government and hon. Members believe that the points raised are valid, we will consider and accept them.

Edward Garnier (Conservative, Harborough)

My main concern is that the evidence session is timetabled to finish this Thursday and the Public Bill Committee to start next Tuesday. Would it not be more sensible to allow a period of reflection between the end of the evidence sessions and the beginning of the Public Bill Committee? If one started the Bill Committee after the start of the new Session, the Government would have the advantage. I am not suggesting that they would necessarily reach any different conclusions—that would be a hope too far—but they would at least have the opportunity of being seen to have that time to reflect on the evidence. Therefore, my gentle suggestion is that Ministers spend next week at the Ministry of Justice and the Home Office reflecting on what they have heard this week rather than going through the line-by-line discussion of the Bill.

David Hanson (Labour, Delyn)

I am grateful for the hon. Gentleman’s suggestion. However, that suggestion was not put to the Programming Sub-Committee or indeed to the usual channels before their discussions. I commended the programme motion before the Committee today. I say to the hon. and learned Gentleman that the purpose of these evidence sessions, as outlined by the Leader of the House, is to ensure that we have some wider debate on such points.

I will make two other quick points. There was a suggestion that the Opposition had not been consulted about the individuals who form the Committee and that the hon. and learned Gentleman’s letter had got lost in the post. He will know that I wrote to him about such matters before the recess, and he will know that my hon. Friend the Member for Tooting discussed the matter with the official Opposition. He will also know, if he looks at his letter and file, that as a result of his representations, the Police Federation and the Probation Boards Association have been added to the list of witnesses for the Committee in the programme motion. The time available to debate the programme motion prevents me from going any further now.

The hon. and learned Gentleman will know that we also approached the judiciary on his suggestion to see if they wished to participate in evidence session. The judiciary declined to take part because of the party political nature of some of the discussions that might take place. He will reflect on the fact that we have considered such matters and, in doing so, have accepted some of his suggestions. I am very happy to do that because my hon. Friend the Member for Tooting was exemplary in the way that he held discussions with colleagues beforehand, as indeed were my officials, to ensure that we had a full replication of the wishes of the Committee.

I would say the same, without being too hasty, with regard to the hon. Member for Somerton and Frome. The same discussions were held with the official Opposition. My hon. Friend assures me that he has had discussions with the Liberal Democrats in relation to the witnesses and the Select Committee aspect of the Bill. I have been assured by him that the Liberal Democrats did not propose one single witness to attend this evidence session. I am very relaxed about that. At the end of the day, we are a Committee and we will seek evidence from individuals and individuals will put points to the Committee. As a Minister, I and my colleagues will try to facilitate the opportunity for individuals to put evidence in a positive way to the Committee.

In final summation, I welcome the fact that we can add the Evangelical Alliance. The programme motion before the Committee was agreed without a Division in the Programming Sub-Committee. If I can break confidences, there was very little discussion at that stage about adding to the programme motion. I commend the motion to the Committee and I hope that both the hon. and learned Member for Harborough and the Liberal Democrats will understand that the Government want to engage with them in a positive way. We want to have witnesses. If there are lessons to be learned about this process, then, certainly, we will try to learn them. However, I believe that by trying to engage others in discussion, we have acted in an honourable way. I hope that the programme motion reflects the wishes of the Committee.

David Hanson (Labour, Delyn)

I beg to move,

That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.

Edward Garnier (Conservative, Harborough)

On a point of clarification, will any written evidence received after the close of the formal evidence sessions, during the course of the Committee sittings, still be acceptable and placed on the record?

David Hanson (Labour, Delyn)

The hon. and learned Gentleman will know that the motion that I have just moved states that this is subject to the discretion of the Chairman. I am relaxed about that, Sir Nicholas, pending your relaxation also.

Nicholas Winterton (Conservative, Macclesfield)

I can give a straightforward and single word answer to the hon. and learned Member for Harborough. That answer is yes, so I hope that that is of some reassurance.

Nicholas Winterton (Conservative, Macclesfield)

Copies of any memorandums that the Committee receives will be made available in the Committee Room.

Nicholas Winterton (Conservative, Macclesfield)

We will now hear evidence from representatives of the Ministry of Justice and the Home Office, two very important Government Departments. I welcome the witnesses here today. Mr. Hanson, as the lead Minister for the Government, would you like to introduce your colleagues to the Committee?

Nicholas Winterton (Conservative, Macclesfield)

Thank you very much. Everybody now knows who everybody is. Questions can be directed to any of our witnesses or, for that matter, to all of them. I hope that they will be specific to individuals who are giving evidence to us. Before calling the first member of the Committee to ask a question, I should like to remind all hon. Members that questions should be limited to matters within the scope of the Bill. I call David Burrowes to put questions on the first matter.

David Burrowes (Conservative, Enfield, Southgate)

First, I declare an interest as a practising criminal solicitor, particularly in local youth courts. My first question is a general one, put on behalf of many practitioners who often have to perform mental gymnastics in straddling different pieces of legislation and working out which have been implemented from the last criminal justice Act. They would want to ask whether you really listen to and consult them. They are concerned about the pace of legislative change, particularly in youth courts, and wonder whether this extra Bill will deal with their concerns about that pace and their ability to deliver justice in youth courts.

David Burrowes (Conservative, Enfield, Southgate)

If the intention is to replicate in many ways the adult rehabilitation orders established under the Criminal Justice Act 2003, why not have an alcohol treatment requirement? Also, to allow you to be specific in terms of rehabilitation orders, why have you kept apart a reparation order, rather than absorb it within a generic order?

Nick Hurd (Conservative, Ruislip - Northwood)

First, I should like to follow up on the question that the hon. and learned Member for Medway (Mr. Marshall-Andrews) asked the Secretary of State for Justice on Second Reading, which was what exactly this youth rehabilitation order package contains that is not available to the courts today. The hon. and learned Gentleman did not get an answer. I should be grateful if the Minister gave the Committee an answer, together with some sense of the evidence and data supporting the view that the courts are crying out for this new generic package.

Secondly, I should like to know about the resources available for some of the requirements. The evidence from the Centre for Crime and Justice Studies, on analysing community orders for adults, is that some of the requirements, particularly in relation to attendance centres and drug treatment, are not widely used because they are not widely available. I should like to get a sense of what resource back-up is being considered to make such things more widely available.

Thirdly, under clause 1(3)(b), as I read it, there is increased provision for the state effectively to take people’s children away. Given the sorry track record of the state as a parent, which has been described by a former Home Secretary of this Administration as a scandal, will the ministerial team assure the Committee about the underlying intentions in the Bill and say what evidence there is to support this apparently chilling provision? Most people—certainly, my constituents—would want the state to be focused more on making parents more responsible for their children, rather than taking them away.

Edward Garnier (Conservative, Harborough)

Let me help the Minister. Paragraph 18 of schedule 1 refers to a fostering requirement that will become part of the punishment process that will be available to the courts. Sub-paragraph (7) states:

“A court may not include a fostering requirement in a youth rehabilitation order unless the court has been notified by the Secretary of State that arrangements for implementing such a requirement are available in the area of the local authority which is to place the offender with a local authority foster parent.”

On the face of it, it looks as though the Bill is promising several things, but unless the Secretary of State has the resources to implement them, they will not happen. Can you tell us whether the Secretary of State has resources in place for every local authority area, so that the provision can be implemented? Presumably, you thought about such matters before you drafted the Bill.

Edward Garnier (Conservative, Harborough)

I do not think that you quite understood my point; I shall try again. We understand what you are intending to do, but you cannot do anything unless you have the resources—indeed, the Bill says that you cannot do anything unless the Secretary of State says that the resources are there. We also know that 27 per cent. of all people in custody, be they children, young offenders or adults, have come through the care system—they have been looked-after children. It seems that you are promising something when you have not worked out whether you have the resources to provide it. In any event, if you could provide it, would you not simply be increasing the number of people in an already overcrowded custodial estate?

Edward Garnier (Conservative, Harborough)

But surely you should have thought about whether the resources were available before drafting the Bill. We know that the Prison Service, for example, is being asked to make 3 per cent. efficiency savings this year; we know that there has been no increase in the Home Office budget, which is essentially a cut; and we know that the Ministry of Justice has not inherited any increase in its budget. It seems to me that we have two Departments with no money to spare introducing more things to do. However, they will not do them because the Secretary of State will not be able to certify that he has the provision to do so. Could you please explain to us, before the Bill gets very much further, why these things are in it unless you can tell the world, the public, your voters and the taxpayer that the resources are available to achieve what you intend to put into law?

Nicholas Winterton (Conservative, Macclesfield)

It is my understanding that the Minister has taken the point and I have no doubt that it will be followed up later in our deliberations.

David Heath (Liberal Democrat, Somerton and Frome)

My question is in the same area, because I am interested in the response to the question on general resourcing. Resources are critical to the success of this part of the Bill and the various orders that a court may make, and currently they are not there.

Before our deliberative sittings, will the Minister provide the Committee with information about the access to health treatment, mental health treatment and drug treatment for the residents of each criminal justice area, so that we have some overview of the resources available in each area and whether courts will be able to make these orders, or whether they will be restrained by the provision not being there? Where there are gaps, I think that the Committee should be aware of them. Can the Minister provide that information?

Phil Wilson (Labour, Sedgefield)

I have one question on under-age drinking, which, as we know, can in itself fuel crime. In the rehabilitation orders there is nothing about alcohol treatment requirements as there is in the community sentences for adults. Is that an oversight? Will you be putting it in or is there a reason for missing it out?

Edward Garnier (Conservative, Harborough)

Will the Bill, and particularly part 1, which deals with youth justice, lead to an increase, a decrease or a standstill in the number of young people in custody?

Edward Garnier (Conservative, Harborough)

Have you done any planning or carried out any projections of how it will affect the custodial population?

Edward Garnier (Conservative, Harborough)

Will you share with the Committee at some stage your thinking and the evidence that your Department, as you have designed this Bill, will have taken in relation to resource implications and the numbers of people being disposed of by the courts either through the community punishment system, or in respect of youngsters through referrals or going into custody? As you know, your prison estate is completely full and you have no room for any more.

Nicholas Winterton (Conservative, Macclesfield)

Can we now move on to part 2, sentencing? I ask Mr. Garnier to put his question to the Minister.

Edward Garnier (Conservative, Harborough)

As my hon. Friend Mr. Burrowes made clear, I am a sentencer. I sit as a Crown court recorder, so I have to digest this measure, as I had to digest the 2003 legislation, which I shall now have to put aside in order to digest this one and many of the other measures that the Government have passed over the last 10 years.

Why are you abolishing the suspended sentence for summary offences? What is the thinking behind that policy?

Edward Garnier (Conservative, Harborough)

Surely you will have consulted the Judicial Studies Board on this matter. You understand that you do not consider a suspended prison sentence until you have worked out whether that offence, that offender and the circumstances surrounding that particular set of facts merit a custodial punishment in the first place. You have got to cross the custodial threshold, and it is only when you have considered the special circumstances of the offender and perhaps other matters that you then go back to consider whether you should suspend that custodial sentence. It is not an alternative to a community sentence, it is an alternative to immediate custody.

Edward Garnier (Conservative, Harborough)

Well, you can give a suspended sentence with requirements that are additional to it. There are already existing mechanisms to deal with that sort of behaviour.

Can I take you on to indeterminate sentences for public protection, as we have to rattle along? Could you explain the English of clause 12, in which you attempt to clarify your new regime with relation to imprisonment for public protection measures? IPPs were introduced in the Criminal Justice Act 2003 with some degree of fanfare. Clause 12 seems to prick the enthusiasm with which your predecessors in the Home Office introduced them. Perhaps you could explain what is going on.

Edward Garnier (Conservative, Harborough)

You are right—indeterminate sentences.

Edward Garnier (Conservative, Harborough)

Are you suggesting that clause 12 introduces greater judicial discretion, rather than removing it?

Edward Garnier (Conservative, Harborough)

Thank you.

Edward Garnier (Conservative, Harborough)

To what extent would that have a bearing on the prison population?

Edward Garnier (Conservative, Harborough)

You reckon on 1,300 additional—

David Howarth (Liberal Democrat, Cambridge)

I have a question on clause 10, going back to the debate on the abolition of suspended sentences for summary offences. I also have a point to make on clause 18 about the relationship between the Parole Board and the Secretary of State.

First, on clause 10, how will the Government avoid the following problem if suspended sentences are abolished for summary offences? The way in which many sentencers think about the decision before them is to think first, “In or out? Is this an offence that requires imprisonment or not?” After they have thought “In or out?”, they think, “Suspend or not?” That is the structure of the decision. If that is how sentencers think, and if the ability to suspend is taken away, they may decide “in”, and then, with no powers to suspend, we therefore end up with more people in prison. That is the problem. Perhaps you could answer that question and then I will come back to my other question.

David Howarth (Liberal Democrat, Cambridge)

Perhaps I should have declared an interest. My wife is a magistrate and has been doing this kind of sentencing for a long time. Magistrates are trained in particular ways to approach those questions in particular ways, and perhaps that is where the Government need to look for the solution on how magistrates are asked to approach sentencing.

Clause 18 abolishes the requirement for the Secretary of State to receive a recommendation from the Parole Board before recalling a prisoner who is subject to a life sentence. At the moment the Secretary of State can only act without the Parole Board’s involvement if it is in the public interest to recall the offender before the Parole Board can make a recommendation—in other words in an emergency. That emergency system will now be the overall way of doing things and the objection to that is that it brings the Secretary of State far too much into the sentencing process. The Government have already had severe legal problems with the question of the independence of the Parole Board. Will not clause 18 make that situation worse? Does it not in effect put the Secretary of State in the position of a judge? It violates the principle of the separation of powers.

David Howarth (Liberal Democrat, Cambridge)

I did not understand that. Is it not the case at the moment that where the Parole Board cannot act quickly enough, the Secretary of State already has the power to recall?

David Howarth (Liberal Democrat, Cambridge)

In the rest of the Bill, the Parole Board effectively acts as an appeal court for the Secretary of State. That does not appear in clause 18.

David Burrowes (Conservative, Enfield, Southgate)

Going back to clause 10, are you paying lip service to the issue of judicial discretion? If you were to follow the concerns about judicial discretion, would you not go back to the situation that applied before April 2005 when magistrates had discretion over suspending a sentence, rather than pigeonholing them under this provision and allowing them to suspend sentences only if the offence is indictable either way?

David Burrowes (Conservative, Enfield, Southgate)

Because the Government have directed that a much more firm line be taken on the breaching of community of orders?

David Burrowes (Conservative, Enfield, Southgate)

So the answer is to remove the power rather than, as the Minister said, clarify the situation and look at training on how magistrates apply their powers?

Edward Garnier (Conservative, Harborough)

Has anybody done any work on the point that Christine Stewart was making? Are the people who have been getting suspended custodial sentences for summary offences persistent and repeat offenders? Has the court had to say, “We have tried non-custodial and community sentences, but you keep on doing this. The only thing that we can do is notch it up one more rung of the ladder. We will send you to prison, but suspend the sentence. If you make a mistake again, you will go inside.” Most people who end up in front of the courts and are given a custodial sentence, subject to the most serious offences, have been through the courts before and the courts have decided that they are running out of options and that custody is the next stop. A suspended sentence may be the halfway point.

Edward Garnier (Conservative, Harborough)

If you find that the evidence suggests that of the 40 per cent. that Christine Stewart was talking about, most of those are persistent offenders, albeit low level, and therefore anti-social—there is a victim to every offence, whether they are direct or indirect—would you consider reintroducing the magistrate’s power to suspend a custodial sentence?

Edward Garnier (Conservative, Harborough)

One can give a suspended sentence with additional requirements. I have found that a very useful sentence to give; it tends to work if there are adequate numbers of probation officers to do the supervising. It may be that the probation service is exhausted at the moment. I fully appreciate that the Government is trying transfer supervision to the third sector and the private sector, and I applaud that in many respects, but given the current set-up, it seems that there is value in a suspended sentence, even for summary offences in the persistent offender category.

Virendra Sharma (Labour, Ealing, Southall)

Can the Minister explain, as a former lawyer, in plain English, what is meant by clause 19(2) and proposed new section 46ZA, particularly proposed new subsection (2)?

Nicholas Winterton (Conservative, Macclesfield)

Thank you, Minister. We now pass on to part 3: Appeals. Mr. Garnier has the questioning.

Edward Garnier (Conservative, Harborough)

I think that I am right in saying that the Secretary of State said on Second Reading that the Government was going to reconsider the wording of clause 26. The Government will have received, I would have thought, quite a number of letters or communications expressing concern about the scheme behind part 3. Will the Minister give us an indication of what she intends to replace the clause with?

Edward Garnier (Conservative, Harborough)

How are you going to measure that? How is the Court of Appeal to make a decision about whether something is a mere procedural misdemeanour as opposed to serious misconduct? Also, are you not concerned that you are completely interfering with the way in which the Court of Appeal currently works? I think that the Court of Appeal has the power to use the proviso—Mr. Howarth tells me that that is the technical term—in certain circumstances. Am I not right in thinking that the Court of Appeal can already take account of mere procedural irregularities if there is a pressing case for upholding the conviction? Are you not allowing your mind and your policy to be directed by one or two emotionally charged cases, such as the one that you mentioned a moment ago, whereas what we are trying to do is to design good law for the entire appellate system?

Edward Garnier (Conservative, Harborough)

Is it not the case that the Court of Appeal is not interested simply in guilt, but also in justice? That is what you should be interested in too.

Edward Garnier (Conservative, Harborough)

Have you got a draft?

Edward Garnier (Conservative, Harborough)

Have you got a draft of a draft?

David Heath (Liberal Democrat, Somerton and Frome)

I have just a couple of questions. It seems a very odd way of demonstrating the intention of giving additional discretion to the Court of Appeal by introducing a clause which, as it originally stated, clearly restricts the discretion of the Court of Appeal. How on earth did we have the genesis of clause 26 in its current form?

David Heath (Liberal Democrat, Somerton and Frome)

May I put it to the Minister that the Bill is not drawn too widely; it is simply wrong. It addresses an issue where the Government have provided no evidence that there is an issue to address. Can she provide the Committee with a list of the cases that gave the cause for concern? She talks about Mullen-type cases, but I know of only one Mullen-type case, and that is Mullen. Presumably, the Department has a definitive list of other cases that gave rise to concern. The Committee is entitled to know what those cases were, and in what way the court misinterpreted its present discretion, and [ Interruption. ]—and, as was said from a sedentary position; we are all sedentary at the moment, but from a particularly sedentary position by Mr. Garnier—expressed its concern about any fettering of its discretion. Can the Government prove that they have come up with some other issues in the letter that has been sent to you, Sir Nicholas, from the Government, that might represent useful additions to the terms of the Court of Appeal, and which could replace this section? Until I hear a rationale for clause 26 in its present form, I am not sure that the Minister needs to make strenuous efforts to redraft it, because it addresses an issue that very few of us see as a current problem. I hope that if she is not ready in Committee to produce a new draft and table it as an amendment in regular time, she will accept an amendment to leave out clause 26 in Committee, because the present clause 26 is simply unsatisfactory.

David Heath (Liberal Democrat, Somerton and Frome)

How many people who admit guilt go before the Court of Appeal, as a matter of interest?

Edward Garnier (Conservative, Harborough)

On the length of the sentence, I do not imagine that it would be—

Nicholas Winterton (Conservative, Macclesfield)

We have laboured that matter. Is there another question, Mr. Heath, before we go on?

David Heath (Liberal Democrat, Somerton and Frome)

No, Sir Nicholas.

David Howarth (Liberal Democrat, Cambridge)

I have one question. In the paper that you are bringing forward, can we have the Government’s view of the present law and how that differs from the Court of Appeal having the discretion that the Secretary of State said it should have?

Nicholas Winterton (Conservative, Macclesfield)

We move on to part 5, “Other criminal justice provisions”. I know that David Burrowes has a question to put to our witnesses.

David Burrowes (Conservative, Enfield, Southgate)

In relation to the extension of conditional cautions, could you respond to the concerns of magistrates and others that effectively it is dumbing down justice and is avoiding the disposal that can happen in court? If it is to look at conditions that involve rehabilitation and stopping people reoffending, what will be included in those provisions and are there the resources to deliver it?

David Burrowes (Conservative, Enfield, Southgate)

Will you spell out those safeguards?

David Burrowes (Conservative, Enfield, Southgate)

Are there any further safeguards?

David Burrowes (Conservative, Enfield, Southgate)

There are to be no further directions or guidance?

David Burrowes (Conservative, Enfield, Southgate)

But I am speaking of safeguards in relation to the extent of the conditions and their restrictions on the activities or liberty of the young offender. The application of conditional cautions for older offenders is very much used—some would say abused—in relation to the extent of those conditions, which do not necessarily deal with the concerns to rehabilitate that offender.

David Burrowes (Conservative, Enfield, Southgate)

Finally on that point, will there be extra resources to deliver the rehabilitation and reparation that people want, for example in relation to alcohol and drugs, which are often a key factor in youth offending? Will resources be dedicated to deliver that rehabilitation from drugs and alcohol?

David Burrowes (Conservative, Enfield, Southgate)

Will we be able to get that information?

Edward Garnier (Conservative, Harborough)

What practical consequences do you anticipate of the increase in magistrates’ powers to try people in their absence?

Edward Garnier (Conservative, Harborough)

There is clearly a power, which is on page 37 of the Bill, for the court to send somebody to prison if they are convicted in their absence and the court can sentence the defendant to custody. Normally, one would expect before custody—indeed, before any sentence—that there would be a pre-sentence report. You will not get one in this case, will you?

Edward Garnier (Conservative, Harborough)

I was making a point about pre-sentence reports. The sentence will have been given. The defendant can then come and say why he was not there on the last occasion, but the sentence will have been made and the court will be functus officio as far as that is concerned, therefore subject to an appeal, at great expense and delay, and that is that—off he goes.

Edward Garnier (Conservative, Harborough)

How do you know?

Edward Garnier (Conservative, Harborough)

We are talking about trials—trial or sentencing; I am not restricting myself to sentencing. A person is tried in his absence; he is found guilty in his absence and is sentenced in his absence. He is then sentenced to a term of custody without a pre-sentence report. Eventually, he is brought to court, where he is given an opportunity to explain his absence—

Edward Garnier (Conservative, Harborough)

It will have some effect on the numbers in custody, will it not? To accommodate the increasing number of people in custody under the Government’s current sentencing regime, they have had to introduce early release from custody on licence, with which you will be familiar. The plan is that, during the 12 months from June 2007, 25,500 offenders will be released early from prison to reduce the net prison population by about 1,500 to 2,500.

A number of the provisions in the Bill are calculated to—I use that in the proper sense of the word, rather than to mean intended to—increase the prison population and create difficulties for prison capacity. Perhaps the Minister of State can help you on this, but do you have any plans to increase the 18-day early release period to deal with some of the prison overcrowding issues that will flow inevitably from several provisions of the Bill?

Edward Garnier (Conservative, Harborough)

We have not seen a net fall in the prison population since ECL was introduced, and about 6,000 people have been released so far on ECL. It is not doing the job. Court cells and prison cells are continuing to be used. Do you have any plans to increase the 18-day period?

Edward Garnier (Conservative, Harborough)

But I am asking you a question, and I should be obliged if you would answer it.

Nicholas Winterton (Conservative, Macclesfield)

Order. Will the hon. and learned Gentleman please ask the Minister the question again?

Edward Garnier (Conservative, Harborough)

Thank you, Sir Nicholas. A number of the provisions of the Bill are bound to increase the prison population. The prison population has not been reduced as a result of the introduction of ECL with an 18-day early release. I am asking you whether you now have plans to increase the 18-day period for early release to something longer than that.

Edward Garnier (Conservative, Harborough)

Let me try again. Eighteen-day ECL has not reduced the net prison population and indications are coming from your Department that the court service will be required to make court cells available. The police will, of course, continue under Operation Safeguard to make available police station cells to accommodate people who cannot fit into prison. I need to know from you whether your statement that there will be no immediate decision to increase 18 days to some higher number means not this week or not next week. I want to know what “immediate” means. Clearly, you must have thought about it because the real issue that is affecting our criminal justice system day by day is the overcrowding of the custodial estate. We both know that.

Nicholas Winterton (Conservative, Macclesfield)

We have a brief question from Mr. Sharma before we move on to the next section.

Virendra Sharma (Labour, Ealing, Southall)

My question is on clause 58, “Extension of powers of non-legal staff”. I am aware that there are many advocates—people who have worked in the law centres and the advice agencies have learned and picked up advocacy skills. However, when we are talking about the designated caseworkers, what level of qualification will be required and what skills and formal training will they have before actually getting into that position?

Maria Eagle (Labour, Liverpool, Garston)

As Committee members will know, since 1988 designated caseworkers have been able to do certain types of work in the magistrates courts. During my visits to courts, court officers and all kinds of people who see the work that those caseworkers do tell me that they perform very well. When visiting courts, I have had good feedback about the work that they do.

The provision will enable designated caseworkers to do a much wider range of work than they have been able to do, but under the supervision of an experienced Crown prosecutors. There will be some training, as is given now, and that is at the heart of this provision. Prior to making any appearances or doing work in the courts, designated caseworkers undertake a two-week course that is assessed independently by the college of law in Nottingham. They also subsequently complete e-learning courses and have at least 15 hours of continuing professional development per year to keep their knowledge and skills up to date. It is intended that that type of training should continue.

The proposals will extend the type of work that caseworkers can do in magistrates courts to contested matters. That is the big change contained in the clause. The Crown Prosecution Service and the Department certainly intend to ensure that we provide sufficient training, guidance and ongoing continuing professional development to give confidence and ensure that the people undertaking the higher level of work in the magistrates court are properly able to do so and are properly supervised.

Nicholas Winterton (Conservative, Macclesfield)

We really must make progress now. Can we move to part 6, “Criminal law”? Could I ask those who are going to question our witnesses to be brief? Hopefully the witnesses—the Ministers and their civil servants—can be brief as well.

Harry Cohen (Labour, Leyton and Wanstead)

In relation to the offence of possession of a single extreme pornographic image, or it could be more than a single image, what evidence do the Government have to show that either watching it or participating in it is harmful to adults? I am wondering that because, in August 2006, the Government stated:

“Given the many different approaches to conducting the research and framing the questions, as well as differences in the nature of the material examined, we are unable, at present, to draw any definite conclusions based on research as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behaviour.”

The Government subsequently produced a rapid evidence assessment in September of this year, long after the Bill had been published and presumably intended to back it up, which mentioned some increased risk. It is worrying that that was produced so late in this context. In that document, however, the Government stated:

“The REA found no formal research studies of the effects on those who participate in making extreme pornography.”

Where is the evidence?

Harry Cohen (Labour, Leyton and Wanstead)

We will come on to that—

Nicholas Winterton (Conservative, Macclesfield)

We have limited time, Mr. Cohen, so you must be as quick as possible.

Harry Cohen (Labour, Leyton and Wanstead)

The measure is limited to material of a sexual nature, but some of those people who were used in the evidence that the Government have given include those who could have got violent images of a non-sexual nature, and those might have stimulated them to kill. There are thousands and thousands of horror films that show people being cut up, so why does this legislation concentrate on material of a sexual nature?

David Heath (Liberal Democrat, Somerton and Frome)

My question is on a slightly different subject. I assume that this is the correct time to make reference to the Government’s intention to insert a new clause and new schedule as an amendment to section 327 of the Criminal Justice Act 2003. This is what is sometimes referred to as Megan’s law or Sarah’s law, for which the enthusiasm of the Government waxes and wanes. Is what the Ministers are introducing effectively a Megan’s law or Sarah’s law? Will it provide information, on almost a free basis, on the whereabouts of convicted paedophiles in a community?

David Heath (Liberal Democrat, Somerton and Frome)

But there is a presumption, is there not?

Nicholas Winterton (Conservative, Macclesfield)

We have just 10 minutes. David Burrowes and Harry Cohen want to come in again, so if each of you could ask a very short question one after the other and then the Minister can respond.

David Burrowes (Conservative, Enfield, Southgate)

Can we have details of the proposals for the new offence of inciting homophobic hatred, evidence of where the present legislation is inadequate and details of how we will protect freedom of speech? What will be criminalised and what will not be?

Harry Cohen (Labour, Leyton and Wanstead)

I want to ask about prostitution, perhaps with relation to rehabilitation sessions—I think that magistrates can order three sessions. There was an advert in The House Magazine from the organisation CHASTE, which suggested that the problem began with the trafficking of women and said that the Swedish model has been a success. Has the Home Office done any research on the Swedish model? Maybe it is the men who should be sent to rehabilitation sessions, to learn about trafficking—

Nicholas Winterton (Conservative, Macclesfield)

That is quite clear.

Nicholas Winterton (Conservative, Macclesfield)

Maria Eagle to respond to Mr. Burrowes’s question.

Nicholas Winterton (Conservative, Macclesfield)

Thank you. Could we move on quickly to the final part that we will be able to cover in this sitting: part 8?

Edward Garnier (Conservative, Harborough)

I am not sure which of the Ministers is responsible.

Edward Garnier (Conservative, Harborough)

Thank you. Am I right in thinking that applications for violent offender orders can only be made to the magistrates court? [Interruption.] Yes. We are dealing with essentially a criminal injunction to prevent, or to discourage, or to deter an individual who comes within various qualifications from committing particular offences—is that right?

Edward Garnier (Conservative, Harborough)

It is granted by the magistrates court.

Edward Garnier (Conservative, Harborough)

Yes, they grant ASBOs and they may, presumably, grant prevention of serious crime orders. Now is not the time to have a philosophical discussion about the blurring of the division between the criminal law and the civil law.

Nicholas Winterton (Conservative, Macclesfield)

It certainly is not. We need to concentrate on the Bill.

Edward Garnier (Conservative, Harborough)

Yes, exactly. What concerns me is that the qualifying offences are manslaughter, soliciting murder, wounding with intent to cause grievous bodily harm, malicious wounding, and attempted murder or conspiracy to commit murder. Those are all quite serious offences that would normally be dealt with by a senior Crown court judge or a High Court judge in the criminal courts, and yet you think that it is appropriate that such applications should be made to the magistrates.

Edward Garnier (Conservative, Harborough)

These individuals are subject to the criminal law. The criminal law says that it is an offence to commit murder or to solicit murder. Why is that not adequate?

Edward Garnier (Conservative, Harborough)

You are suggesting that the law of murder is not sufficient to deter—

Nicholas Winterton (Conservative, Macclesfield)

Order. Before I adjourn the Committee, may I, on behalf of the Committee, thank all our witnesses for the courteous and full way in which they have sought to deal with the questions put to them by the Committee? Thank you very much.

Written evidence to be reported to the House

Edward O'Hara (Labour, Knowsley South)

I think that we are ready to commence the public part of proceedings. I welcome our witnesses. I remind hon. Members and witnesses that we are bound by the internal knives that we agreed this morning. That means that the first evidence session this afternoon must end at no later than 5.15 pm, the second must end no later than 6.15 pm, and the third no later than 7 pm. I hope that I do not have to interrupt either hon. Members or witnesses in the middle of their sentences, but I will do so if necessary. We must stick strictly to that timetable. It would be helpful to the Official Report if hon. Members would remember to speak into their microphones.

We will first of all hear evidence from representatives of two organisations: the Magistrates Association and the Probation Boards Association. Welcome to our meeting this afternoon. Perhaps it would be appropriate if you started by introducing yourselves, from left to right.

Edward O'Hara (Labour, Knowsley South)

Thank you.

David Burrowes (Conservative, Enfield, Southgate)

As a first general point, I am conscious of the number of pieces of legislation affecting your job at the magistrates court. What level of consultation have you had in relation to the Bill and what is your level of confidence that it will see an improvement in the magistrates court?

David Burrowes (Conservative, Enfield, Southgate)

Do you see the youth justice provisions and the generic youth rehabilitation orders as an improvement, and in what ways do you see them as deficient?

David Burrowes (Conservative, Enfield, Southgate)

A set of requirements is laid out in terms of the rehabilitation order. In terms of your practical experience, how do you see that being delivered? For example, do you see the drug treatment requirements and the fostering requirements happening?

David Burrowes (Conservative, Enfield, Southgate)

Just on one particular detail, you mention the confusion concerning reparation orders—can you amplify that? Within the requirements of our activity orders there is an element of reparation that is made. Why would you say that the reparation needs to be part of the rehabilitation order?

Edward Garnier (Conservative, Harborough)

Have you had any reaction from the Government in response your concerns?

Edward Garnier (Conservative, Harborough)

Would you like to have a reaction from the Government in response to your concerns?

Edward Garnier (Conservative, Harborough)

I tell you what, let us go as quickly as we can through the areas about which you have concerns. You mentioned the flexibility in sentencing, which you welcomed, but one of the things that has been taken away from you is the possibility of a suspended prison sentence for summary offences. It was suggested to us this morning by one of the officials from the Ministry of Justice that far too many people are getting these sentences, breaching them, and then having to go into custody to serve the custodial aspect of the sentence. I suggested to that official that perhaps one of the reasons why they are getting suspended sentences for summary offences is that they are persistent offenders and the courts have come to the ends of their tethers and there is no other option than to give them a custodial sentence, but the courts check it by making it a suspended sentence. Is that your experience?

Edward Garnier (Conservative, Harborough)

One of the things that the Government appear to be fearful of is that, for good reasons or bad, they seem to be losing control of the numbers of people in prison when there are not enough places to put them in. They are looking for ways to reduce the number of people being sent to prison by people within your association and from the Crown court. Do you think that the abolition of your power to give a suspended custodial sentence will have any bearing on the number of people that magistrates send to prison?

Edward Garnier (Conservative, Harborough)

May I ask a question of both the magistrates and Mrs. Lawrie for the probation boards? One area within the Bill dealing with youth justice that is a matter of concern—whether everybody in the Committee shares that concern is neither here nor there—is the compulsory fostering of people’s children by the state. This is apparently designed to improve the chances of reducing reoffending, particularly among children from what I would loosely, and rather pejoratively, call dysfunctional families. Do you, as a magistrate, and you, as a probation board chief executive and someone who has been a probation officer, have anything to say about the sensible nature of that disposal and the ability of the state—be it a local authority or a foster parent appointed by a local authority—to see this as a good thing?

Edward Garnier (Conservative, Harborough)

So, do I understand you correctly that you already have a power to take children, or at least to recommend to the family court that children should go into care or some other place?

Edward Garnier (Conservative, Harborough)

Although it is quite clear from a schedule to the Bill that that will not happen unless the Secretary of State says there are resources to make it happen.

Edward Garnier (Conservative, Harborough)

Has anyone told you whether there will be any such resources?

Edward Garnier (Conservative, Harborough)

If no one else has any queries, may I ask the ladies about violent offender orders, which a local authority or a police officer can apply to the magistrates court to get? Do you think that these orders to prevent people, apparently, from committing murder, soliciting murder or attempting murder—what I have described as “criminal injunctions”—are a good idea?

Edward Garnier (Conservative, Harborough)

I do not understand that either. Does the probation service think that it has adequate resources to cover violent offender orders?

David Howarth (Liberal Democrat, Cambridge)

May I go back briefly to clause 10 and the abolition of suspended sentences for summary offences? Can I ask you to take us through how a magistrates court might carry out a sentencing exercise in this type of case? The problem is this: on the one side the Government say that if we abolish the suspended sentence, that would encourage more community sentences; the argument on the other side is that, on the contrary, if you abolish the suspended sentence, you will get more immediate imprisonment sentences. So could you take us through how a magistrate might look at a sentencing problem of this sort?

David Howarth (Liberal Democrat, Cambridge)

Just to clarify this matter, the order in which the decisions are taken is such that the decision to suspend or not comes right at the end?

David Howarth (Liberal Democrat, Cambridge)

Because that, I think, creates the danger that abolishing the power to suspend will not have the desired effect. Do you see that as a possibility?

David Howarth (Liberal Democrat, Cambridge)

And it might, indeed, increase the number of people in prison?

David Burrowes (Conservative, Enfield, Southgate)

Is it correct that, if the provision were passed, and if I came before a magistrate as a joy rider charged and convicted of aggravated vehicle taking in a case in which the damage caused was £4,999, such that the offence was summary only, the magistrate would not have power to suspend the sentence, but that if the damages were £5,000.01, the offence would be an either-way offence and the power would exist? How would your members react to the lack of discretion concerning criminal damage worth less than £5,000?

Edward Garnier (Conservative, Harborough)

The trouble is that the legislation is being created, I would suggest, partly in ignorance and partly for political motives. There is nothing wrong with that—it often happens. However, given that under this new procedure there is the opportunity to get your advice, we should be grateful to have that advice. There are three Ministers listening, so if, as an experienced magistrate who represents your association, you have views that you think ought to influence the design of the legislation, I for one would be very grateful if you unburdened yourself of your concerns. There is no point passing laws—this Government pass lots of them—that do not achieve anything. Perhaps you could help us to design a piece of criminal justice legislation that actually does some good.

Edward Garnier (Conservative, Harborough)

I ask you politely.

Edward Garnier (Conservative, Harborough)

I apologise if I appear to be rude.

David Burrowes (Conservative, Enfield, Southgate)

But there is a summary and an either-way procedure for the same offence.

David Hanson (Labour, Delyn)

May I follow up on one more point on clause 10 before the hon. Member for Cambridge continues? The points that have been made will obviously be subject to debate in Committee. However, I was interested in your submission on clause 10, in which you said:

“We accept that there may be a need for further training on SSOs to re-emphasise the fact that they are a custodial sentence.”

That seems to me to indicate that, irrespective of the proposals in the Bill, there are currently some identified problems in relation to the understanding or implementation of suspended sentence orders. Could you outline what those concerns are?

David Howarth (Liberal Democrat, Cambridge)

May I briefly move on to clause 58, which concerns the extension of powers of non-legal staff—designated caseworkers—in court? Obviously the objections to it come, principally, from the trade unions for lawyers, or the professional bodies, as they are otherwise known. I was interested that the Magistrates Association also has had concerns about the extension of the role of non-professional-body staff in court. I wondered if you could explain the basis of your concerns to the Committee.

David Howarth (Liberal Democrat, Cambridge)

As I understand it, the Government’s position is that that sort of problem will be reduced if the powers are extended rather than left as they are. In practice, at what point or in what sort of case does the problem arise, and could you argue that by giving more power to designated caseworkers, you will come across fewer circumstances in which the particular problem of transferring cases might come up?

David Burrowes (Conservative, Enfield, Southgate)

On the subject of referral orders, could you expand on the issue that you raised in your written submission about the lack of discretion in respect of the relatively serious cases of those who have committed first offences; they will receive either a referral order or custody, and there are no options in between for a constructive community sentence?

David Burrowes (Conservative, Enfield, Southgate)

You said the type of cases that that would involve—

Nick Hurd (Conservative, Ruislip - Northwood)

On that point, I have heard exactly that frustration expressed to me directly by magistrates in Uxbridge. May I press you regarding your statement that you do not understand the response to your policy? What is that response?

Edward Garnier (Conservative, Harborough)

May I encourage you to keep pressing?

Edward Garnier (Conservative, Harborough)

Thank you. I want to talk a little bit with you—indeed with both sets of witnesses—about the cautioning system that the Government are altering by this legislation. Are probation employers and magistrates broadly in favour of the greater use of non-court disposal by police officers and officers of the Crown Prosecution Service of work that has in the past come before the magistrates court?

Edward Garnier (Conservative, Harborough)

What is the basis of your concern?

Edward Garnier (Conservative, Harborough)

What do the probation professionals think about this?

Edward Garnier (Conservative, Harborough)

Beyond the point about the growing appearance of the police acting as the court, as opposed to merely gathering the evidence and giving it to the prosecuting authorities for the courts to assess, is there a feeling among your organisations that this informalisation, even among youngsters, is leading to the response, “Well the criminal justice system clearly isn’t all that important and we don’t really need to take the laws all that seriously, if all we get is a caution.”? I appreciate that the modern cautions bring with them additional sanctions if you fail to comply with them, but do you have those sorts of concerns or am I misunderstanding you?

David Heath (Liberal Democrat, Somerton and Frome)

Following up on that point, it is interesting that the police appear to take the same view about the conditional caution scheme and echo some of the points made by the probation service. I am intrigued by a statement in the Magistrates Association evidence, that

“There is some evidence to suggest that such measures are not always imposed any more quickly than if dealt with in a court.”

Given that the principal argument for this scheme is expedition, reducing the workload on the courts and ensuring a quick disposal, what evidence is there to support that contention? It is a very interesting observation.

David Heath (Liberal Democrat, Somerton and Frome)

And without the benefit of the advice of the youth offending team?

Edward Garnier (Conservative, Harborough)

May I again take you on to the street offences in clauses 71 to 73, which affect both of your associations? I suspect that we see a well motivated attempt to produce a more humane and contemporary approach to prostitution. Clearly, what we are not talking about is anything other than many women who are on the streets in order to feed a drug habit. In the olden days, you had a queue of prostitutes brought before the court and fined £5 one day and £5 the next. Out they would then go to earn that £5. You know the story. What are your views on the counselling sessions that the Government want to introduce to help with the problem?

Edward Garnier (Conservative, Harborough)

I will invite the other two ladies to respond if they want to. When this measure comes into force, are you happy that your service will be able to provide the necessary numbers of people—either directly through the state probation service or other providers of supervision following the Offender Management Act 2007—to carry out the necessary work once the magistrates have disposed of the case in that particular way?

Edward Garnier (Conservative, Harborough)

Suppose you were writing a pre-sentence report in relation to this sort of offence, would you advise magistrates not to consider this way of dealing with it until the resources were in place?

Edward Garnier (Conservative, Harborough)

That seems to be the theme of the Bill, in so far as it has one. The Secretary of State has to certify on a number of occasions that something cannot happen unless resources are available. He does not have to certify whether sufficient personnel or resources are available in relation to clauses 71, 72 and 73, but he does in relation to some of the menu of answers to youth justice issues. Have you had an opportunity to express your views to the Government about the resources aspect of this part of the legislation, other than in your written submissions?

Edward Garnier (Conservative, Harborough)

So, would I be putting words into your mouth if I were to draw from our conversation that you would prefer the implementation of some of the sections of the Bill to be delayed until you were sure that there are adequate resources to do the job?

Vernon Coaker (Labour, Gedling)

Is the Magistrates Association in favour of the rehabilitative alternative that is being proposed? Do you agree that it is a good measure? Is your point that, although you are uncertain about which resources are available to make it a reality, in principle you think that the rehabilitative alternative is a good one?

Vernon Coaker (Labour, Gedling)

My understanding is that you would be able to give another rehabilitative order if you felt that that was appropriate or to have used a fine in the first instance if you thought that was more appropriate. Thank you for clarifying that because I just wanted to be clear that in principle it was an alternative that was worth while having available to you, provided that the resources were available to make it happen.

Vernon Coaker (Labour, Gedling)

Thank you very much.

Edward Garnier (Conservative, Harborough)

Could I ask you about another issue in relation to your powers which is dealing with people who are not before the court? There are new provisions which adjust the default position. The policy behind the new Bill is that you will try someone in their absence, not as a matter of course, but more often than happens at the moment. Is that your understanding of those provisions?

Edward Garnier (Conservative, Harborough)

It seems that powers are already given to both Crown court judges and magistrates to deal with people in their absence. Perhaps I should have expressed myself more clearly. I am not entirely sure why you need additional powers to do what you probably are doing already. But I am interested to hear what you have to say about the sending of people into custody in their absence, or at least sentencing them to custody in their absence and whether you think that is a particularly sensible suggestion or power to give you.

Edward Garnier (Conservative, Harborough)

Are the probation boards concerned that there may be cases where a person has started off in front of the court and then absented himself for one reason or another? Irrespective of the reason why the person is not there, there will be no opportunity to prepare probation advice and pre-sentence reports for the sentencing bench. Is this a concern that you have?

Edward Garnier (Conservative, Harborough)

Let me put my cards on the table. I sit as Crown court recorder for four weeks a year. Probably in my four-week stint on at least one occasion somebody will simply not turn up. It is normally on my first Monday when I am feeling particularly friendly. You issue a bench warrant or you make inquiries about the absence of the defendant. The problem is not in the court process; the problem is finding a police officer to bring the man or woman in. There seem to me to be practical policing measures which could probably solve the issue rather than writing additional clauses in a Bill giving you powers to do things which the courts seem to deal with quite sensibly anyhow.

Edward Garnier (Conservative, Harborough)

I am sorry to hog this interesting session, but I wish now to deal with tariff setting, recall and the length of time that people spend in prison. That does not affect the magistrates directly at present because, despite provisions of the 2003 Act being intended to increase their sentencing powers to 12 months, that part has not yet come into force—along with about half the rest of the Act, but there we are.

What are the views of the Probation Boards Association on the changes to the law on tariff setting and the recall of long-term sentence prisoners back into custody, and the inter-relationship between the probation boards and the Secretary of State when it comes to release and recall, and what looks as though has greater input from the Secretary of State as a politician to affect the implementation of the sentence?

Edward Garnier (Conservative, Harborough)

There is that and other measures in the earlier part of the Bill on tariff setting. Clause 12, “Indeterminate sentences: determination of tariffs”, is rather complicated. It obviously could have a bearing on the release date if there were sufficient courses for the offenders to get on to so that they could go before the relevant release authority and could come out before you had to supervise them.

David Hanson (Labour, Delyn)

Do you agree that the legislation allows for further recall if behaviour is still poor?

Edward Garnier (Conservative, Harborough)

You mentioned your concerns about the criminal justice policy and the implementation of some of the provisions in the Bill being driven by the need to deal with the prison population. One of the other things that the probation boards and probation services have to supervise, in addition to those who are released early on licence, are those who are released from custody on licence under the ECL system. At the moment they are released 18 days early, if they belong to a certain category of prison, and most of these people are relatively short-term prisoners. Could you explain what the probation service does in the last 18 days of a custodial sentence to help resettle the prisoners in the outside world?

Edward Garnier (Conservative, Harborough)

I wanted to ask both groups about the power to evict people from their homes or places of occupation if they are guilty of antisocial behaviour. It is essentially a measure designed to close down crack houses, as I understand it, but I think that the Bill will take it a bit more widely than that.

As magistrates who will be invited to make the orders, are you happy that the social consequences beyond the immediate eviction of the troublesome person have been considered by your association and those whom you wish to influence? Are the probation boards sufficiently enthused by that sledgehammer, or will it create splinters that we need to think about?

Edward Garnier (Conservative, Harborough)

I suspect that some probably will be.

David Hanson (Labour, Delyn)

It has been suggested that we should include in the youth offending order the potential for an alcohol treatment element. Do you have any views on that?

Harry Cohen (Labour, Leyton and Wanstead)

Can I ask you about the age of criminal responsibility? At 10, it is very low in this country. How does it impact the situation? The Bill contains youth rehabilitation orders. How do the two interact as far as what you have to do, particularly the magistrates’ side of things? For a younger age, are there certain aspects of the YROs that you would use, as opposed to others for a later age?

Edward O'Hara (Labour, Knowsley South)

If there are no more questions for this panel, I thank them for their contribution and invite the next set of witnesses to take their places.

I invite you to introduce yourselves.

Edward O'Hara (Labour, Knowsley South)

Thank you very much. I think that Philip Hollobone wishes to lead off.

Philip Hollobone (Conservative, Kettering)

In line with your direction to concentrate on the latter part of the Bill if we can, Mr. O’Hara, I am particularly interested in part 11, “Special immigration status”. I know that that is not something that the Police Federation concentrated on in written evidence, but I wish to draw out from the witnesses the position, as they understand it, on the apprehension of illegal immigrants at large in the United Kingdom. I want to ask about that because it seems to me that there is a good opportunity in the Bill, if the current law is not satisfactory, to tighten up what I believe is a loophole.

There was a case recently in Northamptonshire in which 16 illegal immigrants jumped out of the back of a lorry. Three were apprehended by Northamptonshire police, who telephoned the Border and Immigration Agency only to be told that they should encourage those three people to make their own way to the immigration office in Croydon. You can understand the outrage that that caused in Northamptonshire. I want to ask for your association’s view of how the law is meant to operate and how it actually operates in practice.

Philip Hollobone (Conservative, Kettering)

So you have no power to hold these people.

Philip Hollobone (Conservative, Kettering)

My second question on immigration issues is based on evidence submitted by your colleagues in the Police Federation who have recommended the creation of legislation that would allow a constable to demand of a person proof of identity when the constable had grounds to believe that the person in question intended to enter or leave the United Kingdom. In their evidence, they say that, currently, officers only have the right to request to see passports, and that many individuals—for example, those subject to a football banning order—are acutely aware of that and decline. Is that a concern that you share?

Vernon Coaker (Labour, Gedling)

The point of having these evidence sessions is obviously to collect evidence. Part of the point of Mr. Hollobone raising that issue was so that I heard it in front of Jan Berry, so I will look at this issue.

Edward O'Hara (Labour, Knowsley South)

That is useful.

Philip Hollobone (Conservative, Kettering)

I am most grateful for the Minister’s response.

In your view, does the extension of the adult conditional cautioning scheme to young people aged between 16 and 17 offer the chance to deal with low level offending in a way that ensures that offenders receive the right level of intervention?

Philip Hollobone (Conservative, Kettering)

Are Crown Prosecution Service prosecutors suitably equipped to deal with youth conditional cautions?

Philip Hollobone (Conservative, Kettering)

What role do you expect youth offending teams to play in the youth conditional cautioning scheme?

Philip Hollobone (Conservative, Kettering)

In that regard, how would you expect the cautioning scheme to interact with the final warning scheme?

Philip Hollobone (Conservative, Kettering)

What is your reaction to the proposal to introduce a new criminal offence for inciting homophobic hatred?

Philip Hollobone (Conservative, Kettering)

In that regard, what is your reaction to the potential for extending the proposal to include hatred against transgender and disabled people?

Edward O'Hara (Labour, Knowsley South)

I would like to bring a Minister in on this point. Maria Eagle.

Maria Eagle (Labour, Liverpool, Garston)

Obviously, at present you have not had the advantages—nobody on the Committee has—of seeing the draft of the clause as it is intended. However, you seem to be saying that the provisions in respect of incitement to racial hatred are well understood and work well. Is that your experience?

Maria Eagle (Labour, Liverpool, Garston)

So your position would be that as long as the provisions are clear, sensible and strike an appropriate balance, that would assist your members in their enforcement of the legislation.

Edward O'Hara (Labour, Knowsley South)

I have a lengthening queue of Committee members who wish to come in and I think I ought to call some now. Phil Wilson first.

Phil Wilson (Labour, Sedgefield)

I just want to ask a couple of questions in respect of the antisocial behaviour part of the Bill. On closure orders, if premises are closed down, do you think that the problem could just be displaced to another area or on to the streets so the problem itself is not actually resolved?

Phil Wilson (Labour, Sedgefield)

I have a couple of other points. Are you satisfied that these orders, when they come into effect, will not unfairly affect children, for example?

Phil Wilson (Labour, Sedgefield)

Just one more point. In your submission, in paragraph 20, I think, you highlight that closing down premises in an effective manner is a resource-intensive exercise. Could you just amplify that a little bit?

Phil Wilson (Labour, Sedgefield)

But, in principle, you generally agree with it?

David Heath (Liberal Democrat, Somerton and Frome)

I would like to deal with quite a narrow issue in clauses 104 and 105: the provisions on NHS premises. This ought to be a no-brainer. Obviously, no one wants to see disorder in a hospital, and we want to have effective offences, but the more I thought about it, the more difficulty I have in understanding what is missing at the moment. Are there instances in which your members are asked to attend hospitals in response to disturbances or potential assaults on NHS staff and feel constrained by a lack of existing powers?

David Heath (Liberal Democrat, Somerton and Frome)

I certainly would not argue with that. I just wonder why it is so constrained, in that case, because many people in public service face the same sort of threats and risk of disturbance in other contexts. This particular provision applies only to hospitals, rather than all NHS premises, so GP surgeries are not, I am afraid, covered by this offence.

David Heath (Liberal Democrat, Somerton and Frome)

There is an argument for aggravated offence, which I believe you mentioned.

I am sorry, but there is a further practical difficulty. This is a small point, but it would be helpful to have a professional view. There is an exemption for a person who is obtaining medical advice, treatment or care. Most people on NHS premises fall into that category. Do you think that a police officer attending a hospital would be able satisfactorily to ascertain whether the person is attending for care, treatment or otherwise, and at that point therefore would not be able to use the offence? Is that a difficulty that is unnecessarily prescriptive?

David Heath (Liberal Democrat, Somerton and Frome)

I am surprised that you do not see a difficulty in this exemption, because a person who behaves appallingly at the hospital has only to be there for the purpose of obtaining care to be exempt from the offence.

David Heath (Liberal Democrat, Somerton and Frome)

I just need to be persuaded that the Bill does not make it more difficult rather than less.

Edward Garnier (Conservative, Harborough)

I can probably help David Heath. Clearly, no police officer wants to be accused of interfering with the medication or the application of medical treatment to someone who then, because of his removal, comes to some harm. Obviously, that is a liability issue that is of concern to the police.

Edward Garnier (Conservative, Harborough)

I fully sympathise with the need to protect health staff and people working on NHS premises and so forth, just as one would want to protect people working in the Department for Work and Pensions offices or on the public transport system. That is not an issue. But are not the outlined offences in this part of the Bill already covered by existing legislation? You can arrest a man for acting in a way that breaches the peace.

Edward Garnier (Conservative, Harborough)

So are we just writing friendly legislation because it looks nice, or do you think that it has a practical purpose?

Sally Keeble (Labour, Northampton North)

I wanted to ask about the proposal that you mentioned, which has properly been put forward as an amendment previously and presumably will be again and which is about giving police officers a power to require people to produce passports. How would that work?

Sally Keeble (Labour, Northampton North)

But there is no requirement on people in the UK to have passports and at present we do not have ID documents. People who evade border controls certainly do not have any papers usually, so how practically do you enforce it? The next part is: what is the sanction? I agree you do not want police stations full of people who have been picked up for not having passports.

Sally Keeble (Labour, Northampton North)

Can we just go back, because it is quite an important point? If people who evade border controls and appear in the country are asked about what sort of papers they have but they do not have any, at present there are no powers to oblige them or that the police have to insist that they produce any. How would you, then, practically deal with somebody? Would you require them, as with showing their driver’s licence, to come back at a later date, in which case you have the problem of them hopping off and disappearing and you not seeing them again? Or would you have an ability to take them to premises? How would you practically deal with them?

Sally Keeble (Labour, Northampton North)

Legislation has to apply to the whole country, not just the borders, so if you have a requirement on people to produce a passport or, almost by definition, ID at the borders, the same rule would have to apply in-country, so the people who had jumped off the back of lorries or whatever else would be required to do it in the middle of the country, miles away from the border. How would you manage that kind of power? I understand completely what the issue is: it is trying to find a way to deal with it that does not end up with you having to arrest people and take them to police stations.

David Hanson (Labour, Delyn)

I want to ask a question relating to the submission that you made in connection with youth rehabilitation orders. In paragraph 5 and the conclusion of your helpful submission, you say that for the purposes of compliance with the youth rehabilitation order, you wish to see a clause added to the Bill to enable the use of reasonable force for those with custody of the relevant person or parental responsibility. I should welcome an outline of your initial thinking on that.

The rest of the debate is in Hansard.