Criminal Justice and Immigration Bill

Public Bill Committee, 20 November 2007.

Further written evidence to be reported to the House

Clause 10

David Burrowes (Conservative, Enfield, Southgate)

Welcome to the Chair, Mr. Cook. I welcome everyone back to the Committee. I have been away from its rigours having an operation on my hand, facing my own particular torture in trying to straighten my finger, so it is nice to be back facing a different sort of torture now. We shall see how we progress.

While I have been on the operating table at my fine local North Middlesex hospital, the Ministers have been drafting several amendments to keep us all busy, but has the Minister of State had the opportunity to look at the Prison Reform Trust leaflet, as I encouraged him to do as part of his recess reading? It goes through the sentencing process in detail and makes particular reference to policy developments. As I said at a previous sitting, we are especially concerned about the interference in sentencing jurisdiction and the discretion that has been circumvented by legislation, which has caused the judges’ concern that their hands were being tied. I drew attention to the florid, pejorative and perhaps unparliamentary comment by one judge, when he said how judges look so—expletive—

“silly in court, when we can’t sentence properly because some civil servant has second-guessed us.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 25 October 2007; c. 257.]

Clause 10 is very much in the realm of s. It restricts the use of suspended sentence orders to indictable and either way offences, and to remove suspended sentence jurisdiction when dealing with summary only offences. When giving evidence, concern was expressed by the Magistrates Association and the Police Federation, which opposed the clause. The Magistrates Association said that it

“can see no logical or good reason for this proposal”.

The Police Federation does not support the abolition of suspended sentences, and says that it supports the

“greater use of community sentences”,

and believes that

“suspended sentences provide magistrates with an additional sentencing incentive which can effectively act as a deterrent.”

It therefore recommends that the proposal to remove the option be reconsidered. I endorse the Police Federation’s view.

The Magistrates Association opposes the clause for two particular reasons. The obvious reason is that when dealing with a suspended sentence, one is dealing with an offence that has passed the custody threshold. As the Committee will be aware from the evidence sessions, the Government’s case is that research has shown that suspended sentence orders have been overused and have led to an increase in the prison population. However, in clause 10 and others, the Government are dealing in the wrong way with the problem of prisons being full to capacity. The Magistrates Association says that the jury is very much still out on the research, and questions whether it is sufficiently robust to show that suspended sentence orders have or will have a significant impact on the prison population. It makes the point that a suspended sentence order is imposed when the custody threshold has been reached.

Indeed, the Sentencing Guidelines Council makes it clear on page 24 of its guidance that a suspended sentence is a sentence of imprisonment, imposed when that threshold has been passed—when an offence is so serious that it merits a custodial sentence. The guidelines go on to give helpful recommendations on what magistrates and judges should do when they are dealing with such offences. They make the point that, in those cases,

“requirements can be imposed during the supervision period and the court can respond to breach by sending the offender to custody. The crucial difference is that the suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option.”

The relevant questions to ask, the guidance states, are

“(a) has the custody threshold been passed?

(b) if so, is it unavoidable that a custodial sentence be imposed?

(c) if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)”.

That is the position we are in. The clause is designed not to allow the power to suspend to be available. That will lead any sentencer to deal with the three questions within the guidance. Has the custody threshold been passed? Yes. Is it unavoidable that a custodial sentence be imposed? Yes. If so, can that sentence be suspended? They would have to answer, because of this clause: no, the sentence cannot be suspended. So, inevitably, to be true to the guidance from the Sentencing Guidelines Council and the statutory provisions, they would have to send the defendant to prison. Therefore, the argument that the clause would lead to a reduction in the prison population is not properly made out.

Philip Hollobone (Conservative, Kettering)

I do not have the privilege of being a practising lawyer, as my hon. Friend does, so my thoughts may be a lot more simple on these things, but surely it is screamingly obvious that the Government’s efforts will not achieve what they intend to achieve? The evidence given to the Committee on 16 October by the chief executive of the Magistrates Association could not be clearer. Cindy Barnett and Sally Dickinson themselves made it very clear that the measure will have no effect at all on custodial sentences and will actually ensure that more people go to prison who otherwise would have been kept out of it. At a time when the national prison population has never been higher, is this not simply the most unfortunate and almost crazy way for the Government to proceed?

David Burrowes (Conservative, Enfield, Southgate)

I could not put it better than my hon. Friend has. It is crazy. The Government may well think that we would say that, but surely, if the Magistrates Association and the Police Federation are saying that it does not make sense, the Government should listen and reconsider?

Frank Cook (Labour, Stockton North)

Order. I sympathise with the time spent correcting one’s digits, but I think that in that time the hon. Gentleman may have forgotten that I am partially deaf and that I like arguments to be expressed clearly and through the Chair.

David Burrowes (Conservative, Enfield, Southgate)

I am grateful to you, Mr. Cook. As a solicitor, I should know that I should address the chairman of the magistrates. I would not want to get on the wrong side of the person judging.

Let us try to be charitable to the Government. Perhaps they will argue that the problem is that too many suspended sentence orders have been made with too rigorous requirements, which have been breached and have led to custodial sentences inevitably being imposed. But I again refer to the Sentencing Guidelines Council publication “New Sentences: Criminal Justice Act 2003”, which says on page 25 that

“Because of the very clear deterrent threat involved in a suspended sentence, the requirements imposed should generally be less onerous than those imposed as part of a community sentence. A court wishing to impose onerous or intensive requirements on an offender should reconsider its decision to suspend sentence and consider whether a community sentence might be more appropriate.”

We, therefore, have guidance already; we do not need additional legislation to try to circumvent magistrates or judges. They have the discretion to decide when more rigorous requirements of supervision are needed than could be dealt with by way of a community penalty.

The first problem with the clause is that when the custody threshold has been reached, a custodial sentence will follow without suspension. The other point made quite properly by the Magistrates Association is that the proposal seems to be one of the first to differentiate

“so radically in sentencing disposals between summary and either-way matters.”

That would lead to an anomaly, one that Cindy Barnett, the chairman of the Magistrates Association, referred to in an evidence-taking session. It occurs when one is dealing with a summary only case and an either way case. I will take the example of a defendant charged with joyriding or aggravated vehicle taking, which could be an either way case. However, this particular defendant ended up smashing his vehicle into another vehicle, resulting in damage worth less than £5,000—£4,999 to be exact. The case therefore had to be determined as a summary only, magistrates only case. The defendant also drove while disqualified and was driving under the influence of excess alcohol, at three times the limit. All of those factors together place him above the custody threshold; the offence is so serious as to merit custody.

At the same court on the same day, another joyrider appears, again charged with aggravated vehicle taking, driving while disqualified and driving under the influence of excess alcohol. That defendant was involved in smashing up his own vehicle and another vehicle, causing damage worth £5,000—£1 more than the other defendant at the same court caused. Under the proposed legislation, the latter case would be dealt with as an either way offence. The two cases would come before the same magistrates court and the magistrate would deal with those two defendants differently, but both cases exceed the custody threshold and a custodial sentence would be inevitable. However, let us suppose that the magistrate was also told that both defendants, for example, suffered from a terminal illness—that there were mitigating circumstances to merit the magistrate deciding to suspend the sentence.

In the case of the defendant who caused damage worth less than £5,000, the court would have its hands tied; it would be unable to suspend the sentence for that defendant. As the defendant was suffering from a terminal illness, a community penalty would not be suitable, so the court would be left with two options: a conditional discharge or a custodial sentence. Given the severity of the case, the court would be hard pushed not to impose a custodial sentence. In the case of the defendant who caused damage that amounted to £1 more in costs, under the proposals the court would have discretion to impose a suspended sentence. What an anomaly. The chairman of the Magistrates Association said of such cases:

“I think that the bench involved would follow the law absolutely in both cases in relation to sentencing, but would be very aware of the anomaly caused by the legislation. As a general rule, as has been said, we would prefer more rather than less discretion.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 37, Q78.]

The Minister must tell the Committee what evidence there is just justify for creating such an anomaly and disparity.

Continuing to deal with those two examples, the disparity is made worse if the joyriders had gone into a shop and stolen a Mars bar. The defendants would be charged with theft and their cases would be treated as either way offences. The magistrates would then have powers to suspend the sentence because an either way offence is included in the summary only offences. Nevertheless, that would be a convoluted way to sentence. The magistrates would have to rely upon the relatively less serious offence of theft of a Mars bar to put the defendant into the category of cases that can receive suspended sentences. That does not make sense, and the Government have not laid out evidence that they need to reduce the discretion of magistrates courts.

It is worth us spending some time on the clause because it is an example of many clauses that have not been properly thought through. Such clauses are a response to the Government’s concerns about prison overpopulation, but they seek to deal with the problem in the wrong way and in a way that has not properly taken account of or listened to the people in the field—practitioners, magistrates and police—who wish to persuade the Government not to follow a course of action for the sake of over-legislating. I therefore want the Committee to vote against the clause standing part.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you to this little Committee of ours, Mr. Cook. The Criminal Justice and Immigration Bill is a delight to return to after our short break.

I hope that we will be able to make quick progress at times today, but we cannot allow clause 10 to pass without serious comment. I will echo some of the concerns expressed by the hon. Member for Enfield, Southgate. Initially, I welcomed the clause. At first sight, it seemed eminently sensible that the Government should wish to encourage the use of community sentencing and discourage the use of suspended custodial sentences in preference to community sentences. I understood where the Government were coming from. However, I do not accept the argument that we should restrict the discretion of the courts in order to meet the shortcomings of the prison estate. That seems to be entirely wrong, and I am concerned by the comments that the Lord Chief Justice expressed only last week on that front. It seems that we are increasingly limiting the discretion of the courts simply because of the Government’s inability to provide the necessary prison places. I have frequently expressed my own views on how we could get around that problem: rather than build more prisons, we should build other secure institutions to remove from prison those people who should not be there. However, that is a debate for another day.

Closer examination of the Government’s argument for the clause reveals that they cannot possibly achieve those objectives. That is why we are asking the Ministers to think again. I do not think that they have looked at their proposals’ consequences for what actually happens in a courtroom setting. I will return to the argument made by the hon. Member for Enfield, Southgate and refer to the advice that is given to magistrates. I would have hoped that the Ministers looked at that advice before embarking on this proposal.

As we know, responsibility for the training of magistrates and full and part-time judges in this country lies with the Judicial Studies Board. The Judicial Studies Board helpfully provides advice to magistrates in the form of the “Adult Court Bench Book”, which sets out in explicit terms how magistrates are to approach the difficult area of sentencing. The “Adult Court Bench Book”, which magistrates are required to have regard for in their decision making, first states how they are to assess the sentencing threshold, a point to which the hon. Gentleman referred. I refer the Minister to page 49—he may not have a copy about his person, so I shall read out the relevant part for his benefit. The heading is: “WHAT LEVEL OF SENTENCING ARE YOU CONSIDERING?” The subheading is: “Which sentencing threshold has been passed?” It then sets out the various levels that the magistrate is required to consider. The lowest sentence available is

“Absolute or conditional discharge—the offence does not merit the imposition of immediate punishment.”

The second tier is

“Fine—the offence merits an immediate punishment, but is not serious enough to warrant the restriction of liberty involved in a community sentence.”

The third tier is

“Community sentence—the offence is serious enough to warrant a restriction of liberty, but not so serious as to justify a custodial sentence.”

It is only at the fourth tier that we get to the point of a custodial sentence, if

“the offence is so serious that neither a fine alone nor a community sentence can be justified.”

Beyond that there is a further tier:

“Committal to the Crown Court for sentence”,

if the offence warrants a sentence that a magistrate would not have the power to impose.

At no point during that initial consideration does the magistrates bench consider whether a suspension of the sentence is or is not appropriate. It merely decides whether the severity of the offence merits a custodial sentence. It is only once that decision has been reached that the magistrate can make a second decision, on whether that custodial sentence could be suspended, served intermittently or shortened commensurate with the gravity of the offence.

It is possible that the Minister intends that alternative advice be given to magistrates on the hierarchy of offences, I do not know. However, in the absence of other clear advice, the consequence of clause 10 as it stands is that a magistrate can take a decision only on whether the gravity of the offence requires a custodial sentence; he or she does not then have the capacity or the discretion to say that that sentence should be suspended. Therefore, the automaticity of a custodial sentence becomes absolute. Far from reducing the number of offenders who are sent to prison, the clause would increase it. That is exactly the point made by the hon. Member for Enfield, Southgate, which I seek to amplify.

I think that the Minister has got the measure wrong—not intentionally; no one intends that to be the consequence, but the consequence will not be what is expected. Given the clear advice from the Magistrates Association, from practitioners and from everybody else who knows about the subject, it would be sensible of the Minister to think again. If the clause will not achieve what we want, perhaps it should be taken away and more work be done on it. In its current state, the clause will not achieve its objectives.

David Burrowes (Conservative, Enfield, Southgate)

Does the hon. Gentleman endorse the suggestion made by magistrates that the concern, if there is one, could be met not by removing their discretion, but by encouraging them to have training to apply existing legislation properly?

David Heath (Liberal Democrat, Somerton and Frome)

I think that that is right. I always resile, where possible, from reducing the discretion of courts, because only a court hears the circumstances of an individual case. However, if there is a problem with the interpretation of the present rules, and the Minister has a genuine concern—and I am sure that he does—about that, it is a matter of returning to the Judicial Studies Board and recognising that the problem needs to be addressed with the magistrates benches. They need to understand that our intention is to use community sentencing more and suspended sentences less. Perhaps we need a rewriting of the entire hierarchy of consideration of sentencing.

That would be a radical step, but it is not impossible. What is impossible is to reconcile clause 10 with the current advice given to magistrates on sentencing and the outcome that the Minister hopes to achieve. For that reason, I shall join the Conservatives in voting against the clause, unless the Minister can assure us that he will take it away and rewrite it.

David Hanson (Labour, Delyn)

I welcome you to the Chair, Mr. Cook, for what I understand may be a temporary sojourn today. I hope that you enjoy our deliberations. Could I also welcome my hon. Friend—in this case—the Member for Enfield, Southgate on his return following his injury and operation over the short recess period between the end of the last session and the beginning of this one. I suppose that we are technically a year on from our last consideration of this matter.

Sadiq Khan (Labour, Tooting)

It certainly feels that way.

David Hanson (Labour, Delyn)

My hon. Friend the Member for Tooting has pinched my punchline.

Maria Eagle (Labour, Liverpool, Garston)

Not for the first time.

David Hanson (Labour, Delyn)

No, not for the first time. I welcome all hon. Members back to the Committee for what I hope will be a productive and—dare I say it?—speedy sitting.

I fully recognise the points that have been made. Obviously, both the hon. Members for Enfield, Southgate and for Somerton and Frome have prayed in aid evidence that the Committee received before this line-by-line scrutiny stage. There are certainly points within that evidence that are worthy of reflection.

The clause, as hon. Members know, will remove the criminal courts’ power to impose a suspended sentence order for a summary only offence. It will not affect the power to impose immediate custody for those offences and the courts will still be able to impose suspended sentence orders for either way or indictable only offences, and, as was mentioned by the hon. Member for Enfield, Southgate, for a summary offence where it is sentenced together with an either way or indictable only offence.

We have given serious consideration to these matters. It is part of the Government’s drive to examine how we can achieve greater use of community sentences and I accept that that will have some impact upon the prison population. Both the hon. Members who have spoken so far have mentioned the prison population. They will know that, at the moment, there are just over 81,000 people in prison.

Edward Garnier (Conservative, Harborough)

Eighty-one thousand five hundred.

David Hanson (Labour, Delyn)

Eighty-one thousand five hundred; that was a helpful intervention by the hon. and learned Member for Harborough. The maximum capacity for the prison population is approximately 82,000. I believe that we must examine how we can avoid custody for individuals, particularly where—I will argue this case—whether they go to prison is a marginal decision.

The use of suspended sentence orders has increased dramatically since their introduction in April 2005. Recently, more than 3,500 such orders per month have been given by the courts, of which about 40 per cent. are for summary only offences, which the clause deals with. Although sentencing trends show a small drop in sentencing of immediate custody, that is greatly exceeded by the increase in suspended sentences, which suggests that many of those sentenced to a suspended sentence order would previously have been sentenced to a non-custodial sentence. That is the point that I wish to make. I accept the points that were made earlier about the guidance that is given, but I contend that many of those who are now receiving suspended sentence orders would have received a community sentence before.

May I pray in aid Lord Phillips of Worth Matravers, the Lord Chief Justice? Only last week, on 15 November 2007, in a speech to the Howard League for Penal Reform, he said:

“The seriousness of the offence determines whether it crosses what is known as ‘the custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide border-line area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. This is particularly true in the case of Magistrates”.

Edward Garnier (Conservative, Harborough)

I was there, listening to the Lord Chief Justice as he gave the Cripps lecture, sponsored by the Howard League for Penal Reform and Clifford Chance. It was a very thoughtful speech, ranging across quite a lot of issues relating to criminal justice policy and sentencing.

However, the point that the Minister of State must get to grips with is the one that was revealed during our evidence session, when Ellie Roy was giving evidence and she quoted the 40 per cent. figure. The Minister of State may remember that I asked Ellie Roy about that figure and specifically whether she had done any unpicking of that figure, to analyse why, in 40 per cent. of cases, magistrates were sentencing in the way that she described in our evidence session and the way that the Minister of State now describes. Repetition of the figure does not help us; we need analysis of the basis upon which that 40 per cent. figure is arrived at. I am not yet sure that the right hon. Gentleman has done that analysis.

May I finish by making another point? I appreciate that, as a recorder, I do not try summary offences unless they are sent up on an either way basis from the magistrates court, but I can assure the Minister of State that the power to give a suspended custodial sentence is one of the most valuable weapons at the disposal of a criminal justice system. If he removes it from the magistrates court he would do great damage to the ability of the courts to sentence appropriately. I urge him to think carefully about this aspect of the sentencing regime before he resists the Opposition’s arguments.

David Hanson (Labour, Delyn)

I am, as ever, grateful for the hon. and learned Gentleman’s intervention. It goes to the heart of the potential difference between us. I believe that he and his hon. Friend the Member for Enfield, Southgate wish to see greater use of community sentences and people avoiding custody. My judgment, and that of the Lord Chancellor and his predecessor my noble Friend Lord Falconer, is that this will result not in up-tariffing to custody but in down-tariffing to more community sentences. That is the heart of the disagreement between us on this.

That is a judgment that we have made and it is a judgment that will ultimately be examined by the test of time. But that judgment is one that we have come to. I believe it will result in stronger use of community sentences rather than going to automatic custody for the reasons Lord Phillips laid out in his lecture last week. There is an element of discretion for those sentences which allows a judgment to be made which, based on the exercise of the cases we have looked at to date, will result in down-tariffing to community sentences rather than custody.

David Burrowes (Conservative, Enfield, Southgate)

Did not the Lord Chief Justice make the case not for new legislation in this regard, but for properly applying existing guidance and not to remove the discretion of the judiciary and magistrates in any way? So if there is a concern by all to down-tariff, it can be dealt with properly through the guidance to which we have already referred today rather than by removing another power or string from the bow. Finally, is there not a concern that the National Association of Probation Officers estimates that the abolition of the suspended sentence for summary offences may increase the prison population by 1,000?

David Hanson (Labour, Delyn)

Again, this is a matter of judgment. This is our judgment and there is a different judgment based on different experiences. I am simply telling the Committee that the judgment of the two Lord Chancellors who have looked at this since May and my judgment as the Minister is that it will result in greater use of community sentences rather than prison places. We expect that if we do not remove the clause the trend will, over the next two years, lead to potentially an extra 400 prison places being used by people who are on suspended sentence orders under the existing legislation.

Edward Garnier (Conservative, Harborough)

Four hundred?

David Hanson (Labour, Delyn)

Four hundred. I am not sure that that is a useful use of prison resources. I will happily give way to the hon. Gentleman.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister must take my assurance and that of others that we agree with him on this. There is an argument for greater use of community sentencing as opposed to suspended sentences. But that is not the consequence of the clause. Would the Minister address the issue of the advice that is given to magistrates and the hierarchy within sentencing procedure? Unless he addresses that he cannot possibly achieve the objective that he and I share.

David Hanson (Labour, Delyn)

I am grateful that the hon. Gentleman shares the objective because in the debate on the Queen’s Speech Lord Dholakia, who I understand is deputy leader of the Liberal Democrats in the House of Lords, said:

“I welcome a number of measures in the Bill”—

the Criminal Justice and Immigration Bill.

“Also welcome is the removal of the power to pass suspended sentences for offences which are triable only summarily. This change should help to reduce the negative effect on the prison population of activated suspended sentences passed on offenders who could perfectly well receive a community sentence instead.”—[Official Report, House of Lords, 12 November 2007; Vol. 696, c. 274.]

That was said by the deputy leader of the Liberal Democrats in the House of Lords in a discussion on the Bill, supporting the contention that I proposed today.

Edward Garnier (Conservative, Harborough)

Let us not worry about the Liberal Democrats but concern ourselves with the law that we are making. Liberal Democrat and Conservative members of the Committee are at one in being puzzled by the Government’s arguments. Is the Minister of State aware that in the Crown court if someone is given a custodial sentence, conditions can be added to it that are akin to a community punishment. My hon. Friend the Member for Enfield, Southgate will tell me if it applies in magistrates courts, too.

There is nothing to be gained from the Minister’s clause. He can have everything he wants—that is to say, the greater use of community punishments—by leaving things as they are and leaving discretion with the sentencer. Restricting the sentencer’s discretion makes the chances of reoffending because of some Whitehall, Government-imposed system all the more likely. I urge the Minister to think very carefully before we go too far and he damages something that we all want to protect.

David Hanson (Labour, Delyn)

Again, I am grateful for the hon. and learned Gentleman’s intervention. There is an honest disagreement between us. I believe that the clause will lead to a greater use of community sentences. The hon. and learned Gentleman and his hon. Friends and, apparently, the hon. Member for Somerton and Frome and his noble Friend take a different view—[Hon. Members: “Irrelevant.”] It is not irrelevant; it is part of the debate. If those who speak on behalf of the Opposition parties in one House say that they support a proposal and those in the other House say that they do not, I must explore the difference in the Opposition’s thoughts.

The clause is an appropriate way forward. It will reduce the number of prison places, potentially by up to 400 over the next two years, and lead to a greater use of community sentences. I am supported in that declaration by Lord Phillips and by the National Association for the Care and Resettlement of Offenders and other bodies.

Nick Hurd (Conservative, Ruislip - Northwood)

Unlike most participants in the debate I am not a lawyer. For me and, I suspect, for many of my constituents, the most credible voice in the debate is that of the Magistrates Association, the people on the front line who will have to implement this stuff. Its voice could not have been clearer. The chief executive said:

“A suspended sentence order is a custodial sentence—we cannot get away from that.”—[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 43, Q75.]

In direct response to a question from my hon. and learned Friend the Member for Harborough, the chairman of the association said that there is an argument for saying that the number of people being sent to prison will increase as a result of the clause. Why are they wrong?

David Hanson (Labour, Delyn)

I listened carefully to what the Magistrates Association said in evidence to the Committee on 16 October, but I have to make a judgment and my judgment is that the clause will affect low level, summary only cases, which can be dealt with by a community sentence rather than by immediate custody through suspended sentence orders, which will happen in due course. That is a judgment between the Magistrates Association and myself, the Lord Chancellor, the previous Lord Chancellor, NACRO and others, including other hon. Members, not just members of my party.

Philip Hollobone (Conservative, Kettering)

With respect, the Minister is not addressing the point made by my hon. Friend the Member for Ruislip-Northwood. When my constituents in Kettering ask me which way I voted on suspended sentences, I will have to say that I do not know how I can translate the Minister’s words into a sensible, coherent answer. If an offender is before a magistrate and the offence is such that the magistrate feels that that person should go to prison but now has the right to suspend that sentence and the Minister is saying, “No, the offence is not as serious as the magistrate thinks therefore he should have a community sentence,” how will I justify that to my constituents?

David Hanson (Labour, Delyn)

I can tell the hon. Gentleman that we will have to look at giving advice to the Sentencing Guidelines Council and discuss forensically giving advice to magistrates. My wish is to ensure that we have strong community sentences to avoid people going to prison, because I am interested—again, it is a judgment—in preventing reoffending.

In respect of the offences that are considered under the current provisions, some 400 people will potentially go to prison in the next two years who could have been more strongly prevented from reoffending by receiving a community sentence. In such cases, individuals will go to prison for a short period, potentially with all the difficulties that that short sentence brings, despite all the evidence showing that short sentences cause great difficulties in respect of re-employment, housing and a range of other issues. The measure under discussion, as well as having the bonus for the Government of providing additional spare prison places, will be a greater contributory factor in preventing reoffending.

I understand what the magistrates have said. I could debate this matter for many months and moons to come. However, I share the view of Paul Cavadino, the chief executive of NACRO, who said:

“We welcome a number of the Bill’s provisions including the extension of conditional cautions to younger offenders, the reduction of periods served by recalled prisoners and the restriction of suspended sentences. Suspended sentences can have a ‘boomerang’ effect which has the perverse result of increasing the prison population. Courts often misuse suspended sentences by giving them to offenders who would otherwise have received community penalties.”

We will need to consider and discuss matters with the Sentencing Guidelines Council, which will advise magistrates accordingly. I commend the clause as it is drafted to the Committee.

Philip Hollobone (Conservative, Kettering)

Surely, alleged misuse of suspended sentencing orders is different from abolishing the right to have such orders overall.

David Hanson (Labour, Delyn)

Again, there is a judgment to be made. I return to the figures: 3,500 orders per month have been given by the courts, 40 per cent. of which were for summary only offences. In respect of certain offences, which I can mention if the Committee wishes, the increased number of suspended sentence orders directly correlates with the reduction in community sentence orders given. That means that there is a greater opportunity for people to go to prison, which is not good for the prevention of reoffending in such cases.

Edward Garnier (Conservative, Harborough)

There is no meeting of minds on whether it is a good idea to do what clause 10 asks us to do. I hope that the other place considers this matter carefully and robustly.

Under the current regime, people may end up in prison because magistrates are giving the wrong sort of person a suspended sentence that they breach and, therefore, have to serve a custodial sentence, possibly with a new sentence for a second offence to run concurrently. However, that issue relates to training and pre-sentence reports and working out whether a defendant will appropriately be dealt with by a suspended sentence order; it does not undermine the good arguments and experience of those of us who practice in the criminal courts as sentencers, which say that the suspended sentence option is hugely important and vital.

I doubt whether the provision will leave the Minister, as he hopes, with 400 additional prison spaces. The Government’s calculations on prison spaces over the past few years have not been brilliant. I will not prolong the argument—we have reached an impasse—but I urge the Minister and the Ministry of Justice, between now and Report and between the Bill leaving the House of Commons and going to the other place, to think again, otherwise we are just going to pass another bad law.

David Hanson (Labour, Delyn)

Again, I am grateful for the way in which the hon. and learned Member for Harborough has approached this matter. I am always happy to consider issues and to monitor progress during the passage of legislation through both Houses of Parliament. However, I return to the key point that the Sentencing Guidelines Council made in its May newsletter, before these proposals were advanced. It states:

“The number of suspended sentences rose steadily between 2004 and 2005; provisional figures for 2006 show a much more rapid increase. The information available to the Council and the Panel appears to indicate that this increase has been accompanied more by a reduction in the number of community orders and fines than in the number of custodial sentences”.

Edward Garnier (Conservative, Harborough)

The assertion that the Minister of State makes is no doubt correct. The use of suspended sentences has gone up, and he must ask himself why that is. The fashion in sentencing has changed. The guidelines from the Court of Appeal Criminal Division and the position of the Sentencing Guidelines Council have changed, although I cannot remember whether that happened by 2000.

In the 1990s, it was much more difficult to give a suspended sentence, as the criteria were much stricter. However, they were made more liberal and so the sentences were used more. Now the Government say that that is wrong, particularly on the summary jurisdictions. We are yo-yoing around. I repeat that my experience sitting as a judge for over 10 years is that the suspended sentence is a very useful weapon.

David Hanson (Labour, Delyn)

I fear that we have reached an impasse, as the hon. and learned Gentleman suggested. In my judgment, the clause would be a valuable addition in supporting community sentences, reducing levels of custody and preventing reoffending. I am always happy to examine these matters and to look at training issues, but I commend the clause to the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister of State is an extraordinarily difficult person to agree with because the more one tries to agree with him, the more he tries to introduce entirely spurious arguments. We experienced that on the last day of the Committee before Prorogation and we are experiencing it again now. He is trying to play silly political games rather than concentrate on the issues. He adduced the comments of my noble Friend Lord Dholakia. Why on earth did he do that when he could have quoted me?

I addressed this issue on Second Reading, when I welcomed the principle behind clause 10. I said that

“it seems quite wrong that suspended sentences are used in the magistrates courts as a substitute for immediate sentences of a different kind, which was certainly not the Government’s intention.”—[Official Report, 8 October 2007; Vol. 464, c. 88.]

I try to agree with the Government, but they will not accept it. That is an extraordinary position to take, but—and it is a big but—on examining clause 10 in more detail in conjunction with the rules that magistrates are required to follow, it appears that it will have a perverse effect. Instead of addressing that problem, the Minister chose to ignore it. He repeats time and time again what his intention is, rather than what the consequence of the clause will be. That is my problem with him.

I say to the Minister squarely that he needs to address, through the Judicial Studies Board or the Sentencing Guidelines Council, what will happen as a consequence of the clause. If he gets that right he can achieve his intentions and my intentions. If he gets it wrong, it will have the opposite effect. Surely that is not what he wants to happen as a result of this legislation.

David Hanson (Labour, Delyn)

I am grateful for the hon. Gentleman’s support, and I am sorry if I raised his temperature. In the course of the discussion, I simply quoted his noble Friend in the Lords in support of the Government proposal. I am happy to have his support too and look forward to it in the vote. I will happily look at some of the issues to do with delivery. I have already indicated that we will discuss advice that could be given by the Sentencing Guidelines Council to clarify the issues for magistrates. The hon. Gentleman should go with his gut instincts on Second Reading and support the Government in Committee.

David Heath (Liberal Democrat, Somerton and Frome)

Had the Minister approached the debate in a rather different way, I might have been inclined to accept that advice. Everything that he has said up until this moment has suggested that there is no problem to address, but there is. We have Committees to ask Ministers to look at measures again when their intentions will not be translated into adequate legislation. That is my purpose in this Committee. That does not mean that I have changed my mind or that I have a great disagreement with my noble Friend in the Lords. It does not mean any of those things. It simply means that I am trying to achieve good legislation for our courts. The Minister has something different thing in mind, which is simply getting his Bill through unamended. That is not a sensible way of doing things.

Frank Cook (Labour, Stockton North)

I must now offer the Committee a gentle expression of regret. Some time ago I received a request that Members be allowed to remove their upper, outer garments, but I wanted to get the first item out of the way before addressing it. I am happy to continue the practice that apparently was in place before I was brought on as a substitute.

Clause 11

David Hanson (Labour, Delyn)

I beg to move amendment No. 20, in clause 11, page 8, line 24, leave out second ‘community’ and insert ‘rehabilitation’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government amendment No. 57.

David Hanson (Labour, Delyn)

Before speaking to the Government amendments, may I tell Committee members that, in the spirit of co-operation, during the course of our proceedings I will reflect on other amendments and consider them further? I hope that that reassures the hon. Member for Somerton and Frome and the official Opposition that I am willing to look at the issues that they raised. Indeed, that may become clear during our discussions later today.

Government amendment No. 20 corrects a minor drafting error in clause 11, which makes reference to the old-style youth community orders rather than the new youth rehabilitation order. The effect of the amendment is simple and will make it clearer to sentencers that the court is not required to make a youth rehabilitation order, even when it is open to the court to do so.

David Burrowes (Conservative, Enfield, Southgate)

I do not take issue with the technical amendment, but perhaps I could take the opportunity to make a comment in more of a stand part mode. The Magistrates Association’s is concerned that clause 11 is repetitious and unnecessary. That theme developed in our debate on clause 10. Clause 11 makes the point that sentencers do not need to impose a community sentence when the community threshold has been reached, but magistrates and the judiciary are already aware of that, day in, day out, in the courts. If they wanted a reminder, they could look at the “Adult Court Bench Book”, or they could refer to the Sentencing Guidelines Council, which states:

“Sentencers must consider all of the disposals available at the time of sentence...before reaching the provisional decision to make a community sentence, so that, even where the threshold for a community sentence has been passed, a financial penalty or discharge may still be an appropriate penalty. Where an offender has a low risk of re-offending, particular care needs to be taken in the light of evidence that indicates that there are circumstances where inappropriate intervention will increase the risk of re-offending rather than decrease it.”

In addition, the point is made that enforcement of financial penalties make them a more viable sentence in a wider range of cases. Guidance and discretion are already available for the magistrates not to impose a community sentence, even if the threshold is reached, when there are particular mitigating circumstances, so why is it necessary for the Government to seek to spell matters out in additional legislation?

David Hanson (Labour, Delyn)

I am happy, if you give your consent, Mr. Cook, to speak to address the points that have been raised, or I can cover them in the clause stand part debate.

Frank Cook (Labour, Stockton North)

Discussing a stand part issue now means that we will not discuss it later. I am aware of the fact that we are discussing Government amendment No. 20, but stand part is included.

David Hanson (Labour, Delyn)

I am grateful, Mr. Cook, for that clarification. I do not wish to widen the debate too much beyond Government amendment Nos. 20 and 57, which I hope are accepted as simple matters.

Once again, this is a matter of judgment. I accept that there is an element of common practice, as the hon. Member for Enfield, Southgate mentioned. We are keen to examine how we can put new energy into the issuing of fines, which we want to use as an alternative to some forms of community sentence. The purpose of clause 11 is to revitalise the fine, making it central to the process of redirecting probation resources where they are most needed, in particular using those resources to deal with more serious offenders. Many offenders can be adequately punished by a fine; in fact, for some offenders a fine is more of a punishment than a community sentence or another sentence.

The payment of fines now is significantly higher than it was before. Performance in the collection of fines has improved—it is more than 90 per cent—so sentencers can be confident that a fine is an effective punishment. It will be collected, and, in certain circumstances, it will be more effective than other types of punishment. We must face the reality that resources are scarce. I want probation resources to be used effectively, and if we can encourage the greater use of fines, that will help us to achieve our twin objectives. It will reduce the demands on probation resources and, at the same time, the magistrate’s ability to impose a fine will result in a more effective punishment for many individuals.

I accept that the greater use of fines is already evident. We are restating the principle, encouraging it and trying to give greater drive to it in clause 11. I commend clause 11 and Government amendments Nos. 20 and 57 to the Committee.

Clause 12

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 137, in clause 12, page 8, line 34, after ‘below,’, insert

‘if the offender is over the age of 18 years,’.

Clause 12 deals with changes in the procedures for indeterminate sentences and for determining the tariff. My amendment was suggested by the Standing Committee for Youth Justice to limit changes to the determination of tariff to individuals over 18. That would mean, of course, that people below that age would be subject to the current arrangements. This issue is part of the larger question of whether we deal with all offenders, whatever their age, in the same way. It has been a long-standing principle in our legal system that we treat children differently from adults, and indeed we are party to various international obligations to treat children and young people differently from adults.

There is, however, a particular problem with indeterminate sentences. Children and young people are different from adults. First, there are developmental changes— children grow up while in custody and may be very different people within a relatively short period of time. Secondly, a young person’s perception of their future will differ from that of somebody who has been in and out of the prison system, is of more mature years and can take a more phlegmatic view of things.

There is a long established legal principle, set out in R v. Storey 1984, that when a child is given a sentence of long-term detention they should serve a period of time that enables them to see

“light at the end of the tunnel: the sentencer should take care to select a duration on which the offender can fix his eye with a view to emerging in the foreseeable future.”

There is a requirement, too, under article 37(b) of the United Nations convention on the rights of the child, which states:

“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.

It is that last phrase which is the operative term.

I shall not press the amendment to a Division, as it is simply intended to probe the Minister’s views on the matter, but tariffs for indeterminate sentences imposed on a child should be no longer than what would be served under a determinate custodial penalty for the same offence. Given what I said about children’s development and the process of maturity, there may be a strong case for reviewing the threat that the young person poses to society at an earlier stage. There is no risk involved, if risk assessments are done properly and the Parole Board does its work when the young person is eligible for release, in reducing the sentence available to a limited period, because at that point there is an assessment of whether the young person represents a threat to society. If they do, they will not be released. That seems entirely right.

My argument is very simple. We recognise that the judicial system should treat young people differently from adults. There is an argument for a clear and determinate length of sentence for young people that should be commensurate with the offence, rather than an indeterminate sentence of the sort envisaged under the clause. I should be grateful for the Minister’s comments.

Edward Garnier (Conservative, Harborough)

Not so very long ago, I was going through the front door of Oakhill secure training centre in Milton Keynes as the Minister was coming out, accompanied by his colleague the Minister for Children, Young People and Families. They had gone to look at the provision of custodial services for 15, 16 and 17-year-olds in that establishment, which is run by a private company. There were a number of people in the centre with indeterminate sentences. They had committed very serious crimes—some had been found guilty of murder.

The way in which we deal with youngsters who commit very serious crimes is not something that we can simply brush under the carpet and put out of mind. It is extremely important that the way in which we sentence people who are, at law, minors should have a number of aims in view. I suspect that we need to have those aims in view when we are sentencing adults as well. Punishment and public reassurance are clearly vital. The possibility of redemption as a young person matures is greater than it might be for an old lag of my age. The amendment provides an opportunity to ask the Government what their policy is with regard to the imprisonment of children, including those who have committed very serious crimes.

On my short visit to Oakhill STC, I found that its regime was humane and much improved from what it was perhaps two years ago, when it went through a period of difficulty. I do not know what the experience of the Minister and his colleagues was. I should have mentioned that the hon. Member for Milton Keynes, South-West (Dr. Starkey) was also there, as that establishment is in her constituency. I had a brief conversation with her before she left to attend to her other tasks.

We must be careful that we do not lump children or under-18s in with the rest of the criminal population. When children are detained during Her Majesty’s pleasure—I think that that is the frequently used expression—we should keep an eye out for education and rehabilitation, so that when that those children have served sufficient time for their punishment, they can be returned to society without the threat of being attacked or set upon by vigilantes, and without the concern that many of us have that they will reoffend if they have not been properly educated, reformed and rehabilitated. We should be able to stand up and say that when a young criminal is released, he or she will be a positive addition to society, not a drag on it or a further cause of problems. I suspect that the Minister, having been to Oakhill and, no doubt, other STCs, will largely agree with what I am saying. I congratulate the hon. Member for Somerton and Frome on raising the issue, albeit a difficult one to grasp.

David Hanson (Labour, Delyn)

I shall try to answer this short debate positively. I have some sympathy with the amendment tabled by the hon. Member for Somerton and Frome, and I hope that that shows that it is not all confrontation and disagreement among Committee members, and that there are occasions when we can reflect in a productive way on amendments that are tabled.

I recognise that there is precedent for a measure of the type suggested by the hon. Gentleman. Indeed, the murder tariff was debated in the context of the Bill that became the Criminal Justice Act 2003, and after consideration during the passage of that Bill, the Government reduced the starting point for juveniles convicted of murder. I have said that I have some sympathy with the amendment, but I ask the hon. Gentleman not to press it to a Division—I think that he has indicated that he will not. I ask him to withdraw the amendment and I will examine the issues in detail before we return to the matter following the end of the Committee’s consideration of this Bill.

I have little, if any, disagreement with the comments made by the hon. and learned Member for Harborough. Unfortunately, I did not see him when we exited Oakhill STC very rapidly. My right hon. Friend the Minister for Children, Young People and Families and I had to dash for a train so that we could return to London urgently for a further meeting. Had that not been the case, I would have happily had the hon. and learned Gentleman accompany me at Oakhill to look at the work going on there.

The hon. and learned Gentleman makes a valid point. I am not proud of the fact that when I woke up this morning, nearly 4,000 young people were in custody in secure training centres and other establishments. That is a failure of the system. We need to do several things, not least ensuring that when those individuals leave our care they are better individuals than when they came in. That means that we need to look at education—literacy and numeracy—at the difficulties in dealing with drug and alcohol problems, and at interventions outside establishments, with families and others. We must look at training and at skill levels and development, and we must consider housing and employment when individuals leave custody.

I know that the four Opposition Front Benchers and I have a common cause. The hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate take a positive view on this. I know that the hon. Member for Ruislip-Northwood is interested in the Blue Sky project in his constituency, which promotes positive investment in individuals, and I know that the hon. Member for Somerton and Frome shares that aspiration. There is work to be done, and I hope that we can reach some form of cross-party consensus on what should be done to make secure training centres efficient and effective. It is not just a matter of detention and punishment, although it does involve that. It is also about rehabilitation, preventing reoffending, and ensuring that people leave those centres in a more positive way.

I say to the hon. and learned Member for Harborough that there is work to be done at Oakhill to raise standards still further, and the reason for our visit was to look at how we can do that. We all have that objective. In giving sympathy and consideration to the amendment, I hope that both in Committee and elsewhere we can look at how to make the operation of STCs more effective.

Finally, the reason why the Minister for Children, Young People and Families and myself were there was because since the new Prime Minister, my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr. Brown), took office, he ensured that the Youth Justice Board was not the sole responsibility of the Ministry of Justice, but that of the Department for Children, Schools and Families, too. The purpose of that is to better integrate work in education and training, and outside-establishment interventions, and to ensure that we do exactly what the hon. and learned Member for Harborough says: make the experience more positive for those going through the system. Hopefully, in doing so, we can reduce the awful reoffending rate for those coming out of an STC, which is at about 75 per cent. That is not satisfactory to anybody. I hope that the hon. Member for Somerton and Frome will withdraw his amendment and that my comments have helped to restore balance to the debate and to the Committee’s temper.

David Heath (Liberal Democrat, Somerton and Frome)

That is more like it. That is the way a Committee is supposed to work. I am grateful to the hon. and learned Member for Harborough for his support, and to the Minister for his response.

The Minister says that he is not proud of the number of young people who are incarcerated in this country. I would go further: we should all be heartily ashamed of the fact that we imprison more of our young people than any other comparable country. That is a scar on the nation’s conscience. If we can address that—I take what the Minister said about the matter entirely at face value—we will be doing something hugely worth while for society.

I am grateful to the Minister for agreeing to look again at the amendment. As I said, it was not my intention to divide the Committee irrespective of what he said—unless he really provoked me. The key point is that children and young people are different. There should not be an automaticity by which the approach to adults applies to younger people in the same way. Whenever we do anything within the judicial and penal system, we must look carefully at whether that is appropriate to the needs of young offenders, and whether it will encourage them not to reoffend, but to grow, mature and become responsible members of society. That should be our clear intention. I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: New clause 4—Indeterminate sentences: determination of tariffs —

‘(1) Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (determination of tariffs in cases where the sentence is not fixed by law) is amended as follows.

(2) For subsections (2) to (4A) substitute—

“(1A) The court shall have a complete discretion to set the minimum period to be served in custody by an offender subject to a discretionary life sentence for public protection.

(1B) In setting that period the court must take into account—

(a) the seriousness of the offence,

(b) the danger to the public represented by the offender,

(c) the impact of the offence on the victim, his family and the local community where the offence took place,

(d) the offender’s previous criminal record,

(e) the need for rehabilitation of the offender, and

(f) any other factor the court considers relevant.”.’.

Edward Garnier (Conservative, Harborough)

The previous debate touches upon the one that we are about to have, albeit that we are now dealing with the mechanics by which a court will consider the minimum tariff that a person sentenced to an indeterminate life sentence should be given.

I ask the Committee first to open up the amendment paper at new clause 4 on page 397 and compare it with the wording of clause 12, which is gobbledegook. It is possible to understand what clause 12 intends to achieve, but it takes some little while to do so and not all of us have that some little while, particularly when we are busy dealing with someone in court. I push forward a plea for simplicity in English before we make such decisions.

The hon. and learned Member for Medway (Mr. Marshall-Andrews) made a similar point during the Queen’s Speech debate, and I agreed with him. Clause 12 is not quite impenetrable, but it is getting close. We therefore thought that it would be better to invite the Government to adopt new clause 4. It is instructive to compare the two measures. The new clause states that

“Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000...is amended as follows.”

So far, so good.

Subsection (2) states:

“For subsections (2) to (4A) substitute—

‘(1A) The court shall have a complete discretion to set the minimum period to be served in custody by an offender subject to a discretionary life sentence for public protection.’”

As a matter of philosophy and sentencing practice, it is preferable for a court to have discretion. The adjective “complete” is perhaps unnecessary, but I submit that, giving the court discretion in relation to the appropriate sentence for the case, the defendant and the circumstances bit, is vital.

Several offences nowadays carry with them a life sentence. Some are discretionary life sentences, in that it is possible to give a determinate sentence with a limit. The same crime can be the subject of an indeterminate or life sentence. Clearly, an offence such as murder has a sentence prescribed by law, and that is life. However, the amount of time to be served by the defendant is not always the natural life of the defendant. The court has therefore to go through the exercise of working out the minimum that the defendant should serve before he is considered for release on licence by the Parole Board.

Clause 12(2) states:

“In subsection (3) (determination of the appropriate part of the sentence) at the end insert—

‘In Case A or Case B below, this subsection has effect subject to, and in accordance with, subsection (3C) below.’”

We understand what that means in English, but subsection (3) states:

“After subsection (3) insert—

‘(3A) Case A is where the court is of the opinion that the seriousness of the offence, or the combination of the offence and one or more other offences associated with it,—

(a) is exceptional (but not such that the court proposes to make an order under subsection (4) below)’”—

I interpose to suggest that the Government seem to be saying that the offences are exceptional, but not exceptionally exceptional. The subsection continues:

“(b) would not be adequately reflected by the period which the court would otherwise specify under subsection (2) above.”

So we go back upstairs and look at subsection (2). Having done that, let us now move on to new subsection (3B), which states:

“Case B is where the court is of the opinion that the period which it would otherwise specify under subsection (2) above would have little or no effect on time spent in custody, taking into account all the circumstances of the particular offender.”

I hope that you are still with me, Mr. Cook. I will now whizz on to new subsection (3C), which states:

“In Case A or Case B above, in deciding the effect which the comparison required by subsection (3)(c) above is to have on reducing the period which the court determines for the purposes of subsection (3)(a) (and before giving effect to subsection (3)(b) above), the court may, instead of reducing that period by one-half,—

(a) in Case A above, reduce it by such lesser amount (including nil) as the court may consider appropriate according to the seriousness of the offence, or

(b) in Case B above, reduce it by such lesser amount (but not by less than one-third) as the court may consider appropriate in the circumstances.

Then subsection (4) states:

“In subsection (4A) (no order to be made under subsection (4) in the case of certain sentences) after “No order under subsection (4) above may be made” insert “, and Case A above does not apply,”.

There we are. What a fuss I am making about nothing. That is clear as mud, and any sentencer who is faced with this sort of serious crime requiring the application of an indeterminate sentence, has only to look at that and go through the rubric and it is easy for him to decide what to do.

With some diffidence, I will address new clause 4 and see if it meets the problem that the Government think exists. It states:

“(1A) The court shall have a complete discretion to set the minimum period to be served as custody by an offender subject to a discretionary life sentence for public protection.”

Let me start by saying that if you want to change the wording, Mr. Cook, go ahead. All that I ask for is clarity. The following refers to the minimum period to be served in custody:

“(1B) In setting that period the court must take into account—

(a) the seriousness of the offence,

(b) the danger to the public represented by the offender,

(c) the impact of events on the victim, his family and the local community where the offence took place,

(d) the offender’s previous criminal record,

(e) the need for rehabilitation of the offender, and

(f) any other factor that the court considers relevant.”

I accept that that is a bit of a sweep up. I agree that I wrote that and, therefore, I think that it is marvellous in every particular, but I also suggest that you, Mr. Cook, probably found it a little easier to understand than clause 12. On that basis, I suggest that we substitute new clause 4 for clause 12 as appropriate, and I invite the Government to persuade me otherwise.

David Heath (Liberal Democrat, Somerton and Frome)

I recall that the Leader of the House had an idea a year or so ago, whereby legislation would be translated into simple English. I do not know what happened to that idea; it was done for one Bill and has now disappeared. My concern in that case was that we ended up with two different versions of the same Bill, which simply gave work for lawyers to determine which wording they felt that they could hang a case on more effectively; so I was not particularly enamoured of that approach. But clarity in legislation is desirable and the hon. and learned Member for Harborough is absolutely right to draw attention to clause 12 as being the antithesis of clarity in drafting. It does not suggest that it is fit for purpose. I am rather impressed by the new clause; it is rather good. I understand it and it seems to cover all the requirements. I will be interested to see where the Minister feels that it is deficient, but my view essentially is clause 12, bad; new clause 4, good.

David Hanson (Labour, Delyn)

I do not know how this is recorded in Hansard, but I put my hands up and say that the clause is difficult to comprehend. I accept that it is not in a form of English that is in common parlance in my constituency or, indeed, in the constituencies of other members of the Committee. However, it serves a purpose and with the help of parliamentary counsel it is how we have expressed the intention of the clause.

In simple terms, the provision is as follows: it will ensure that courts have the discretion to set appropriately high tariffs for particularly serious crimes, which will not include the crime of murder, but will include crimes for which an offender could receive a life sentence. It will not include sentences currently given under imprisonment for public protection known as indeterminate sentences but there will be certain types of crime that are allocated a life sentence which are not murder and not IPP.

The effect of clause 12 will mean that in particularly serious cases the judges will not have to take into account the parole arrangements that apply to ordinary sentences when they calculate tariffs. As the hon. and learned Gentleman will know, the law at present obliges them to do so with the result that the final figure is half what a notional equivalent determinate sentence would be. If necessary, the court should be able to disregard the requirements completely or apply some reduction that is less than 50 per cent. as appropriate.

The current law requires working out a notional equivalent sentence and then reducing it, as would be the case with a determinate sentence which in some serious cases can result in what will appear to be, and are, disproportionately short sentences. They will continue to give rise to public discontent about particular sentences by the judiciary unless we examine and support the clause.

Hon. Members may recall the recently highlighted case of Sweeney, to which we referred in our consultation paper, “Making Sentencing Clearer”. Sweeney was sentenced to life imprisonment for the horrendous offences of kidnap and sexual assault of a child under the age of 13. There were serious aggravating factors in that case. Following the calculation on Sweeney’s conviction the tariff amounted to a mere six years for aggravated kidnap and sexual assault of a child under the age of 13. The case had an element of notoriety, certainly in my part of the world in Wales, when it was tried at Cardiff Crown court.

Clause 12 leaves intact the current arrangements for setting tariffs but gives the courts more flexibility to deal with the exceptional serious cases when needed, which I think is the objective of the hon. and learned Gentleman’s new clause. Had the clause been in place when the Sweeney case was heard, the judge would have had discretion to examine it and to raise the tariff accordingly above what would apply in a normal case based on his determination of the aggravating factors in the case.

I accept that the examination of clause 12 is a minefield and I greatly enjoyed the hon. and learned Gentleman’s gentle poking of parliamentary draftsmen and the Government in relation to it. The purpose of the clause is to give effect to the underlying principle, which I have outlined, and it should be supported for that reason.

The hon. and learned Gentleman has put much time and effort into his new clause but it would leave a number of gaps which, on reflection, he would not wish to occur and which would be opposed by members on both sides of the Committee. The new clause has the distinct disadvantage that it is not clear what its results would be. It asks the courts to consider seriousness but it does not specifically ask them to consider early release arrangements nor specifically permit them to disregard that part of the calculation. More importantly, the proposal might be read by courts as meaning that they were entitled to double all current tariffs. I would not wish to see the vast majority of tariffs doubled. We are looking at particular serious and difficult cases. If the new clause were accepted it would have tremendous resource implications as well as raising issues of the appropriateness of the new sentences. It seems to apply to sentences for public protection as well, which are not currently included in clause 12.

I accept that the new clause, as drafted by the hon. and learned Gentleman, may appear to be simpler and clearer for sentencers, but there are severe gaps in it. For example, it removes the role of the Parole Board altogether from the procedures that are currently accepted.

Edward Garnier (Conservative, Harborough)

No.

David Hanson (Labour, Delyn)

My assessment and examination, having taken advice, is that it does. I believe that the hon. and learned Gentleman shares our objective in clause 12, which is to give judicial discretion and to raise the tariff in cases where the seriousness of the case is examined by the judge and an increased tariff is deemed necessary, as in the case of Sweeney. It allows the judiciary to exercise that discretion accordingly and, whatever the minefield of clause 12, I assure the hon. and learned Gentleman that it achieves that objective.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister put on record the fact that two outrages were associated with the Sweeney case? One was a consequence of the rules that applied and the way in which the judge was required to apply them to the sentence. Secondly, there was the bullying of the judge in print and in the media by people who should know better, including someone who put in place the rules that the judge was required to follow—the previous Home Secretary, the right hon. Member for Airdrie and Shotts (John Reid).

David Hanson (Labour, Delyn)

In the space of 30 minutes, we have had a bit of politicking from me and we have now had a bit of politicking from the hon. Gentleman. One of the reasons why we introduced the clause is the natural frustration felt by my right hon. Friend the Member for Airdrie and Shotts (John Reid) when the Sweeney announcement and judgment was given. There is a question about whether Ministers and others should criticise the judiciary’s operations. I do not do so, but I understand people’s frustration. The rules that pertained blatantly led to a lower tariff and sentence from the judge on that day at Cardiff Crown court than any civilised person would expect for the horrendous crimes that were committed. My right hon. Friend expressed his frustrations in his inimitable way. I am trying now, with the support of the Lord Chancellor, to legislate for changes to allow judicial discretion to ensure that the appropriate sentence is given for the seriousness of the crime.

Alun Michael (Labour, Cardiff South and Penarth)

Frustration was expressed not just about the judicial aspects of the sentence. Intense anger and frustration was felt by people in my constituency who were directly affected by the events that led to the arrest and subsequent imprisonment of the individual concerned. We should remember that it is not just a question of protecting the proprieties of what goes on in court, but of making sure that common sense is applied by the courts when making decisions, and that that common sense is seen to apply. That was not the case on that occasion.

David Hanson (Labour, Delyn)

I am grateful to my right hon. Friend. He will know better than other Committee members the impact of the Sweeney case on the community in Cardiff and the reverberations generally. I accept the gentle chiding of the hon. and learned Member for Harborough. The interpretation of clause 12 does take some effort, but its objective is clear. I have checked with parliamentary counsel that it legislates for its objective, which is to allow judicial discretion on serious cases, such as those that I described to the Committee. I commend clause 12 to the Committee, and urge the hon. and learned Gentleman not to press new clause 4.

Edward Garnier (Conservative, Harborough)

When I argued in favour of new clause 4 and made criticisms of clause 12, I did so to the Minister, not parliamentary counsel. The Minister is elected to the House, and is appointed by the Prime Minister to speak for the Government. There is a great big Chinese wall between me and parliamentary counsel. I do not see him or her and, therefore, nothing that I have said is intended in any way as a rebuke or criticism of that person.

David Hanson (Labour, Delyn)

Nor was it taken as such.

Edward Garnier (Conservative, Harborough)

I am glad that the Minster is taking it on the chin, because he is the person who speaks for the Government.

We all remember the events that followed the Sweeney case, which perhaps as a greater resonance for the right hon. Member for Cardiff, South and Penarth than for others, because the crime, even though it did not take place in his constituency, affected his constituents and because the trial took place in the Cardiff Crown court.

What really annoyed me about the ministerial reaction to the sentencing remarks in the Sweeney case was the fact that the recorder of Cardiff was criticised for doing no more than what the Government required the judge to do. I have looked at the sentencing remarks—I deliberately downloaded them to ensure that I understood what he did. He applied faithfully and to the letter the rubric that the Government required him to apply as a result of their own sentencing legislation. Therefore, it was more than annoying—it was disgraceful—that the then Home Secretary made criticisms, swiftly followed by the Solicitor-General on an edition of “Any Questions” immediately after the sentence was given. It was outrageous that those two Ministers should make personal criticisms of the recorder of Cardiff, who, as I said, was doing no more than what this Government said he should do.

The Minister of State talked about discretion, but the recorder of Cardiff had no discretion and had to do exactly what an Act of Parliament stated. I fully appreciate that clause 12 is designed to prevent such problems from arising again, but that problem was made by the Government, not by the courts and certainly not by the recorder of Cardiff. It cannot be repeated too often that the recorder of Cardiff did precisely what he was required to do by the law, as passed by Parliament and initiated by the Government.

The Minister said that new clause 4 does not mention anything about early release. However, it deals with the minimum tariff that the court must set when sentencing someone to a discretionary life sentence. He said that new clause 4 would double the tariff, but it would do nothing of the sort. It would give the sentencing court the discretion to give an appropriate sentence in light of the facts and circumstances of the case. He claimed that the new clause would take the Parole Board out of the equation, but it would do nothing of the sort because the tariff is the minimum that a person serves, just as the six years handed down by the recorder of Cardiff in the Sweeney case was the minimum that the offender had to serve before he could apply to the Parole Board to be released on license. I have a suspicion, without prejudicing in any way the future decisions of the Parole Board in the Sweeney case, that it will be a very long time beyond the six years before Mr. Sweeney sees the outside of a prison wall.

The Minister kindly said that I must have spent a long time drafting new clause 4, but I can assure him that, having looked at clause 12, it took me about 10 minutes to do so. Perhaps I should have spent 15, 30 or 60 minutes drafting it, but it does not require that amount of time to work out what is wrong with the clause and why new clause 4 would be a marginal improvement.

David Hanson (Labour, Delyn)

I hope that the hon. and learned Gentleman will take this in the spirit in which it is meant. By removing subsection (2) of section 82A, his new clause would have the knock-on effect of removing the application of the early release provisions in section 28 of the Crime (Sentences) Act 1997. That section confers an important role on the Parole Board in recommending early release. While that is not set out in the new clause as clearly as I have tried to describe it, the consequences would be different from those which the hon. and learned Gentleman wishes to achieve.

Edward Garnier (Conservative, Harborough)

I am not sure that that is the Minister’s best point. I do not want to detain the Committee for too long. New clause 4(1) simply repeats his own clause. If my proposal affects the earlier legislation as he suggests, perhaps his does so as well. Let us not fuss too much about that. It is always said that Opposition new clauses and amendments are defective in their drafting. To use the expression that the Minister used a moment ago, I put my hands up. Of course, my drafting is not perfect, but so what? The clause is bad beyond description, although I understand what he is trying to do.

I make a simple plea for the legislation, particularly in the field of criminal justice, that Ministers present to Parliament and to the public and which will eventually be used by judges. Sentencing is the most difficult thing that a judge has to do. There are arguments about the inadmissibility of evidence and whether a particular line of questioning is relevant, but very often they sort themselves out. Sentencing is the most difficult thing that judges and magistrates have to do. It cannot just be read from a template or book that the tariff is four, 10 or six years. It is incredibly difficult. Anything that is designed to make the job of sentencing more difficult is to be deprecated and, I suggest, removed.

Having said that, if the Minister would be good enough to look at new clause 4 and compare it with the clause with his expert and eminent parliamentary counsel, perhaps he can come up with something a little more user-friendly—to use some new Labour jargon—and we would all be happy, as we might get some sentences that do not excite the right hon. Member for Airdrie and Shotts or the Solicitor-General. I am ever hopeful that the Government will listen to something of what I have said, and on that basis I will not seek to press new clause 4.

Clause 13

David Hanson (Labour, Delyn)

I beg to move amendment No. 175, in clause 13, page 9, leave out lines 39 to 41 and insert—

“(1A) Subsection (1) applies to a court sentencing a person to—

(a) a term of imprisonment for an offence committed before 4 April 2005, or

(b) a term of imprisonment of less than 12 months for an offence committed on or after that date,

as it applies to the imposition of any other term of imprisonment.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government amendments Nos. 176 and 179 to 181.

David Hanson (Labour, Delyn)

The amendments are minor. They close a minor loophole in the provisions on consecutive sentences. The clause was intended to clarify the position on imposing consecutive sentences on different occasions. However, on closer inspection, and bearing in mind the fact that the provisions on sentences of under 12 months in the Criminal Justice Act 2003 have not yet commenced, it is clear that clause 13 does not yet cover the restriction on consecutive sentences in cases where the new sentence is one of less than 12 months imposed for an offence committed on or after 4 April 2005. The amendments will close that minor loophole and I commend them to the Committee.

Frank Cook (Labour, Stockton North)

With this it will be convenient to consider new clause 5—Consecutive terms of imprisonment—

‘(1) Section 181 (prison sentences of less than 12 months) of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) For subsection (7) substitute—

“(6A) Where a court imposes two or more terms of imprisonment in accordance with this section to be served consecutively, the court shall have complete discretion to set the aggregate length of the terms of imprisonment subject to a maximum of 65 weeks and may suspend all or part of the total period of imprisonment.”.’.

Edward Garnier (Conservative, Harborough)

The Minister mentioned that the under-12-month provisions in the Criminal Justice Act 2003 are not yet in force. Clause 13(4)(b) refers to intermittent custody orders. As I understand it, such orders—for “weekend prison” in colloquial parlance—have been introduced and used with some success in certain parts of the country. Under pilot schemes, certain Crown court jurisdictions—and possibly magistrates courts as well—have the power to sentence appropriate defendants to a certain number of weeks in prison, breaking up the custodial period into separate periods of non-consecutive days or weeks.

Most obviously, for example, a single father who has committed a sufficiently serious offence to warrant custody could, to ensure that his family is not broken up and that he can continue with his job, be sentenced to serve a term of imprisonment at weekends and carry on Monday to Friday being employed, paying his rent and mortgage and looking after his children. At weekends, care arrangements could be made for his children—they could live with their grandparents, an uncle or aunt or some other suitable person.

As I understand it, weekend prison has been used in Manchester and Luton. It has been used not only for single fathers but for single mothers who have difficulties with employment and child care and whose children might have joined the 150,000 children in this country who have a parent in prison. We know that families break up and that mothers and fathers lose touch with their children; we know that reoffending rates rise when that happens. When contact between the offender and the family is broken, the chances of reoffending increase. Only one visit a year to an offender by a family member correlates noticeably with a reduction in reoffending. Intermittent custody, although it might still be in the Criminal Justice Act 2003, is no longer in use. Unless I have got it wrong and the pilot is being continued in other, discrete areas of the jurisdiction, we need clarification whether intermittent custody is still available for the courts.

New clause 5 deals with the imposition of consecutive sentences up to a maximum of 65 weeks. The English in clause 13 is marginally better, but not much better, than that in clause 12. Clause 13 seeks to limit the total length of consecutive sentences to 65 weeks. New clause 5 would provide greater certainty of discretion. I abide by the Government’s maximum of 65 weeks, but within that I give the court clear discretion, and clearly expressed discretion, to set the appropriate length of sentence. It gives the court the power to suspend all or part of the total period in prison, which goes back to our debate on clause 10.

Often courts give sentences for two or three offences that have to be served at the same time—concurrent sentences. Sometimes if the offences are different in time, for example if they took place in January, March and July the court might think it appropriate for the sentences to follow one after the other, which is called a consecutive sentence. Under this provision, in the limited circumstances of clause 13, the total length of a sentence is 65 weeks, but the court should not be hamstrung by the wording of clause 13 in such a way that it cannot suspend or adjust the length of the total consecutive sentences as it sees fit, having taken account, in essence but not precisely, the factors to which I referred in new clause 4. I hope that is a relatively simple point to grasp, that I have explained it in an understandable way and persuaded the Committee that it is better than the provision in the Bill.

David Hanson (Labour, Delyn)

Again, I am grateful to the hon. and learned Gentleman for his amendment. The clause is a technical amendment to correct some anomalies relating to the position on consecutive sentences in the Criminal Justice Act 2003. It amends the 2003 Act in respect of consecutive custody plus and intermittent custody sentences and general restrictions on imposing consecutive sentences for release prisoners.

The policy intention is to underpin custody plus: there need to be two or more sentences imposed consecutively, the resulting total sentence should not be more than 65 weeks and of that 65 weeks a maximum of 26 weeks custodial time should be imposed. The hon. and learned Gentleman is correct in the sense that the Criminal Justice Act 2003 indicated the direction of travel on these matters. We have had the pilots and as he will know custody plus has been deferred. I am not yet able to examine when we can bring the full potential of custody plus on stream but it is still on the statute book and has not been removed; it remains an option for us to consider. However, we must consider the current priorities in respect of Government expenditure and proposals generally.

The deferment of custody plus was announced as part of the White Paper on rebalancing the criminal justice system in July 2006. That is not to say that it will not be introduced at a later date; we are content to consider it and I will continue to keep it under review. However, clause 13 is about consolidating the position based on the anomalies that have occurred as a result of the Criminal Justice Act 2003.

The hon. and learned Gentleman would have us delete clause 13 and replace it with new clause 5 and he has explained the reasons and thinking behind it. I simply say to him that the new clause removes the current restriction on the amount of aggravated sentence that can be delegated to custody, namely, 26 weeks. I am not entirely clear whether that is the hon. and learned Gentleman’s intention, because in real terms it will mean that custody could be applied up to the present 65-week threshold, which could mean a sentence of 65 weeks in prison if sufficient offences were being sentenced together.

The purpose of custody plus and the 2003 legislation is to strike a balance between custody and licence, to allow intermittent sentences and the general restrictions that we have already discussed and to give courts the discretion, which the hon. and learned Gentleman welcomed, and the potential to help people to manage a sentence and life outside prison at the same time. We are continually keeping that under review. We need to examine it in light of our resource pressures and, as he will know, the pressures on the Prison Service are intense at the moment.

The purpose of clause 13 is to bring the 2003 Act into line with the changes under the Bill. I urge the hon. and learned Gentleman to reflect on what I said and to consider whether he intends his new clause to be such as to extend the potential for custody up to the maximum of 65 weeks. I do not think that, on reflection, he would be seeking that so I commend the original clause to the Committee and ask him not to press the new clause to a Division.

Edward Garnier (Conservative, Harborough)

I always reflect on what the Minister says and, sometimes, I reflect it back at him. Today is not one of those occasions, but I was interested in his saying that the purpose of clause 13 is to bring the balance inherent within custody plus into play. Well, custody plus is not in play, so there is no balance to be struck. Intermittent custody—a different concept—has been put in abeyance. We all understand the resource difficulties, but I urge the Government not only when dealing with the Bill, but when looking at the history of criminal justice legislation since 1997 not to rush for headline solutions, but to think more carefully about the implications of what flows from that legislation.

Let us consider schedule 23. It contains pages and pages of amendments to legislation that is barely two or three years old and some of it obviously deals with much older legislation. The amount of legislation that the Government have amended before it has even come into force, let alone after it has come into force, and the amount of legislation that the Government have not brought into force—custody plus being one example—is enormous. It is an incompetent, inefficient and confusing way in which to run a criminal justice system.

I shall not press the new clause to a Division nor shall I resist clause 13 stand part. I urge the Government not to get themselves into such muddles because it spreads confusion elsewhere.

Clause 15

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 12, in clause 15, page 10, line 25, at end add—

‘(2A) For the avoidance of doubt there is a rebuttable presumption that any such prisoner will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following amendments: No. 87, in clause 19, page 14, line 38, at end add—

‘(10) For the avoidance of doubt there is a rebuttable presumption that any prisoner of a category referred to in section 46ZA will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.’.

No. 88, in clause 20, page 15, line 38, at end add—

‘(9) For the avoidance of doubt there is a rebuttable presumption that any prisoner of a category referred to in section 259A will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.’.

Edward Garnier (Conservative, Harborough)

Subject to minor differences, the wording of amendment No. 12 is pretty well the same as the wording of amendments Nos. 87 and 88. The principle behind the amendments is the same. Amendment No. 12 would affect clause 15, while amendments No. 87 and 88 would affect clauses 19 and 20. However, I wish to concentrate on how amendment No. 12 touches on clause 15. It sets out a proposed new subsection (2A), which states:

“For the avoidance of doubt there is a rebuttable presumption that any such prisoner will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.”

I am happy for “United Kingdom” to be inserted in place of “British”, if that is thought to be more appropriate in statute law.

Clause 15 deals with the potential for the removal of prisoners from the United Kingdom. It brings into play provisions in relation to the early release of prisoners and so forth.

Of the 81,547 people inside prison as of last Friday, there are approximately 12,000 foreign nationals, some of whom are EU citizens. During Prime Minister’s questions three or four weeks ago, the Prime Minister, when questioned on the matter, said that there were quite large numbers of Jamaicans, Nigerians and other foreign nationals in prisons in England and Wales. The Committee is probably in agreement that many of those people ought to be living in their own country, either in prison or not, but not at our expense.

By removing a number of foreign national prisoners who have served at least a part of their sentence in this country, we would free up a number of valuable prison spaces. The prison population is bigger than the space available inside the prisons to house them by about 250 people. Modernisation of the prison estate means that there is now sanitation inside the cell. An unintended consequence of overcrowding is the ridiculous set-up whereby cells designed for one person now have two men, sometimes three, sleeping in a space that is also used as a lavatory. There is no privacy or dignity. If one of the cell’s occupants wishes to use the lavatory, he must do so in front of the others.

I have been to some prisons where prisoners rig up a string and make a curtain using a sheet or a towel, although there are obviously difficulties in allowing prisoners to have string in their cells, as the suicide rate in overcrowded prisons is enormous. There were about 57 suicides by the mid-point of this year, although the figure may be higher. However, the number of suicides in our prisons is gross and something of which we should be ashamed. If we want to ease overcrowding, one answer is to ensure that an appropriate number of foreign national prisoners is removed quickly from our prisons once they have served their sentences.

Amendment No. 12 was tabled to act as a spur to the Government to do something about the matter. Our knowledge of the European Union legal system has shown that expelling EU citizens to their country of origin is not an apt way to prevent these people from coming back into the country, because the free movement directive and other regulations allow them to return. Some European Union prisoners have been here so long, or were here so long before they were found guilty of a crime, that under EU law or the European convention on human rights, they can claim a long-term connection with this place that prevents them from being deported. That is not necessarily the case with nationals of countries outside the European Union.

The short point—and I apologise for getting to the church by way of the moon—is that our prisons are woefully overcrowded. The Government could relieve some of that overcrowding if they pulled their socks up and started to negotiate, implementing bilateral treaties with non-EU countries to ensure that a proportion of the foreign national prisoners in our prison estate is sent home. More urgently, foreign national prisoners who are released but remain in this country as illegal immigrants or are here unlawfully should not simply be released back onto our streets. They should be taken directly from the prison and deported. There is no excuse for having such people pushed out into our streets, where they remain unlawfully and undetected.

Bullwood Hall in Essex and Canterbury prison in Kent are two prisons dedicated exclusively to housing foreign nationals who have not yet completed their sentence and—the Minister will correct me if I am wrong—foreign nationals who have completed their sentence but who have been detained pending deportation. Either way, something is wrong with the system if it cannot ensure the removal of a foreign national who would be deemed to remain in Britain unlawfully but for the fact that he has been detained. The presence of such people is not conducive to the public good, and in the right cases and in the right numbers we should relieve prison overcrowding by doing something along the lines suggested by the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I simply wish to add a few comments. We undoubtedly have a problem with foreign prisoners who should have been deported, but that is more of an administrative problem than a legal one. I am not convinced that there is a gaping loophole in the present statutory provisions, but I am utterly convinced that there is a huge administrative loophole, which I hope will be addressed, given the inability of the Prison Service and the immigration authorities to work closely together to ensure that proper measures are taken to label prisoners due for imminent release so that they know where there is a recommendation for deportation, and can effect that removal on release. That should not be the most difficult thing in the world.

I found myself defending the Minister of State on the question of prisons used for foreign prisoners, which I regard as a positive move. If one can congregate those prisoners in one place, it is administratively easier to effect their removal. That is an entirely proper and sensible thing to do, and I do not have a problem with it. However, there are some countries with which we have a substantial problem, including Jamaica, and I think that the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) travelled to Kingston to discuss it.

Maria Eagle (Labour, Liverpool, Garston)

No, I did not.

David Heath (Liberal Democrat, Somerton and Frome)

In that case I am misinformed, I apologise.

Maria Eagle (Labour, Liverpool, Garston)

I am willing to go.

David Heath (Liberal Democrat, Somerton and Frome)

They are all willing to go. I have never been to Jamaica, but I am not convinced that Kingston is one of the most salubrious places in the world, although perhaps that is unfair. We have a problem with Jamaica, and I ran into it when I was involved with policing in Avon and Somerset. There was a large turnover of Jamaican drug runners—youths—coming into Bristol airport. On virtually every aeroplane from Kingston, Jamaica that touched down there was a significant number of people who were arrested because they were found to be carrying drugs. That significant problem resulted in an increase of Jamaican nationals in our prison population. Other countries are similarly involved in the drugs trade.

It makes sense for some of those prisoners to be returned to custody or given an appropriate sentence in their state of origin. Often, these people are not the Messrs. Big of the drug world. They are poorly advised to carry a limited amount of drugs on to a plane and get off at the other end, only to find themselves arrested and put in prison in this country. Of course, they should not do such things, and they should be deterred, but nevertheless the real villains of the piece are the people who pay them to act as carriers. If there are ways of reducing that population, we should adopt them.

I do not, however, accept that we should deliberately set out to remove as many foreign prisoners as possible from our jails—particularly if they end up in a non-secure jail in another country or if we are not convinced that they would not reoffend. In countries with which we have bilateral agreements, we must be careful to ensure that we do not create further work down the line for police and customs officers. I am not convinced that the statute contains a lacuna. I am convinced, however, that, as is often true of matters that were the provenance of the Home Office and which partly still are, and whether or not the Department of Justice needs to work in conjunction with the Home Office, there is a huge problem in the management and organisation of the administrative process. The Government have not yet put that right, and they need to do better in future.

Philip Hollobone (Conservative, Kettering)

I very much support any measures that are intended to return foreign national prisoners to their country of origin, either towards the end of their sentence under present arrangements or preferably towards the beginning, provided that they are returned to secure detention. I am sure that my hon. and learned Friend the Member for Harborough is better informed than me, but I tabled a parliamentary question on the subject not long ago, and my understanding is that there are 8,000 foreign national prisoners in our jails, which is about 10 per cent. of the British prison population. That is an absolute scandal.

There ought to be scope for genuine international agreement, perhaps co-ordinated by the United Nations, on where prisoners should serve their time. A reciprocal part of that arrangement would be a requirement that we take in British nationals jailed abroad. From memory, I think that the number of such people is about 1,500—a lot less than the number of foreign nationals here.

David Hanson (Labour, Delyn)

It is 4,500.

Philip Hollobone (Conservative, Kettering)

In any event, there are few issues that incense people more than British taxpayers’ money being spent on accommodating foreign national prisoners in our jails. The issue of EU nationals should not be passed over either. The Italians recently came to some sort of arrangement on Romanian nationals convicted of offences on Italian soil, and found a way of returning those people to their country of origin.

Given that one of the principles of the European Union is freedom of movement, I do not see why that should not apply to convicted prisoners. I support the amendment tabled by my hon. and learned Friend the Member for Harborough, and I am glad that the Committee is addressing the genuine and growing concern in the country that we are far too generous to foreign nationals in our jails. People get very cross when they are told, “We would deport them but we have to get their consent.” We should have appropriate international agreements so that, whether the prisoner consents to being deported or not, we do not spend taxpayers’ money on detaining prisoners here if they can be detained in their own country.

David Hanson (Labour, Delyn)

I am grateful for hon. Members’ contributions. This is an important issue, given the concern about foreign national prisoners in jails in my jurisdiction of England and Wales. I hope that I can reassure all hon. Members that foreign national prisoners are in jail because they have been caught, tried and convicted of crimes and are therefore serving a sentence. There are approximately 11,000 such prisoners in British jails, which is about 14 per cent. of the total. As has been mentioned, certain countries represent a significant proportion of those figures.

Philip Hollobone (Conservative, Kettering)

I am fascinated by the Minister’s answer. He gave a figure of 11,000, and I am grateful for that clarification. Perhaps his officials could advise him how that figure has changed in the past few years, because it seems to have increased significantly.

David Hanson (Labour, Delyn)

Although I do not have the figures on performance, I am happy to reflect on that matter and will, if the hon. Gentleman will allow me, drop him a letter on those points.

As I was indicating, there are significant areas of difficulty regarding that figure of 11,000. I draw the Committee’s attention to the points that were mentioned by the hon. Member for Somerton and Frome. As of 31 August 2007, there were just over 1,300 Jamaican prisoners in British jails, just over 1,000 Nigerian prisoners, 449 prisoners from Vietnam—a significant number—369 from Somalia and 371 from China.

Perhaps I can offer the hon. Gentleman and the Committee some reassurance. An important key point is that, as of 23 October 2007, we have agreements with 97 countries to repatriate prisoners to serve sentences in their home country. The countries range from Albania and Australia, in the a’s, through to Venezuela and Ukraine at the other end of the alphabet. Those countries and they have operational transfer agreements in place.

Philip Hollobone (Conservative, Kettering)

Is it the case that those repatriation agreements require the consent of the prisoner concerned? The Minister says that there are 1,300 Jamaican nationals in British jails. Surely the British Government should have been making an agreement with Jamaica for the mass deportation of those people to a suitable detention facility in Jamaica. I would be surprised if it were not cheaper to pay the Jamaicans to hold those people in their own jails than to house them in this country.

David Hanson (Labour, Delyn)

Again, perhaps the hon. Gentleman will bear with me. We have a facilitated return scheme, under which we are encouraging individuals to return to their home countries. We are also helping with transfer costs. We recently discussed the matter with the Jamaican Government and decided on an agreement at official level, which awaits ratification by the Jamaican Parliament, in respect of the transfer of such people.

We are negotiating prisoner transfer arrangements with the major countries, some of which I mentioned earlier. They include Nigeria, Vietnam, Laos, China, Ghana, Libya, Botswana and Russia, which are the main areas for which we need prisoner transfer agreements at official and ministerial levels. This afternoon, I am meeting the South African Minister of Correctional Services and I will be raising with him again the need for an agreement with South Africa.

Charles Walker (Conservative, Broxbourne)

What arguments will lawyers use to prevent those transfers? It is all very well having a deal with Libya, but I am sure that some slick lawyer will argue that such a transfer might impinge on his client’s human rights or something. Even with these agreements, is it likely that prisoners will be deported to their country of origin?

David Hanson (Labour, Delyn)

Let me put the success of the transfer agreements and work in context. Two years ago, approximately 1,500 people were transferred by the Government out of prisons in England and Wales to foreign prisons. Last year, 2,784 prisoners were transferred out. In the current year we are on target to meet my right hon. Friend the Prime Minister’s aim of removing 4,000 prisoners from prisons in England and Wales. I accept that there is more to be done, which is why I am investing ministerial time in trying to secure agreements with the countries that I have mentioned, and why I will be trying to raise that issue this afternoon with my South African counterpart. There will be engagements across the board to ensure that that is done, because it needs to occur. However, the speed of transfer to date has been significant.

Hon. Members mentioned the two prisons that we have allocated entirely to foreign prisoners—Bullwood and Canterbury—to ensure that we transfer out prisoners at the end of their sentences much more efficiently and speedily. Border and Immigration Agency staff are working in those prisons with the Prison Service to effect a speedy transfer either to a final destination, or to a holding camp in the BIA estate. I welcome the support of the hon. Member for Somerton and Frome for that measure.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister will have my support for that measure, although the mind boggles as to why we did not have a proper relationship between the immigration and prison authorities years ago.

I would like to return to what the Minister was saying because it is important that the Committee does not get the wrong impression about the agreement with the Jamaican Government. Is not the scale of that agreement extremely modest, simply because there are not enough prison facilities in Kingston to deal with the sort of numbers of prisoners that we have in the British prison estate?

David Hanson (Labour, Delyn)

The agreement has the potential for expansion. We are trying to secure agreements with countries with which we do not have agreements at present. Any agreement, such as the one negotiated in August with Jamaica, must be welcomed.

Some of these issues are not as easy as they might at first seem. There will be people in each of our constituencies with Jamaican citizenship who may have lived in the United Kingdom for 20 or 30 years, who may have married British citizens and who may have children who are British citizens, but who are Jamaican passport holders. The situation is not always as simple or clear as some of the “let’s deport” arguments suggest.

Mr. Hurd rose—

Mr. Walker rose—

David Hanson (Labour, Delyn)

I will give way to the hon. Member for Ruislip-Northwood first because he has not had a go yet.

Nick Hurd (Conservative, Ruislip - Northwood)

I think that we all understand some of the difficulties underlying the headlines, but the stark reality is that 14 per cent. of an overcrowded prison population are foreign nationals who, frankly, have relinquished their right to our hospitality. All our constituents would expect the Government to be extraordinarily robust in shifting those people on.

I would like to press the Minister to answer the question put to him by my hon. Friend the Member for Kettering. Do these international agreements still rely on the underlying agreement of the individual prisoner? If they do, are the Government happy with that status quo?

David Hanson (Labour, Delyn)

No, they do not. This is a complex area and it is difficult to discuss individual cases, but those agreements do not automatically rely on the consent of the prisoner. There are people who have been deported and have not consented to that deportation. Obviously, in the European Union context, that is very difficult, because in that context a prisoner can be deported to Krakow tomorrow, walk across the airport and fly back to the UK under their European rights—rights to which they are perfectly entitled to. So, the situation is difficult, but the intention is to speed up the deportations, to effect prisoner transfer agreements, especially with countries outside the European Union, and to ensure that we put in place measures to increase the number of deportations.

Charles Walker (Conservative, Broxbourne)

The Minister is right that this is a complex area. Regarding the 11,000 foreign nationals in our prisons, in how many cases has the Home Office been able to establish whether those people had previous criminal records in their country of origin—in other words that they are serial offenders who have a criminal record in their country of origin and have then come over to this country and offended here?

David Hanson (Labour, Delyn)

I am grateful for the question, but I am not in a position to answer it now. If the hon. Gentleman will let me, I will consider the question. Given that this matter is also the responsibility of the Home Office and that I am a Minister in the Ministry of Justice, I do not have those figures to hand, but I will ensure that we look at the issue again.

Philip Hollobone (Conservative, Kettering)

May I try to assist the Minister—if I am thinking along the right lines—in answering the question put by my hon. Friend the Member for Ruislip-Northwood? Is it not the case that consent is not required from a prisoner for them to be deported on completion of their sentence, but is required for deportation during their sentence?

David Hanson (Labour, Delyn)

No. The situation, essentially, is that a number of strands of consent are required. The bilateral agreements that I have mentioned—there are 97 in total—require the consent of the prisoner. So, with the 97 countries that I have listed, an element of consent is required. Under the EU framework decision, which we have already agreed at an EU level and which comes into effect in 2009 or 2010, consent will not be required. Also, under domestic legislation, we do not require consent, and where there is no bilateral agreement, we can deport individuals without their consent, and we have done so.

The reason why the figure has risen from 1,500 to 4,000 over the past two years is because my right hon. Friend the Prime Minister, the Minister for Borders and Immigration, and other Ministers dealing with these matters, including me, have all recognised that we need to improve the performance of the BIA estate on deportation and to free up people from prison into the secure BIA estate ready for deportation. The purpose of Bullwood and Canterbury was to achieve those things.

Clause 15 is designed simply to give the Parole Board the power to determine parole for all prisoners serving sentences of less than 15 years, regardless of their immigration status. It is designed to address the decision in the case of Hindawi, about which hon. Members might be aware, which provided that applications for the early release of foreign national prisoners serving between four and 15 years who are liable to deportation or removal from the United Kingdom can be determined only by the Secretary of State. That procedure was incompatible with article 5(4) of the European convention on human rights, and clause 15 is designed to make us compatible with that convention.

Clauses 19 and 20 are designed to make certain changes to the operation of the early removal scheme. At the moment, the Secretary of State is empowered to remove from the country, up to 135 days before the halfway point of a sentence, fixed term prisoners serving a sentence of three months or more, but not life, who are liable for deportation or removal from the United Kingdom. The purpose of the three clauses is, first, to extend the scheme to make it available to offenders not liable for deportation; secondly, to streamline the existing scheme by removing a number of restrictions on eligibility; and, thirdly, to remove a potential anomaly in the treatment of prisoners released under the Criminal Justice Acts 1991 and 2003.

I wish to draw the Committee’s attention to the fact that in pursuing the aims that I have outlined, clause 20 inadvertently makes a change that I do not support and that we want to rectify on Report. It would remove the existing provision requiring prisoners who are entitled to be released under the provisions of the 2003 Act to serve at least one quarter of their sentence before they can be removed early under the scheme. We have reflected on the unintended consequence that that creates a disparity. I will table an amendment on Report to reinstate the requirement, and I hope that right hon. and hon. Members will bear with me on that point.

In conclusion, I commend the clauses to the Committee and I urge it to reject the amendments tabled by the hon. and learned Member for Harborough. We are already doing a considerable amount, and are trying to do even more to effect the changes that I think are sought by all Committee members to ensure that the 11,000 prisoners either serve their sentences abroad under repatriation terms, or are at least deported at the end of their sentence.

Edward Garnier (Conservative, Harborough)

We have had an interesting discussion about the impact of foreign national prisoners on the English and Welsh prison estate. It is important that the Government make their position clear. Obviously, we must consider the situation involving some foreign nationals. For example, a person could be deported back to China after serving a relatively short length of time in custody for a relatively minor offence. Such people could get into considerable difficulty on their return to China because the Chinese are not noted for accepting back, let alone treating kindly, criminals of their own nation.

That being said, I think that I am right that since the Government came to office, the foreign national prison population has gone up by 155 per cent.—three times that of the British prisoner population—which gives rise to all sorts of questions about language facilities and the need for interpreters in prisons and courts. The bill for interpreters in London courts now runs into millions a year. I have no idea what that bill is in the Prison Service, but it must be quite significant.

I do not know the Government’s thinking about this at the moment, but they were proposing to give EU nationals £1,500 to go away. Of course, those EU nationals would take the money, go back to France, Italy or Greece, and return under the free-right-to-travel arrangements.

This is a convenient moment to unburden the Committee by letting them know that I do not wish to press my amendments to a Division. I beg to ask leave to withdraw the amendment.

Clause 16

David Hanson (Labour, Delyn)

I beg to move amendment No. 74, in clause 16, page 10, line 31, leave out subsection (2) and insert—

‘(2) After section 255 of that Act (recall of prisoners released early under section 246) insert—

“255A Further release after recall: introductory

(1) This section applies for the purpose of identifying which of sections 255B to 255D governs the further release of a person who has been recalled under section 254 (“the prisoner”).

(2) The prisoner is eligible to be considered for automatic release unless—

(a) he is an extended sentence prisoner or a specified offence prisoner; or

(b) he has, during the same term of imprisonment, already been released under section 255B(1)(b) or (2) or section 255C(2).

(3) If the prisoner is eligible to be considered for automatic release the Secretary of State must, on recalling him, consider whether he is suitable for automatic release.

(4) For this purpose “automatic release” means release at the end of the period of 28 days beginning with the date on which the prisoner is returned to prison.

(5) The person is suitable for automatic release only if the Secretary of State is satisfied that he will not present a risk of serious harm to members of the public if he is released at the end of that period.

(6) The prisoner must be dealt with—

(a) in accordance with section 255B if he is suitable for automatic release;

(b) in accordance with section 255C if he is eligible to be considered for automatic release but was not considered to be suitable for it;

(c) in accordance with section 255C if he is a specified offence prisoner;

(d) in accordance with section 255D if he is an extended sentence prisoner.

(7) The prisoner is an “extended sentence prisoner” if he is serving an extended sentence imposed under section 227 or 228 of this Act, section 58 of the Crime and Disorder Act 1998 or section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.

(8) The prisoner is a “specified offence prisoner” if (not being an extended sentence prisoner) he is serving a sentence imposed for a specified offence within the meaning of section 224.

(9) The Secretary of State may by order amend the number of days for the time being specified in subsection (4).

(10) In subsection (2) “term of imprisonment” means—

(a) in relation to a prisoner who is, or is to be treated as, serving a single term of imprisonment, that term;

(b) in relation to a prisoner serving two or more sentences of imprisonment (whether concurrently or consecutively), the aggregate of the periods that the prisoner is required—

(i) to serve in prison, or

(ii) to be on licence.

(11) In subsection (5) “serious harm” means death or serious personal injury, whether physical or psychological.

255B Automatic release

(1) A prisoner who is suitable for automatic release must—

(a) on his return to prison, be informed that he will be released under this subsection, and

(b) at the end of the 28 day period mentioned in section 255A(4) (or such other period as is specified for the purposes of that subsection), be released by the Secretary of State on licence under this Chapter (unless he has already been released under subsection (2)).

(2) The Secretary of State may, at any time after a prisoner who is suitable for automatic release is returned to prison, release him again on licence under this Chapter.

(3) The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison until the end of the period mentioned in subsection (1)(b).

(4) If a prisoner who is suitable for automatic release makes representations under section 254(2) before the end of that period, the Secretary of State must refer his case to the Board on the making of those representations.

(5) Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.

(6) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 183(1)(b) in the intermittent custody order.

255C Specified offence prisoners and those not suitable for automatic release

(1) This section applies to a prisoner who—

(a) is a specified offence prisoner, or

(b) was eligible to be considered for automatic release but was not considered to be suitable for it.

(2) The Secretary of State may, at any time after the person is returned to prison, release him again on licence under this Chapter.

(3) The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison.

(4) The Secretary of State must refer to the Board the case of any person to whom this section applies—

(a) if the person makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which he is returned to prison, on the making of those representations, or

(b) if, at the end of that period, the person has not been released under subsection (2) and has not made such representations, at that time.

(5) Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.

(6) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 183(1)(b) in the intermittent custody order.

(7) The Secretary of State may by order amend the number of days for the time being specified in subsection (4)(a).

255D Extended sentence prisoners

(1) The Secretary of State must refer to the Board the case of any extended sentence prisoner.

(2) Where on a reference under subsection (1) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.”’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: Amendment No. 13, in clause 16, page 10, line 43, at end insert

‘, subject to the agreement of a Crown Court judge’.

Amendment No. 138, in clause 16, page 11, line 23, at end insert—

‘(c) if the person is under the age of 18, at the date of his or her return to prison.’.

Amendment No. 14, in clause 16, page 11, leave out line 33 and 34.

Amendment No. 84, in clause 16, page 12, line 2, leave out first ‘is’ and insert ‘and the Board are’.

Amendment No. 139, in clause 16, page 12, line 12, at end insert—

‘(c) if the person is under the age of 18, at the date of his or her return to prison.’.

Amendment No. 85, in clause 16, page 12, leave out lines 22 and 23.

Government amendments Nos. 75 and 76.

Clause stand part.

Government amendment No. 77.

David Hanson (Labour, Delyn)

Welcome back for the afternoon sitting, Mr. Cook.

Government amendment No. 74 replicates the re-release provisions in clause 16 as it stands. In the light of the comments of the hon. and learned Member for Harborough, we tried to put them into a structure that would be easier for practitioners to understand. That is not the result of this morning’s discussion. None the less, I hope that the hon. and learned Member will accept that we are trying—perhaps very trying. We are doing our best.

The provisions, which essentially replicate those in the original clause, define three groups of determinate sentence prisoners for whom different re-release procedures following recall must apply. The first group is offenders who are serving a determinate sentence for offences that are neither violent nor of a sexual nature. We are attempting to ensure that if such prisoners, having been assessed as not presenting a risk of harm to the public, are recalled, that will be for a fixed period of up to 28 days, at which point they will automatically be re-released. That is a significant change from the current arrangements, but in my view it would ensure that recall would be not a punitive measure but a measure of protection for the public; it would ensure that the purpose of fixed term recalls is to remove offenders from often rapidly deteriorating situations, and place them in secure environments.

The probation service will have the opportunity to review the supervision arrangements and, if need be, apply for additional restrictions. The enforcement of the licence through recall also underlines, for the offender, the importance of future compliance. I reassure the Committee that if individuals who are recalled for up to 28 days go out into the community again and commit further offences or cause further difficulties while on licence, they will be returned to custody until, potentially, the end of the sentence, and not for a second fixed term period.

The second group is of determinate sentence prisoners who are serving a sentence for crimes of a sexual or violent nature, or who have been assessed as unsuitable for automatic re-release because they present a risk of serious harm, or, indeed, have already served one fixed term recall and as a result are no longer eligible for automatic re-release. The provisions allow for such prisoners to be re-released through two possible routes. In the first, the Secretary of State has discretion to examine the case and determine whether re-release should occur; that involves determining that the offender is safe to release. The decision will be taken by the Secretary of State on the basis of up-to-date risk assessments provided by probation staff. If the Secretary of State is not satisfied on the matter, there is the option, as there is now, of the Parole Board. The case of any recall prisoner who remains in custody for 28 days must be referred to the Parole Board. If neither the Secretary of State nor the Parole Board is satisfied that it is safe to re-release the prisoner, he must accordingly remain in custody.

The third and final category in the amendment, which also replicates the original clause, is of those sexual or violent offenders who are serving extended sentences. Such prisoners will be re-released only if the Parole Board recommends it. If the board does not consider it safe to re-release them following their recall they can potentially be held until the end of their sentence.

We are trying to demonstrate swift and effective enforcement of licence conditions. The figures on enforcement of licence conditions following breaches of licence show 33 per cent. enforcement in 1997, rising to 91 per cent. in 2006. We need to manage that in connection with the prison population. The proposals strike a balance between public protection and ensuring that licence conditions are met. Government amendments Nos. 75 to 77 are consequential upon the main amendment.

That leads me to the Opposition amendments tabled by the hon. and learned Member for Harborough. In my view, amendment No. 13 would produce a further step before recall takes place in requiring prisoners recalled for a fixed term to be referred to the Crown Court before they can be re-released. That measure is potentially slow and cumbersome and would add very little to the process. I will be grateful to hear the hon. and learned Gentleman’s reasons for that amendment, but if it is designed to enhance public protection, I reiterate that prisoners serving sentences for sexual and violent offences are automatically precluded from being given fixed term recall and that prisoners eligible for fixed term recall will be subject to the risk assessment conducted by probation staff that I mentioned earlier. I believe that the probation service is well placed to assess the level of risk presented by an offender and that it will do a sound job in that regard. The Secretary of State will also have considerable powers to examine in detail any assessment showing whether the offender presents a further risk to the community. I believe that there are adequate safeguards in place to ensure public protection. It is not in our interests to put public safety at risk.

Amendments Nos. 138 and 139 would remove the power of the Secretary of State to re-release a young offender following recall. I recognise that the provision to re-release recalled prisoners using Executive powers as opposed to going through the Parole Board is a departure from existing practice. However, as I have already mentioned, we are keen to refocus the board’s energies to considering the release and recall of the most dangerous offenders in the system—those who serve long terms for sexual and violent offences. In that way, it can provide a most useful service in protecting the public.

Amendment No. 14 would deny the Committee, the House and the Government the opportunity to amend the number of days that an offender serves on recall, other than by amending the Act through further primary legislation. Similarly, amendment No. 85 would remove the associated order-making power in new section 254A(7) of the Criminal Justice Act 2003.

The introduction of fixed term recall provisions is a new initiative. We trailed it in our paper published on the first day of the Ministry of Justice, 9 May. As with other provisions, it has the support of not only the previous Lord Chancellor, but the present Lord Chancellor, my right hon. Friend the Member for Blackburn (Mr. Straw).

David Heath (Liberal Democrat, Somerton and Frome)

May I test the Minister on one aspect of legislation within his Department? He refers to the Lord Chancellor, who is the Secretary of State for Justice. However, the legislation refers to “the Secretary of State”, which, as we know is an interchangeable term between any Secretary of State and could therefore put this very important power within the compass of the Secretary of State for the Home Department. That would place the matter in the executive arm rather than in the Department of Justice. I wonder why the term Lord Chancellor, which is still a statutory position that separates its holder from the run-of-the-mill Secretaries of State, has not been used in this legislation.

David Hanson (Labour, Delyn)

That is an interesting probing point. In terms of Pepper v. Hart, I will make some policy on the hoof and say that, for these purposes, the Secretary of State is the Secretary of State for Justice and Lord Chancellor. In the event that I find that that is incorrect, I will write to the hon. Gentleman. That seems to me to be relatively clear in the circumstances.

I hope that with that point and the hon. Gentleman’s ever helpful smiling contributions—I think that today’s score is about 2-all—I commend the revised Government amendment to the Committee. I urge the hon. and learned Member for Harborough not to press his amendments.

Frank Cook (Labour, Stockton North)

Monsieur Garnier.

Edward Garnier (Conservative, Harborough)

Sacre bleu, nom d’un nom, merci beaucoup.

Thank you very much indeed, Mr. Cook, for inviting me to contribute to the debate on clause 16. I shall leave it to the hon. Member for Somerton and Frome to deal with amendments Nos. 138 and 139, which deal with the point about which he spoke this morning—the age of the persons subject to recall. I shall concentrate briefly on our amendments Nos. 13, 14, 84 and 85, which fit into two sets.

One set deals with the power of the Secretary of State to make orders amending the number of days for the time specified in particular new subsections. Amendment No. 14 deals with the number of days that come under what was, until the Minister moved his amendment, the provisions on pages 11 and 12 of the Bill. About 40 pages of new amendments were tabled by the Government at the end of last week, so, not for the first time, they have come forward with a complete rewrite of the guts of clause 16. If we read the clause alongside the amendment paper, we would see a completely different animal.

Although my amendments do not now tag on in the same way to the latest set of Government amendments to clause 16, they allow us to discuss the powers of the Secretary of State. A moment ago, we heard the Minister claim reasons of administrative efficiency—he said that if the Conservative amendment were made, each time that we wanted to change the number of days we would have to amend the primary legislation. Well, there is nothing much to worry about if we have to get the Government to come back to Parliament to ask for permission to do things.

David Hanson (Labour, Delyn)

The hon. and learned Gentleman will know of the affirmative procedure. Any change made by the Secretary of State in the number of days would have to come before both Houses of Parliament anyway.

Edward Garnier (Conservative, Harborough)

I do know that, but it does not alter the fact that I find the giving of powers to the Executive—the handing away from Parliament of the ability to control in an effective way a Secretary of State—something difficult to live with. Given the great avalanche of legislation that is coming through, of course we understand that if we did not give the Secretary of State, of whichever Department, the power to amend primary legislation, we would be stuck dealing with statutory instruments or special debates on matters as detailed as adjusting the number of days that the Secretary of State, or rather the statute as the Bill will be by then, would apply to a recalled defendant.

As a matter of principle, we should not always nod through such matters. In too many cases, we have seen the Secretary of State taking unto himself powers to alter primary legislation. The affirmative procedure is better than nothing. I cannot remember whether the right hon. Gentleman has ever been in the Whips Office.

David Hanson (Labour, Delyn)

I have been.

Edward Garnier (Conservative, Harborough)

They know their trade. If the Minister is trying to persuade us that the affirmative procedure is an effective way of holding the Government to account, he is still wearing his Whip’s hat and he ought to get out more. I assure him that there is no better way of getting what he wants by bundling something upstairs with a short Committee process, particularly towards Christmas as hon. Members are busy concerning themselves over all sorts of other things but the matter in hand.

I do not need to expand on the argument; I have made my point and I think that old subsection (7) and old subsection (10) are just another set of examples of where we are losing control of the Executive and the Executive must be kept in check.

Through amendment No. 13, I want to add to clause 16 as previously drafted the requirement that a Crown court judge should agree before someone is released, not before he is recalled. In a sense this is a slightly fruitless conversation because what I am arguing about will no longer be part of the Bill if the Government have their way and their amendment No. 74 is made. However, let us struggle on and see how we go.

Proposed new section 254A(2) of the Criminal Justice Act 2003 states:

“If the Secretary of State is satisfied, on recalling a person to whom this section applies, that the person will not present a risk of serious harm to the public if he is released at the end of the period of 28 days beginning with the date on which he is returned to prison, then subsection (4) applies.”

Amendment No. 13 would insert at the end of that subsection:

“subject to the agreement of a Crown court judge.”

I am after some form of judicial input, so that it is not the Secretary of State—not a politician or the Executive—who is deciding when a recalled prisoner should be released. There should be something outside Government dealing with matters of this sort. That is precisely why in my amendment I include the board—the Parole Board—in relation to proposed new section 254B(3) of the Criminal Justice Act 2003, such that the section would read: “The Secretary of State must not release a person under subsection (2) unless the Secretary of State and the Board are satisfied that it is not necessary for the protection of the public that he should remain in prison.”

I am not trying to stop the release of people whom it is appropriate to release or to prevent the Secretary of State and the judicial system from recalling for periods limited to 28 days those who have committed breaches, because I can see that there is good sense in setting a short return period for those who committed breaches while on licence. What I do think is important—this is a constitutional point as much as a point of detail relating to the Bill—is that Secretaries of State should not have a direct say on whether somebody should be released or not, whether they are Secretaries of State in the ordinary sense of that term or whether we are using the term interchangeably just because the Lord Chancellor happens to be the Secretary of State for Justice. It should be either the Parole Board or some quasi-judicial or judicial input that makes the decision.

As I said earlier, this is a slightly unreal discussion because my amendments relate to a provision that the Government are not satisfied with themselves. They have taken it out and put in two and a half pages of their own revisions under Government amendment No. 74.

I will finish by making one or two general remarks about the 28-day automatic recall period. I think that that is sensible, based on the experience of the state of New York. The recall rules there have been changed in respect of people on parole who have committed minor acts of misconduct—they might have had a row with their neighbour in the next-door flat, or there has been a minor altercation over a parking space but it did not lead to anything of a serious criminal nature. Under the old rules in the state of New York, if reported to the police, those people were automatically recalled to continue to serve their life sentence in custody, and the prisons were becoming full of people who were perfectly safe but had had one minor loss of temper, which led to the recall. We do not need that. My understanding is the position in New York is that the behaviour of paroled prisoners on licence has improved markedly. The prisons run more efficiently and humanely as a consequence of not having a lot of people who are recalled for minor breaches.

If we accept the deal that people should be recalled only when necessary and if there is a limited 28-day period subject to all the safeguards so that if the man—I say man because it usually is a man—is a danger to the public, he will have to serve out a far longer period on recall, I would ask the Government to do me the deal of allowing the release from recall to have a far greater judicial input, and not to be a decision made by the Secretary of State.

We need clarification. This is not a flippant point—it arises from the intervention by the hon. Member for Somerton and Frome about the office of Secretary of State. Under the Constitutional Reform Act 2005, which attempted to do away with the office of Lord Chancellor, and the guarantee that was negotiated between the then Lord Chancellor Lord Falconer, and the then Lord Chief Justice, Lord Woolf, the holder of the office of Lord Chancellor is statutorily required to maintain and safeguard the independence of the judiciary.

Unfortunately, the Lord Chancellor is also the Secretary of State for Justice. Wearing that hat, he has a big spending budget and huge budgetary restraints are rained down upon him. Every time that we have a discussion about prison accommodation or capacity, that fact becomes increasingly apparent. However, at the same time, that same individual office holder has to protect the independence of the judiciary, and through various forms of semaphore and direct speech, the judges are being told to be careful about sending people to prison because the prisons are full.

I do not care what the right hon. Member for Blackburn calls himself, either in front of his shaving mirror or when addressing his Ministers. I know, because I have teased him about it, that he rather enjoys being called not only Lord Chancellor, but Lord High Chancellor. He loves wearing the official state robes. I do not deny him the joy of wearing those robes—perhaps one day not too far away they will be worn by a Conservative. There is another debate to be had about the importance of uniforms and the separation of the individual and the office holder. However, whether the current Secretary of State for Justice and Lord High Chancellor enjoys being called this, that or the other does not matter. What is essential, is that he separates in his mind his role as a spending political Minister, and his role as the protector of the independence of the judiciary. It is possible to do that, and it is essential that he does it under the current regime. However, it is increasingly difficult for the public to have confidence that he is doing it if, at the same time as being the Secretary of State who deals with prisoners on recall and releases them after 28 days to ease prison capacity problems, he does something that I suggest should more properly be done by the judiciary—controlling the sentencing and sentence plan of those who have been sentenced by the courts.

That will do for now, I think. I look forward to hearing from others who have something to contribute.

David Heath (Liberal Democrat, Somerton and Frome)

It was perhaps a mistake for me to have intervened, as it enabled the hon. and learned Member for Harborough to say most of what I was intending to say on the subject of the persona of the Lord High Chancellor. It is an important distinction. When we allow the Executive quasi-judicial powers, we must be careful and clear what we are talking about. There are some responsibilities of the Secretary of State for Justice in his capacity as Lord Chancellor which are inalienable, and which should not be available to other Secretaries of State. I say that simply because there is a statutory duty on the Lord Chancellor, and on his position as set out in the Constitutional Reform Act 2005.

This is a good example of one of those matters that should rest not with a common-or-garden Secretary of State, but with one who is charged with maintaining the interests of justice, and that is the role of the Lord Chancellor. It so happens that the Secretary of State and the Lord Chancellor are the same person, and that is fine. I do not have a problem with that. In legislation, however, it is helpful to make that distinction. Although my interjection may have appeared to be a debating point, it was slightly more serious. Where we intend the Secretary of State for Justice to take on a quasi-judicial role, it is helpful to specify the Lord Chancellor in statute for those purposes, so that we have no confusion and to remind everyone of the responsibilities involved.

I would like to say a few words about amendments Nos. 138 and 139, which stand in my name and that of my hon. Friend the Member for Cambridge and which have been subscribed to by the Conservatives. They brings us back to the issue of how we treat children and people under the age of 18.

In his opening remarks, the Minister said that he wanted the Parole Board to concentrate on the most difficult cases, where there was concern for public safety. I suggest is another area in which the Parole Board can be usefully engaged—where the person under recall is a vulnerable person himself. I suggest that young people fall into that category. This morning, we had a consensual discussion on the needs of young people within the penal system and our desire to keep as many as possible out of our prisons. One would assume from that that it is necessary to stop them returning to prison, as far as possible. If that is the case, having the assessment by the Parole Board seems to be a useful safeguard that would ensure that young people were not incarcerated additionally any more than is absolutely necessary for the purposes of the operation of the clause.

I am pleading a special case for the young person. The existing arrangements work reasonably well with regard to young people. I see why the Government are proposing the clause and do not argue against it as a whole, but I am saying that young people are a special case and asking the Minister to at least consider the possibility of pursuing the issue at a later stage.

David Hanson (Labour, Delyn)

I thank the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome for their support for the principle of fixed term recall. I am grateful, because I expected some political discussion around those issues, and I appreciate that they have made a judgment on that. The experiences in New York that the hon. and learned Gentleman described are apt.

With had that element of consensus, we have discussed the amendments before the Committee. The hon. and learned Gentleman raised the possibility of some form of judicial oversight or involvement in the decision-making process, rather than simply leaving it to the Secretary of State. The reason that we have not taken that route is simply one of scale and scope with regard to the determinations to date. I estimate the number of fixed term recalls that can be expected to happen in any one year to be approximately 4,500.

If I were to accept the amendment tabled by the hon. and learned Gentleman, those 4,500 cases might well have to go through the judicial process, which would add a significant burden to the work of the courts. During the discussions that we have had to date on this subject, I believe it has been shown that, regarding the cases that we have addressed—those of sexual or violent offenders—the Secretary of State has the ability to exercise discretion accordingly.

Edward Garnier (Conservative, Harborough)

If the Minister is going to have 4,500 people recalled for up to 28 days during a given year, does he anticipate that they will be recalled into category B, category C or category D prisons, or a mixture of all three? How will he make that assessment? Will the decision be made simply on the basis of the spaces available, on the basis of the original crime, or on the basis of the conduct that led to the 28-day recall?

David Hanson (Labour, Delyn)

We have to make risk assessments on all those matters, which are dependent on the reason for the recall, the activities involved and the advice that we receive in the first place about the level of risk in relation to the prisoner and the recall. So, there would be a range of mechanisms whereby individuals could be recalled to a range of prisons, based on the risk assessment that was undertaken at the time.

The hon. and learned Gentleman’s amendment seeks to have judicial involvement in that process of risk assessment. I suggest that that would place a significant burden on the courts, which the proposals before the Committee would avoid while still giving protection to the public, as there is a risk assessment of different categories of prisoner on recall. That would apply even within the first 28-day recall option for prisoners and on a second recall. There are opportunities for consideration accordingly.

The issue of parliamentary oversight and the delegation of powers to the Secretary of State is important. I value, as any Member of Parliament would, the rights of Parliament. For goodness’ sake, I spent five years in opposition—that is not as long as you spent in opposition in another role, Mr. Cook. Therefore, I know how important it is to have parliamentary oversight of the Executive, having spent a lot of time trying to secure that.

Proposals for a change to the amount of time on a recall would be subject to the affirmative procedure. I accept that I am a former Government Whip—in fact, I am the Whip who lost the former Member for Caerphilly during his sojourn, so my whipping credentials might not be that strong. Nevertheless, as a former Whip, I appreciate that there will still be debates in this House and in another place under the affirmative procedure. In those debates, I could not take for granted the votes of my right hon. and hon. Friends, and I certainly could not take for granted the votes of Members of another place. In another place, my party—and, indeed, the party of the hon. and learned Member for Harborough, were it to form a Government—would not have an overall majority. There are parliamentary and legislative safeguards with regard to this matter, and I hope that the hon. and learned Gentleman will be reassured by them.

Amendments Nos. 138 and 139 would remove the power of the Secretary of State to re-release following recall a young offender who had either been deemed unsuitable for a fixed term recall, or who was ineligible for such a recall because he was serving a sentence for a specified offence. Once again, I will reflect on what the hon. Member for Somerton and Frome has said, but I will also reflect on what I have said to the Committee to date, which is that the purpose of these provisions is to help to refocus the Parole Board on what I believe it should be doing: looking at the parole needs of serious, dangerous, violent and sexual offenders, and considering the recall of the most dangerous offenders in the system. It is important that the Parole Board focuses on those issues, because, in my view—the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston, who deals with many of these matters, would agree—the Parole Board is heavily burdened at the moment by a lot of work that could be done elsewhere just as effectively, efficiently and appropriately.

I hope that the Opposition amendments will not be pressed and that, given the consensus on the broad thrust of the new clause, which is essentially the old clause made simpler, there will be common acceptance by the Committee of the need for the changes on recall.

Clause 17

Clause 18

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 86, in clause 18, page 13, line 30, after ‘may,’, insert

‘with the approval of the Lord Chief Justice or a judge designated by him,’.

The amendment would mean that the provision in subsection (2) would state that the Secretary of State may, with the approval of the Lord Chief Justice or a judge designated by him, in the case of any life prisoner who has been released on licence, revoke his licence and recall him to prison.

The heading of clause 18—“Recall of life prisoners: abolition of requirement for recommendation by Parole Board”—seems to stand in contradistinction to clause 17, through which the Secretary of State appears to be bending over backwards to refer matters to the Parole Board. He seems to be going the other way with clause 18 and taking away from the Parole Board any power to intervene in these matters. I am not going to detain the Committee long on this amendment because my argument broadly mirrors those that I made about the constitutional propriety of allowing the Secretary of State to do things within the sentencing system that should more properly be done by independent judges or the Parole Board.

I understand the Minister’s point about the work of the Parole Board. We all know that it has had its budget slashed so that it has had to cut back on face-to-face interviews in prisons with offenders wishing to apply for release following consideration of their cases by the board. We all know that the number of cases that it has to deal with on paper only is growing. Although, to some extent, the Government have reversed the mistake that they made in taking away the resources that allowed the Parole Board to have more face-to-face interviews, the position is still pretty parlous. However, all of those inefficiencies and mistakes do not permit the Government to take unto their own hands the power that they wish to have under clause 18.

As I said, I draw a comparison between clauses 17 and 18 because the influences seem to be going in different directions. Under clause 16, the Secretary of State wants not only to decide for himself what goes on, but to have the power to change the number of days of the automatic recall. I think that the arguments have been adequately described both now and on another occasion. I hope that the Minister can satisfy me that this clause, if it is not amended, is a good one.

David Heath (Liberal Democrat, Somerton and Frome)

I rise briefly to agree entirely with the arguments made by the hon. and learned Gentleman. The Minister said earlier that he wanted the Parole Board to concentrate on the most serious cases. Well, this is the most serious case in terms of a restriction in liberty. This is the revocation of a licence given to a person under an indeterminate sentence. It should have at least a degree of judicial oversight. I believe that a judge should take the decision, but I am prepared to accept a decision taken by the Lord Chancellor in conjunction with a judge. I find it difficult to accept purely a decision of the Executive effectively to deprive a person of his liberty, sine die, on grounds given by an elected Minister, rather than through a judicial process. I thus support the view expressed by the hon. and learned Gentleman.

David Hanson (Labour, Delyn)

Again, I hope that there is an element of commonality between both Front Benches in the sense that I, too, want to ensure that the decisions taken are correct and proper, and that a potential offender who will lose their liberty has the right to have their case reviewed later. Under the clause, all recalled offenders are entitled to be notified of the reasons for their recall and to see material on which that recall decision is based. Their case will also be referred to the independent Parole Board so that the recall can be reviewed, and the Parole Board has the power to direct that such prisoners are immediately re-released.

The question arising from the amendment is whether a Lord Chief Justice, or a judge appointed by him, should authorise the recall of life-sentence prisoners before that process occurs. In my opinion—I accept that it is only my judgment—the possibility for that judicial oversight before the recall occurs would cause delay and, perhaps, some great difficulties in managing the system. It could also put the public at risk.

Edward Garnier (Conservative, Harborough)

I would not prevent a potential offender from being arrested and held in custody while the matter was considered, but something more than simply the Secretary of State’s signature is needed. We should bear in mind that the relevant person will not actually be the Secretary of State. As in the old Home Office days, a designated Minister in the Department will have responsibility for this aspect of implementation. He or she will be advised by a host of lawyers and civil servants, so the decision will be made deep in the recesses of bureaucracy. The Minister will have to stand up and defend this in Parliament if things go wrong, but this will be very much a bureaucratic and administrative decision. We are moving the criminal justice system further and further away from judicial oversight or involvement.

David Hanson (Labour, Delyn)

This might not be the hon. and learned Gentleman’s intention, but I should be very interested to know the basis on which a prisoner could be recalled and held in custody while waiting for a judge to authorise that recall in the scenario that he describes. We need to look at those issues, but he says that the recall could be authorised, and an individual could be taken off the streets, because they were a risk or had broken the terms of their licence, and that they could be put in a police cell to await the sitting of a High Court judge or the Lord Chief Justice to authorise that recall to prison.

Under our current proposals, that recall can occur. It is immediate. It removes the offender from whatever place of safety they may be in, for the good of either the public or themselves, and may relate to any offences that they might have committed. It allows Parole Board oversight of the decision subsequently.

The hon. and learned Gentleman’s amendment would include a provision, which may be helpful or not, for the judiciary to examine the relevant issues. However, such a procedure would be bureaucratic, slow and may involve the judiciary having to sit at evenings, weekends or different times of the week to have oversight to ensure that those recalls occur—and recalls are often undertaken speedily. For those reasons, I am happy to reflect on judicial involvement, because we can always have discussions about such matters, but I am satisfied that there is sufficient public safeguard for the public and the judicial system in having the decision about the potentially recalled offender overseen by the Parole Board, post recall occurring.

David Heath (Liberal Democrat, Somerton and Frome)

Perhaps the Minister will remind the Committee what the situation is now and whether the slowness or the bureaucratic nature of the process has been regularly brought to his attention or to that of the House. I am not aware that that has been a problem.

David Hanson (Labour, Delyn)

My point is that, under amendment No. 86, tabled by the hon. and learned Member for Harborough, the Lord Chief Justice or a judge appointed by the Secretary of State, would be required to authorise the recall of life sentence prisoners.

David Heath (Liberal Democrat, Somerton and Frome)

At the moment, it is a Parole Board recommendation: first the person is arrested, then there is a recommendation from the Parole Board to the Secretary of State, who makes a decision. It is hard to see that there would be an extended process beyond what currently happens.

David Hanson (Labour, Delyn)

Most recalls are already undertaken using emergency powers. My assessment—again, this a matter of judgment—is that the proposal for the Lord Chief Justice or a judge appointed to authorise the recall of life sentence prisoners would inevitably mean delay and additional work for the courts and, potentially, no swift return of dangerous, violent prisoners to complete their sentences if their behaviour caused concern. I am making that judgment and simply saying to the Committee that safeguards are in place. On that basis, I ask the hon. and learned Gentleman to ask leave to withdraw his amendment.

Edward Garnier (Conservative, Harborough)

I shall put the Minister out of his misery: I will ask the Committee’s leave to withdraw my amendment, but I want to ask him a question. First, he reckons that we are talking about some 4,500 likely offenders a year being recalled for breaching their licences, which is fewer than the number who apply to the Parole Board for early release from prison on licence.

Secondly, judges like to get a good night’s sleep, just like anybody else, but I assure the Minister that judges are available 24 hours a day, in the criminal and civil jurisdictions, to deal with cases that need to be dealt with immediately as a matter of urgency. They can be got out of bed, contacted via the telephone and got off the golf course, if necessary, to reach a decision that they have to take, so we need not worry too much about their being disturbed in that sense. However, we do need to worry about Ministers encroaching on the powers of the criminal justice system beyond their constitutional rights as elected Ministers. Although we do not have a formal constitution—our constitution is not written in one document, but in lots of different places and in various conventions, and so forth—we understand the separation of powers.

I accept that, very often, for reasons of convenience, be it administrative, executive or otherwise, the boundaries between the Executive and the judiciary and the legislature are blurred. However, every now and then we ought to recognise that those separations exist for a purpose: to protect us, to enhance the rule of law and to control the Government, otherwise we are wasting our time. I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

On a point of order, Mr. Cook. I want to make a suggestion now so that you have a while to consider it before reaching a decision. Government new clause 29 appears on the amendment paper for consideration under clause 26. However, new clause 28, which deals with the powers of the Court of Appeal criminal division, is not grouped with amendments under clause 26. Presumably, it will be dealt with separately after clause 129 as one of the new clauses listed on page 3 of the amendment paper. It is entirely a matter for you, Mr. Cook, but you might find it more convenient to have the new clause 28 debate, which fits in with clause 26, when we discuss that clause rather than at the end. I simply make that suggestion and invite your opinion on it in due course.

Frank Cook (Labour, Stockton North)

That is a fair point. Thank you for that guidance. Bearing in mind the progress that we have not made today, that might be a question for another Chairman at our next sitting. The much more realistic point is that we could do what the hon. and learned Gentleman requests if the Committee were of a mind to agree to it, but at the moment it is questionable whether the Minister has papers prepared that far forward. We do not need to come to that proposal yet, just to be aware that it may transpire.

Clause 21

David Hanson (Labour, Delyn)

I beg to move amendment No. 21, in clause 21, page 16, line 19, leave out from ‘been’ to ‘but’ in line 21 and insert

‘dealt with by such a court for any offence other than the offence and any connected offence on only one previous occasion’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following amendments:

No. 140, in clause 21, page 16, line 19, leave out

‘of only one offence other than the’

and insert

‘on only one occasion for an’.

No. 141, in clause 21, page 16, line 21, leave out from ‘offence’ to end of line 22 and insert ‘; or

(iii) if they have previously been referred to a youth offender panel under section 16 above, a further referral has been recommended by—

(a) a member of a youth offending team,

(b) an officer of a local probation team, or

(c) a social worker of a local authority.’.

David Hanson (Labour, Delyn)

I hope this will not take too long, Mr. Cook. The amendment tabled by the hon. and learned Member for Harborough has ably anticipated mine. I hope that Government amendment No. 21 provides the clarification that his amendment seeks, namely that an offender may be given a referral order if he has previously been convicted on one occasion. It is the case that offenders are often convicted on one occasion for more than one offence and we do not wish to rule out such cases. I hope that there will be agreement across the Committee to the amendment.

David Burrowes (Conservative, Enfield, Southgate)

I am grateful for the Minister’s acknowledgement of our foresight and diligence in tabling the amendment, which has been followed dutifully by the Government, as in other policy areas. I do not wish to split hairs on amendments Nos. 21 and 140, which are very similar, and although ours is clearer and simpler, I would not wish to divide the Committee on the words.

Amendment No. 141 takes things a stage further. It does not deal just with the issue that was the subject of the previous amendments in allowing the flexibility and extension of referral orders to cover those cases when a defendant has been convicted on a previous occasion. We seek to allow a situation where, with a defendant who has had a referral order made against him in respect of a previous conviction, the court is enabled to decide in the particular circumstances whether to extend a further referral order. That often occurs in the youth courts where, sadly, referral orders are sometimes not implemented for weeks or months after the first visit with the youth offending team outside court and the defendant can commit another offence and come back before the court. The court is often proscribed from allowing a further referral order to be imposed even though the intent behind the order might work.

There are cases where it would be thoroughly inappropriate to impose another referral order: the defendant has had their chance to be diverted away from the criminal justice system and they should not have an additional opportunity, but there are instances where a defendant has committed another minor offence or one unrelated to the original one that was subject to the referral order.

Maybe there are circumstances where the referral order has not had its true impact on the defendant for reasons that may not be their fault, where it should be open to the court to have the flexibility to impose an additional referral order or, indeed, an extension. Amendment No. 141 seeks to provide for that and allow the insertion of an extra subsection to say that:

“(iii) if they have previously been referred to a youth offender panel under section 16 above, a further referral has been recommended by—

(a) a member of a youth offending team,

(b) an officer of a local probation team, or

(c) a social worker of a local authority.”

In those circumstances, given the intention in the clause to extend the flexibility and applicability of referral orders, I would like to move amendment No. 141.

David Hanson (Labour, Delyn)

Amendment No. 141 would allow, as the hon. Member for Enfield, Southgate has just indicated, the award of a second referral order, if that has been recommended by the youth offending team, an officer of the probation team, or a social worker from a local authority.

I do not wish to see referral orders used for a second time, for reasons that I shall outline to him. If a young person has reoffended, they have failed the referral process and not taken the opportunity that has been given to them to correct their behaviour at the first referral order. The referral order principle works on the basis of restorative justice, with the offender being made to face up to the effect that their offence has on others, taking responsibility for their actions, and making restoration to their victims. We have deliberately designed the sentence to be targeted at those who receive a court sentence for the first time, where they plead guilty. Pleading guilty demonstrates an acknowledgement of the events and is an indicator that the young person is suitable for the restorative justice approach, in terms of facing up to their offences and talking to their victims.

We are extending the referral order to be available on second conviction, if not used previously, because those people have not had the opportunity to undergo the referral process. I must say to the hon. Gentleman that the purpose of the youth rehabilitation order that we have put in place is, under the terms of the Bill, the next stage in relation to a failed referral order, and I ask him to reflect on that and to withdraw his amendments, and I ask the Committee to accept the Government amendment.

David Burrowes (Conservative, Enfield, Southgate)

I ask the Minister to reflect on the particular instance where, in a sense, the referral order has not failed, albeit that the defendant has committed a further offence.

I can think of a number of circumstances where the referral order has not had any real impact beyond the first meeting at court, there has been no real implementation and the restorative appointments have not taken place. In a sense, the failure of the order has not necessarily been the fault of the defendant, when it is subject to the recommendation of the very people who perhaps know best: the youth offending team, the local probation team or a social worker. The point of the amendment was to allow flexibility to the court, so I would like the Minister to consider such exceptional examples where a referral order before the court has not necessarily totally failed, because it has not really started. The amendment would allow flexibility in those circumstances even though a further offence has been committed.

Given that the Minister is willing, by implication, within the clause, to give a second opportunity to those who have previously been convicted to be diverted from the system, the amendment could extend a second opportunity to those in respect of whom the referral order has not had its full impact. I do not wish to press the amendment to a vote, but ask the Minister to reflect on the matter.

Frank Cook (Labour, Stockton North)

That amendment has not been moved formally.

David Burrowes (Conservative, Enfield, Southgate)

On a point of order, Mr. Cook. I recall formally moving the amendment.

Frank Cook (Labour, Stockton North)

No, the debate was on Government amendment No. 21 and we were considering the amendments Nos. 140 and 141 incidentally.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: New clause 7—Sentencing of young offenders—

‘(1) Section 16 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (duty and power to refer certain young offenders to youth offender panels) is amended as follows.

(2) Omit subsection (2).

(3) In subsection (6) omit “(2) or”.

(4) In consequence of the amendments made by this section, the heading to section 16 becomes “Power to refer certain young offenders to youth offender panels”.

(5) Section 17 of that Act (the referral conditions) is amended as follows.

(6) In subsection (1)—

(a) for “16(2)” substitute “16(3)”, and

(b) for “compulsory” substitute “discretionary”.

(7) In subsection (1A) after “conditions”, insert “also”.

(8) In subsection (3)—

(a) omit “the compulsory referral conditions or”, and

(b) for “16(2) or (3) above (as the case may be)” substitute “16(3) above”.

(9) In section 19 of that Act (making of referral orders: effect on court’s other sentencing powers) omit subsection (7).’.

New clause 15—Extension of a referral order—

‘(1) Schedule 1 to the Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

(2) In paragraph 5(1) for “power” substitute “powers”.

(3) For paragraph 5(2) substitute—

“(2) Those powers are the powers to revoke the referral order (or each of the referral orders) or extend it by up to 3 months.”.

(4) In paragraph 5(5) for “so dealing with the offender” substitute “revoking an order for an offence specified in sub-paragraph (4).”.

(5) In paragraph 5(6) after “The appropriate court may not exercise the” insert “revocation”.’.

David Burrowes (Conservative, Enfield, Southgate)

The intent of the referral orders is primarily to divert young offenders from the criminal justice system and that is welcome. If they are fully implemented and funded, including all of the restorative elements and the whole package, they will work. Moving young offenders away from the criminal justice system must be to everyone’s benefit.

There is a concern that there should be appropriate flexibility, as proposed in new clauses 7 and 15. New clause 7 would substitute for the compulsory element within the referral orders the discretion that was sought in the evidence sessions by the Magistrates Association, which said that, particularly in relation to high-end offences, it would like the flexibility not to use referral orders. That is not proposed in the Bill.

Currently, a referral order must be given for the first offence when an offender pleads guilty and the offence is imprisonable. The only alternative that applies to very serious offences is custody. That is the concern. There are cases of robbery where the term is not sufficient to warrant being referred to the Crown court. There are offences of serious sexual assault that could be determined to come within the youth court jurisdiction. When dealing with a defendant who has no previous convictions and who pleads guilty at the first opportunity for such serious high-end offences, the courts do not have the discretion to decide whether to propose a referral.

The courts are often left in the invidious position of having to decide whether to impose a referral order or a custodial sentence. They may be reluctant to impose a custodial sentence and want the discretion to impose a substantial community order. That is not available to them under the Bill. The flexibility that magistrates would properly want when dealing with that high-end penalty is not available. These new clauses would provide that necessary discretion to enable magistrates to deal with penalties in an appropriate manner, particularly for serious crimes. That flexibility would avoid the inevitable step that we have talked about in earlier debates of an increase in the population of young offenders in detention. The new clauses would allow the magistrates another weapon in their armoury to stop the defendant reoffending, whereas custodial sentences often do not have that effect. I invite the Minister to consider them and the point about flexibility that the Magistrates Association quite properly made.

I hope that the Minister will also deal with the practical aspect of referral orders. I have said previously that there is concern that many referral orders are not implemented in a timely fashion, and that the additional referral orders that will be an inevitable result of the Bill will lead to costs. The impact assessment states that those costs will be offset by a reduction in reconviction rates, but will the Minister provide more details of that assumption? There will inevitably be costs, and the concern is that they need to be properly built into the system to enable youth offending teams fully to implement referral orders.

I understand that the Youth Justice Board is considering referral orders in relation to the roll-out of restorative programmes, which will all cost money if we are to give true effect to referral orders. There is concern that that must come to fruition—the additional referral orders need to be properly funded. Another matter on which a good opportunity is often not taken is rehabilitation for those with drug and alcohol addictions. Often, developing a youth offender from the criminal justice system requires proactive and immediate attention and treatment for such addictions. That does not happen, because of the paucity of adolescent services. It is important that the Government take that on board if they want to give true effect to the good intentions behind referral orders.

David Hanson (Labour, Delyn)

I thank the hon. Member for Enfield, Southgate for his new clauses. I shall deal first with new clause 15, which would provide the courts with a power to extend a referral order for up to three months. There is some merit in that proposal, and I am happy to examine it in detail. As I have said, an order should be subject to a maximum 12-month time limit, but within that there is the potential for it to be extended for up to three months for failure to comply or when it is impractical for the child or young person to comply. There is an argument, and the hon. Gentleman has made it, that there should be some flexibility, particularly if circumstances are beyond the control of the young person, to prevent them from completing the contract in the initial term. I ask the hon. Gentleman not to press new clause 15 on the basis that I shall consider it in detail and see whether we can bring forward something that meets his objective positively.

New clause 7, as the hon. Gentleman said, addresses a concern raised in oral evidence by the Magistrates Association, which was concerned about the compulsory conditions applying to referral orders. Its view was that, for more serious first offences to which the defendant pleads guilty, it should be open to the court to give a youth rehabilitation order with robust requirements rather than make the required referral order. The hon. Gentleman eloquently put that case again.

When a referral order is made, the young offender must agree a programme of action with a youth offender panel to form a youth offender contract, which may include such things as paying compensation, attending mediation sessions with a victim, carrying out unpaid work or participating in specified activities such as those that assist a young person to deal with drug or alcohol abuse. In short, the referral order is in place to deliver a restorative justice approach through a consideration of not just the causes of difficulties but how reparations can be made and mediation undertaken, based on offenders engaging with the court process for the first time. Restorative justice can be effective for young offenders who have not previously thought about the impact of their offending behaviour on others and the communities in which they live and work. I strongly appreciate that courts do not like to have their discretion fettered, but I believe that we have a strong case for the referral order to be maintained in its current position. It currently has the lowest reconviction rate of all juvenile sentences, at just over 44 per cent. It is an effective use of reparation for the prevention of reoffending, and I want to continue to provide that option for all those who qualify.

The terms of the contract can be robust and the penal power of that is strong. There is an opportunity for the case to be referred back to court for resentencing if the young offender fails to comply, but I believe that it is currently in the right place, and I support the position of the referral order on the face of the Bill. With those few comments, I hope that the hon. Member for Enfield, Southgate can accept my kind offer to look at new clause 15, but I ask him to withdraw both new clauses for the reasons that I have outlined.

David Burrowes (Conservative, Enfield, Southgate)

I am grateful to the Minister for his kind offer—I am always interested in considering kind offers from anyone, but whether I accept them is another issue. In relation to new clause 15, I am certainly willing to accept the offer to deal with the issue of flexibility. In a sense, that is the second bite of the cherry and relates to the wonderful amendment No. 141, which I was not able to move. The new clause provides the opportunity for flexibility in those instances when the referral order has not been able to be properly implemented. Therefore, I welcome the Minister’s indication and, in that regard, do not wish to press the new clause to a vote.

I would like the Minister to reflect further on new clause 7 and on the circumstances that the magistrates have outlined to us in Committee and which others have seen in many youth courts. Magistrates often feel obliged, given the seriousness of an offence, to move towards the custodial option. Given the concern about the ever-rising prison population, it is important to take seriously magistrates’ concerns that these offences are dealt with more often than not by way of a custodial option and not a referral order—we have already looked at ways by which that could be stemmed and the high rate of custodial sentences can be reduced

In a magistrate’s mind, it is not in the interests of justice or the public to deal a referral order for a serious case, such as sexual assault or robbery, through a referral order; if the defendant complies with that order fully, their conviction would effectively be spent and it will not be on the record. As far as the magistrates will be concerned, the defendant would basically be getting off for a serious offence. They often consider such an offence differently from those less serious cases that can properly be dealt with through a referral order. I do not wish to press the new clause to a vote or take any more time, but I invite the Minister to look at those particular circumstances and how those concerns can be alleviated.

Clause 22

David Burrowes (Conservative, Enfield, Southgate)

I beg to move amendment No. 89, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘50’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 90, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘45’.

Amendment No. 91, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘35’.

Amendment No. 92, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘30’.

Amendment No. 93, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘25’.

Amendment No. 94, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘50’.

Amendment No. 95, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘45’.

Amendment No. 96, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘35’.

Amendment No. 97, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘30’.

Amendment No. 98, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘25’.

Clause stand part.

David Burrowes (Conservative, Enfield, Southgate)

I do not propose to take too much of the Committee’s time on these amendments, whose purpose is to probe the Government on the figures that they have chosen, which are essentially to provide an alternative to a requirement of 40 hours of unpaid work and substitute 20 where there has been a breach of a community order.

David Hanson (Labour, Delyn)

As a minimum.

David Burrowes (Conservative, Enfield, Southgate)

That is quite right. The point of the amendments is to consider a sliding scale and whether that minimum could be set on the sliding scale between 20 and 50. Without getting too wrapped up in the individual numbers, could there be more flexibility explicit in the Bill to ensure that magistrates do not feel that they have to work to a prescribed level when dealing with a breach of a community order? That is the point of the amendments.

Let me turn now to the stand part debate. The concern is about dealing with defendants who have breached the community order and the need to impose an unpaid work requirement. Such people, who would no doubt often have a rehabilitation order imposed on them rather than a community punishment order, may not be suitable for unpaid work when that order is made. They might have health issues, or they may be an addict whose probation officer has determined that they are unsuitable for unpaid work. They would come before the magistrates after breaching the community order and, on the face of it, would not be eligible for the imposition of unpaid work. The concern is about whether the clause would impose an inappropriate sentence on those defendants.

I would also like the Minister to consider the question of flexibility. Magistrates might often want, not always as a matter of compulsion, to impose an additional penalty when there is a breach. Will the Minister also consider the unusual circumstances in which an order might break down through no fault of the defendant beyond a technical non-compliance? There might be a need to consider discretion.

David Heath (Liberal Democrat, Somerton and Frome)

As the hon. Gentleman knows, I have not often departed from much of what he has had to say. It seems, however, that his amendments would do the opposite of what he hopes that they would achieve. Do they not reduce the discretion available to the court by inserting a higher figure for the minimum work requirement that the magistrates court can impose? Perhaps I have misread the provisions of the original clause, but that was certainly the impression that I was given.

David Burrowes (Conservative, Enfield, Southgate)

I am grateful for the intervention, which enables me to clarify. The purpose of the amendment, which could perhaps be better drafted, is to ensure flexibility in the numbers for the hours of unpaid work that are available. I wanted to draw out a comment from the Minister about why the Government have settled on 20 as a minimum, rather than another number, and to make the more general point about the suitability of such an order in some circumstances.

David Hanson (Labour, Delyn)

The clause attempts to set the minimum number of hours that may be imposed as a penalty when an offender breaches a community order. At the moment, the minimum figure is 40 hours. The Bill would set a minimum of 20 hours, while the amendments range from 20 to 50, which is above the above the current minimum.

The minimum of 40 hours that can be imposed as a penalty is, in some cases, too severe a response. I have attempted to take the approach that a minimum of 20 hours will be examined by the courts in the event of a breach. There is a precedent for 20 hours. Section 300 and schedule 31 of the Criminal Justice Act 2003 allow unpaid work of at least 20 hours to be imposed for fine default as an alternative to committal to prison. We have tried to establish that baseline, linked to the 2003 Act.

The amendments would replace the proposed 20 hours with a larger figure. In some cases, they would increase the current minimum of 40 hours and, in others, they would decrease it. I believe that 20 hours is a fair minimum. It could obviously be increased at the discretion of the sentencers. The new minimum will be a far better figure in terms of the fairness of the penalty than the current minimum of 40 hours.

We are attempting to examine this in detail and the current minimum applies only to those community orders that do not already have an unpaid work requirement. Where there is such a requirement, there is no minimum to the amount of unpaid work that may be added for the breach. The danger is that, where a court feels that adding 40 hours is too much, it may instead resentence the offender, possibly even to a short period of custody. My intention is reduce the minimum to 20 hours. I ask the hon. Gentleman to reflect on whether he wants to have a different minimum and whether in reality he wants to increase the minimum from 40 hours to 50 hours. Having got to know him over the last few weeks, I suspect that he would not wish to do that. I urge him to accept our minimum of 20 hours and withdraw his amendment accordingly.

David Burrowes (Conservative, Enfield, Southgate)

Having heard the rationale for 20 hours, I will not press the amendment. However, I ask the Minister to respond at some point to our concerns about the imposition of unpaid work requirements on those defendants who have already been found not to be suitable for such unpaid work, which led to the original imposition of a rehabilitation order. There is a concern that this order should not set up claimants to fail. That important flexibility is needed within the system. I beg to ask leave to withdraw the amendment.

Schedule 5

Clause 26

Maria Eagle (Labour, Liverpool, Garston)

I beg to move amendment No. 207, in clause 26, page 19, leave out lines 33 to 38 and insert—

‘“(1A) For the purposes of subsection (1)(a), the conviction is not unsafe if the Court think that there is no reasonable doubt about the appellant’s guilt.

(1B) Subsection (1A) does not require the Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the conviction to stand.” ’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following amendments: No. 100, in clause 26, page 19, line 34, at end insert

‘and they have a certificate from the trial judge confirming that the evidence heard by him and the jury was sufficient to prove the prosecution case and that he had admitted and the jury had considered, and been directed by him in relation to, the relevance of any evidence of the procedural or other misconduct.’.

Government amendments Nos. 208 and 209.

Amendment No. 101, in clause 26, page 20, leave out line 14 and add

‘may, as the Court think fit in the interests of justice in that case, either direct that there be a retrial or that the appellant be acquitted.”’.

Amendment No. 102, in clause 26, page 20, line 14, at end add

‘, who must initiate or not initiate such criminal or civil proceedings (or both) as he thinks best suit the justice of the case (taking into account the impact on the victim of the offence or his family of his decision either to proceed or not) and which decision either to proceed or not will provide the most suitable redress to the subject of such misconduct, deter any such misconduct in the future and restore public confidence in the criminal justice system.”’.

Clause stand part.

Government amendment No. 210

Government new clause 28—Power of Court Of Appeal to disregard developments in the law—

‘(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.

(2) In section 2 (appeals against conviction), after subsection (1B) (as inserted by section 26(2)) insert—

“(1C) In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction.”

(3) In section 13 (disposal of appeals against verdict of not guilty by reason of insanity), after subsection (1B) (as inserted by section 26(2A)) insert—

“(1C) In determining for the purposes of subsection (1)(a) whether the verdict is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the verdict.”’.

(4) In section 16 (disposal of appeals against finding of disability), after subsection (1B) (as inserted by section 26(2B)) insert—

“(1C) In determining for the purposes of subsection (1)(a) whether a finding is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the finding.”

Amendment (a) to new clause 28, in subsection (2), after ‘case’, insert

‘and are satisfied that it would not give rise to substantial injustice’.

Government new clause 29—Meaning of unsafe: Northern Ireland.

Government new clause 30—Power of Court of Appeal to disregard developments in the law: Northern Ireland.

Maria Eagle (Labour, Liverpool, Garston)

It is quite a relief after this length of time finally to be able to welcome you to the Chair, Mr. Cook. You have been here for some time and I feel that I have neglected the courtesies, as it were. It is only because I have not managed to get to my feet yet. Now that I am on my feet, it might be some time before my right hon. Friend the Minister of State, Ministry of Justice and my hon. Friend the Home Office Minister get to do their bit. None the less, the theatrical profession always thinks that delayed entrances have something to be said for them. We will just have to see whether the Committee agrees with that by the time we get to the end of this group of amendments. At least I hope that the Committee will be glad that we have managed to move up a group. I hope that the hon. and learned Member for Harborough is happy to acknowledge that we are trying to be as flexible as possible even if all of our notes are not always available.

In respect of these amendments, the Committee will recall the extensive debate about quashing convictions at the beginning of the Public Bill procedure. Indeed an extensive amount of consultation and thought went into those areas long before either I or my right hon. Friend came into the Department. None the less, with Government amendment No. 207, which I am pleased to be able to move, we are now able to come to the Government’s considered view of how we ought to go forward. I look forward to debating with members of the Committee and others to see whether they think that we have got it right and also to dealing with the other amendments that have been tabled to deal with these issues.

The policy that clause 26 seeks to reflect is that it is not right that the Court of Appeal should be obliged to quash convictions as unsafe because of procedural irregularities when there is no doubt that the appellant was guilty of the offence. That is the mischief that we are trying to deal with in respect of these points. Our objective is to ensure that the appellant’s right to due process of law does not automatically override the need to ensure that appellants who are plainly guilty remain convicted. As the Secretary of State for Justice and Lord Chancellor said on Second Reading, such a change requires only a small adjustment to the law. We are not seeking to imply any criticism of the Court of Appeal. His statement on Second Reading reflected a change of view by the Government in that we agree on reflection that the convention exception, which is currently in new subsection (1B) as it stands, does not go far enough in providing that extra protection. We need to ensure that new subsection (1A) does not prevent the court from allowing an appeal even when the appellant’s guilt is not in doubt and when there has been serious misconduct by the investigating or prosecuting authorities. It is with that aim in mind that we have tabled Government amendment No. 207.

Government amendment No. 207 amends new subsections (1A) and (1B). The revised version of new subsection (1B) ensures that the Court of Appeal retains a discretion to allow an appeal if it thinks that it would seriously undermine the proper administration of justice to allow the conviction to stand. That is a change from the current wording that the Committee members will see in the Bill as published.

Amendment No. 207 provides for a wider exception than the published new subsection (1B) in the Bill, so it impinges more upon the operation of new subsection (1A). We believe, however, that that will cover all the circumstances that will be caught by the existing convention exception as it is set out in new subsection (1B) in the Bill, but it will go further, allowing convictions to be quashed when there has been serious misconduct by the investigating or prosecuting authorities, and we are back to the Mullen-type cases that we had a debate about earlier. [Interruption.] The hon. Member for Somerton and Frome sounds like an old record because I have heard him say it before.

David Burrowes (Conservative, Enfield, Southgate)

How many cases are we dealing with for the Government to seek to change the status quo?

Maria Eagle (Labour, Liverpool, Garston)

There is no doubt about the fact that it is a small number of cases. They are the kind of cases that can significantly damage the reputation of the criminal justice system as a whole if they are allowed to proceed as they have in the past with convictions of the plainly and incontrovertibly guilty being quashed at a later date. As I said at the beginning of my remarks, that is the mischief that the clause and these amendments to the clause seek to address. That has been the case all the way through the consultations that have taken place, resulting in the clause as it was originally drafted and in the changes that we are now proposing.

It is not a question of there being thousands of cases affected by this issue. Only a small number of cases are affected, but they are cases that, if they are allowed to stand—as the current law suggests they would—could do a disproportionate amount of damage to the reputation of the criminal justice system.

David Burrowes (Conservative, Enfield, Southgate)

On the subject of the number of cases, the consultation paper on the regulatory impact assessment for quashing convictions says that the potential number of individual convictions affected before the new amendments will be very small, probably fewer than 20 each year. If the new amendments are made, would even fewer cases be affected?

Maria Eagle (Labour, Liverpool, Garston)

The new amendments would give the Court a wider discretion than was the case in the Bill originally. So it would be for the judges and justices to consider the individual circumstances of the cases that come up. Nevertheless, a small number of cases would be affected—perhaps fewer than 20 or slightly more. However, given that the discretion is wider, it would be for the judges to decide, in the appropriate circumstances, whether to quash a conviction, even though the person is plainly guilty, or whether they feel that that conviction can still stand. In any event, we are talking about a small number of cases, but cases that, as I have said, can do a great deal of damage to the reputation of the criminal justice system if they continue. If we did not believe that to be the case, we would not seek to make the changes that are in the clause and we would not have had the consultations that we have.

Amendment No. 207 would also replace new subsection (1A). The revised version is designed to clarify that the Court of Appeal is a court of review, which we all know it is, and is not required to decide afresh whether it is satisfied of the appellant’s guilt. So, instead of the test used in the present subsection—that the Court is satisfied that the appellant is guilty, which might give rise to the view that it has to retry the case or be satisfied of the facts, as was the first instance court—new subsection (1A) says that the Court must say that it thinks there is no reasonable doubt about the appellant’s guilt. New subsection (1A) does not have the ambiguity of the existing draft. We hope that that clarifies matters.

Amendments Nos. 208 and 209 are consequential amendments, to apply the changes effected by clause 26 to two other provisions, namely sections 13 and 16 of the Criminal Appeal Act 1968, which also make use of the same test of unsafety. New clause 29 is the Northern Ireland equivalent of clause 26. We are dealing with new clause 28 now, rather than at the end of proceedings.

David Heath (Liberal Democrat, Somerton and Frome)

Why was the decision taken that this measure now needs to be extended to Northern Ireland, when that was not the view when the Bill was first drafted?

Maria Eagle (Labour, Liverpool, Garston)

In my experience, that is normally a matter of consultation with the jurisdiction and establishing whether people there want this measure to apply. One would expect that, after those consultations, the Northern Ireland criminal justice system suggested that it would want the clauses to apply there. I imagine that that is why new clause 29 is here.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister confirm that the Northern Ireland Human Rights Commission said that part 3 does not extend to Northern Ireland and that it welcomed that?

Maria Eagle (Labour, Liverpool, Garston)

I do not have any comment to make about what the Northern Ireland Human Rights Commission has said. It may well have said that, but I am not responsible for the criminal justice system in Northern Ireland and we are including the new clauses that relate to Northern Ireland because the Northern Ireland jurisdiction has asked us to save it the difficulty of finding other vehicles to do so. It obviously sees the sense of these measures in respect of Northern Ireland and we are merely acceding to those requests. If I am wrong about that—I suspect that I am not—I will obviously get back to the hon. Gentleman, but that is the case as I understand it.

Edward Garnier (Conservative, Harborough)

I am provoked by the intervention to look at clause 127, which deals with the extent of the Bill. I may not be reading it carefully enough, but I cannot see a reference to clause 26 in clause 127 that extends to Northern Ireland. I may have got that completely wrong.

Maria Eagle (Labour, Liverpool, Garston)

I shall have to rely on others to check that, but I hear what the hon. and learned Gentleman says. I hope that he will bear in mind the fact that I was not anticipating dealing with new clause 28 and all of these matters at this point. I hope that he will give me a certain amount of leeway.

New clause 28 amends section 2 of the Criminal Appeal Act 1968, and gives the Court of Appeal the discretion to disregard developments in the law since the date of conviction. During the various consultations on what has turned into clause 26, members of the Committee will be aware that it was brought to the Government’s attention that there was a lacuna in the current legislation, which new clause 28 will fill.

The matter arises from the judgments in the cases of R v. Cottrell and R v. Fletcher. In those instances, two appellants who had clearly committed acts of unlawful sexual intercourse with a girl under the age of 16, could not be prosecuted for that offence because a statutory time limit had applied at the time at which they were prosecuted. In accordance with the usual practice at the time, they were instead charged with indecent assault, to which the time limit did not apply, and were convicted.

Subsequently, the House of Lords decided that it was impermissible to charge indecent assault in such circumstances, and after that decision, the Court of Appeal had no option but to consider the law in its present state when one of these cases was referred. It was reluctant to quash a conviction in which the appellant was properly convicted under the law as it was when the person was tried, and would normally avoid having to do so by refusing leave to appeal out of time. However, there are some circumstances in which a case that is referred to the Court of Appeal does not need leave, particularly where those cases are referred by the Criminal Cases Review Commission.

In this particular case, the Court was obliged to hear the appeal and obliged to quash the conviction, even though it was apparent and certain that the appellant had been properly convicted of serious offences. That is what new clause 28 seeks to deal with. Members of the senior judiciary brought the matter to the attention of the Government. It is clearly something that needs to be dealt with and new clause 28 is our attempt to do so.

The Government agree with the senior judiciary that this matter must be dealt with. The Criminal Cases Review Commission does not disagree with the view that this is an unsatisfactory state of affairs. Our preferred solution is to give the Court of Appeal the discretion to disregard developments in the law since the date of conviction, and that is the effect of new clause 28.

The hon. and learned Member for Harborough has added amendment (a) to new clause 28, and he has tabled other amendments which, with your permission Mr. Cook, we will deal with once he has had a chance to set out his stall.

New clause 30 applies those matters to Northern Ireland in accordance with the wishes of those who look after the criminal justice system in that jurisdiction. With those few remarks, I commend amendment No. 207 to the Committee.

Edward Garnier (Conservative, Harborough)

In resisting the amendments I do not think that I can be quite as brief as the Minister, because I shall also try to persuade the Committee of the good sense of the Opposition’s amendments. I regret holding hon. Members up if they have other things to do, but we are coming to quite an important aspect of the powers of the criminal justice system and of the way in which the Court of Appeal criminal division deals with matters before it.

I am very much reliant on advice that I have received from others on this subject. Although I am now in what I think is my 35th year at the Bar, I do not have great experience of the Court of Appeal criminal division. Actually, it might be an exaggeration to say that I am in my 35th year. I was called in 1976, so I am in my 32nd year. My practice has been predominantly in the civil jurisdiction dealing with media law, confidence, defamation and so on. However, I have a little understanding of what goes on in the Court of Appeal, and some understanding of what goes on in the criminal courts through having sat as a recorder for the past 10 years. Nevertheless, I make no secret of the fact that I shall be relying heavily on the works of Professor J. R. Spencer, who is attached to Cambridge university and who attends frequently at the Judicial Studies Board lectures and refresher courses that I too attend. I have not only read what he has to say, I have on many occasions in the past 10 years had the benefit of listening to him speak on Government proposals for amending the criminal law in one form or another. He has written quite extensively and thoroughly on the subject that is dealt with by this part of the Bill.

As we all know, in September 2006 the Government announced their intention to change the law so that, in future, the Court of Appeal would no longer be able to quash convictions on purely procedural grounds if it was sure that the defendant was factually guilty. Last summer, the Government issued what they were pleased to call a consultation paper. The paper was fairly brief, and made it quite clear that, although the Government were interested in hearing what people had to say about how to achieve the aims that are reflected in the new clause, they were not consulting on the aims themselves or on whether the law should be changed. The consultation was somewhat partial, therefore.

The paper said that the present system risks outcomes that are unacceptable to the law-abiding majority. As the Government were committed to rebalancing the criminal justice system in favour of the victim and the law-abiding majority, they said that the law had to be changed. The depth of research underlying the paper was clear from the Government’s repeated references to the work of a wholly non-existent body, called the 1985 royal commission—an imaginary amalgam, one presumes, of the 1981 Philips commission and the Runciman commission of 1993.

Among those who put forward views adverse to those of the Government were the senior judiciary, the council of circuit judges, the Criminal Cases Review Commission, the Law Society, the Criminal Bar Association, Justice and Liberty. I shall list the objections made by that quite powerful group of bodies, which I would have thought were worth listening to.

First, there was a failure to recognise that the criminal appeal process exists not only to ensure that the factually innocent are not punished but to uphold the rule of law. Thus, it was said, the function of criminal appeals is not just to see that, in a given case, the right result is reached, but to ensure that the law of the land in general and the rules of criminal procedure and evidence in particular are respected and properly applied. Because of that, it is inevitable that the Court of Appeal must sometimes quash convictions that are tainted by grave breaches of the law or serious failures to apply the rules, irrespective of the factual guilt or innocence of the accused. There are two good reasons for that: one theoretical and one practical.

The theoretical reason is that a criminal conviction is acceptable only if it carries moral authority and a decision reached in defiance of the basic rules that society prescribes for criminal investigations and trials does not. The practical reason is that, if convictions can be upheld where the authorities have flouted the basic rules, that will undermine the self-restraint that we expect the authorities to show in keeping to them. If the police know that if they break the rules the resulting conviction will be appeal-proof, as long as nobody finds out until afterwards, that would—to use the Government’s jargon—send a signal that breaking rules can pay.

The second objection from the bodies I have mentioned is that the proposal is unnecessary because it fails to understand the way in which the rules of criminal appeal currently operate. Behind the proposal is the notion that, as the law now stands, defendants who are clearly guilty regularly escape punishment because the Court of Appeal quashes their conviction on account of footling procedural irregularities. However, that is not so. For most procedural irregularities the Court of Appeal will uphold the conviction if it is convinced that the defendant is really guilty and would still have been convicted, even if the irregularity had not taken place.

There is plenty of case law making it clear that the Court of Appeal will quash the conviction of a defendant who is plainly guilty in respect of only the most serious procedural irregularities. In the comparatively rare cases where the Court of Appeal considers the procedural flaw too grave for the conviction of a visibly guilty person to be allowed to stand, it will usually order a retrial where, as is usually the case, a new trial can cure the problem. The current law is not in need of change. I do not say that out of complacency, but because an examination of the issues underlying the Government’s proposals shows that they do not stand up.

As a matter of principle, it is right that some purely procedural errors—as the Government calls them—should cause the conviction to be quashed, irrespective of the defendant’s factual guilt or innocence and, in some cases, it should not be possible for the defendant to be retried. Having said that, the present law is not free from difficulty, because neither statute nor case law, nor legal writers, have laid down any clear rules to identify cases that fall into either of those two categories. I accept that that uncertainty is unsettling and probably helps to foster the false impression about the operation of the current law that has led to the Government introducing a Bill to change it.

I want briefly to set my concerns in context and mention how the Court of Criminal Appeal has developed since the Criminal Appeal Act was passed in 1907, which was the first time that the Court of Appeal could review convictions and sentences based on this issue—or at all. Section 4(1) of that Act says:

“The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.”

That provision was modified to some extent under the Criminal Appeal Act 1968, in which the Court was permitted to quash convictions for failures of due process but which did not allow the Court of Appeal to order a retrial. That modification was a response to some of the difficult cases that the Court of Appeal had had to deal with over the previous 50 or 60 years. On the one hand, the Appeal Court would sometimes uphold convictions despite failures of due process that most people would regard as fundamental. An example of a case where nowadays we would think that the wrong result was arrived at occurred during the first world war. A Chinese man with virtually no command of English had no interpreter at the trial so was unable to follow the proceedings. In the judgment, the Court of Appeal equated the position of a defendant who was present but unable to understand the proceedings with that of a defendant who was physically absent. It stressed the great importance of providing interpreters for those who were unable to follow spoken English. However, despite that endorsement of a basic principle, the Court applied the proviso and affirmed the conviction for murder because, as it said, if the evidence had been translated to the appellant, the same verdict would inevitably have followed. As a result, on 1 January 1916 the poor man was hanged at Pentonville.

It is always said that another fundamental requirement of a trial is that the judge who is trying the case should be impartial and unbiased. I do not often speak ill of my profession, but this is an occasion to do so. There was a case in 1969 when the Court of Appeal criminal division refused to quash a conviction although the trial judge had demonstrated his bias by saying in a loud voice, “Oh, God” when defence counsel began his closing speech, and then by laying his bewigged head down on his arms and making groaning noises while counsel was trying to impress the jury. Surprisingly, the Court of Appeal upheld the poor defendant’s conviction.

At the other end of the spectrum, appeal courts sometimes quash convictions for minor procedural irregularities with the result that a defendant who is probably guilty walks free. In the case of Hales, the Court of Appeal quashed the defendant’s conviction for theft and the 15-month prison sentence consequent upon it because the sentence had been pronounced when he was absent from the court, although he had been present throughout the trial. In another case, the Court of Appeal quashed the defendant’s conviction for dangerous driving and the resulting prison sentence because the particulars of the offence as stated in the indictment were that he

“drove a motor car recklessly or at a speed or in a manner which was dangerous to the public”.

That offended the rule against duplicity, but most people would not have thought it appropriate in justice to quash the conviction.

The position became even more muddled when the House of Lords Judicial Committee started inventing a theory that certain procedural irregularities had the effect of making the initial trial a nullity. It was trying to find an inventive way to get through the problem that the current laws relating to the Court of Appeal criminal division as invented in 1907 presented, so it suggested that some procedural irregularities led to the initial trial being void, as though it had never occurred, and it ordered a retrial so that the retrial could cure the irregularity in the first trial.

Eventually, we got to a position in 1964 such that the Criminal Appeal Act was amended to give the Court power to order a retrial when it quashed a conviction because new evidence had come to light, and then in 1988 Parliament amended the Act again to give the Court of Appeal criminal division the power to order a retrial when quashing the conviction for whatever reason. The latest position for which figures are available is that in 2004 66 cases were ordered to be retried on the Court of Appeal quashing a conviction on account of procedural irregularity.

The Runciman report was produced in 1995, and there was a further change when Parliament amended the Act to state that the Court of Appeal

“shall allow an appeal against conviction if they think that the conviction is unsafe; and...shall dismiss such an appeal in any other case.”

It is thought that when drafting that the Home Office was trying to prevent people who were plainly guilty from getting away with it on procedural grounds. Lord Taylor, then the Lord Chief Justice, said in the House of Lords, “It’s business as usual, chaps.” That is how the Court of Appeal and the Judicial Committee interpreted that amendment to the law.

To achieve clarity, I shall consider which due process errors should automatically justify the quashing of a conviction. Professor Spencer lists a number of such errors, including, first, cases in which

“the court had no jurisdiction to try the offence”.

An obvious example is one in which the judge trying the case is not a judge at all. The second error applies to cases in which

“the court below fundamentally misapplied the substantive criminal law”.

In such cases, the defendant was convicted of an offence of which he was not guilty and was essentially put before the jury for an offence that did not exist. The third error applies in cases in which

“the rules of natural justice were broken”.

There are two rules of natural justice. I am sorry to resort to legal Latin, but the first is nemo judex in sua causa. That is to say, no matter how clear a person’s guilt, if the judge had a particular reason to be biased or appeared to demonstrate bias, one of the rules of natural justice has been breached.

The other rule is that people should not be convicted without having an opportunity to defend themselves and advance a case. That can be amusing in some cases, but rather sad in others. In 1988, a judge refused to allow a defendant—a male transvestite—to take part in the proceedings unless he wore men’s clothes. The defendant did not want to wear men’s clothes because he did not feel comfortable in them, and was convicted because he refused to appear in court. [Interruption.] It is funny in one sense, but on the other hand it is perfectly obvious that people should not be convicted in such conditions.

The fourth category that Professor Spencer highlights is

“disregard of other procedural rules of major importance that exist for the particular protection of the defendant”.

I will not go into a long explanation of those rules, but they are obvious and recognisable. Fifthly, he highlights the

“existence of some formal bar to prosecution”.

which applies, for example, if the bringing of the prosecution is time-barred. Finally, there could be:

“gross misconduct in the course of investigating the offence, or preparing for the trial”

I want the Committee to consider under what circumstances the Court of Appeal should be permitted to refuse to order a retrial where such abuses. Professor Spencer says that he can see no reason in principle for refusing to order a retrial in any of the cases in the first four categories. The only principle for refusing to order a retrial is what might be called the penalty shoot-out theory of criminal procedure: the notion that the prosecution is allowed only one shot at goal and if it misses, for whatever reason, it is unfair to the defendant to let the prosecution have another go.

If that notion of criminal justice has any validity at all, it might justify forbidding a retrial in cases where the prosecution is in some way to blame for what has happened. However, it could hardly justify the absence of a retrial in a case where the prosecution is blameless and the failure of due process was the result of a bungle by the court. In the light of the overriding objective of the new criminal procedure rules, it is questionable whether the penalty shoot-out theory is tenable even when the prosecution has blundered.

Professor Spencer suggests that a retrial should be impossible only in cases that conform to his fifth and sixth criteria, in which there is some formal bar to prosecution and gross misconduct in the course of investigating the offence or preparing for the trial. In those situations, the prosecution should not have taken place at all: if the lower court had done its job properly, it would have stopped the proceedings. If that is the root of the problem, it obviously cannot be cured by allowing the prosecution to continue. An example of the final category is the case of Mullen, which is the only one that the Government have been able to come up with. That decision seems to form the basis of their argument in favour of messing around even further with the powers of the Court of Appeal.

I am sorry not to have compressed Professor Spencer’s argument as fluently or as comprehensively as he might have wished. However, it is important that we pay particular attention to people who have spent their academic lives considering such issues: they have looked at case law and the way in which the Court of Appeal criminal division has developed over the past 100 years. For the Government to want to change that on the back of one case—the Mullen case—in which the defendant was unlawfully rendered, if that is the right expression, from Zimbabwe to this country to face trial, because the Government either could not be bothered or did not want to become engaged in an extradition hearing in Zimbabwe is pretty appalling.

Before concluding, I wish to deal with the point at issue in Government new clause 28. The Minister explained it, but in amendment (a), we are trying to make it clearer. We do not have the same fundamental objections to new clause 28 as we do to clause 26 as a whole, but it is not drafted as carefully as it could be. I suspect that Ministers have received the a copy of the letter dated 24 October that I have received from Professor Graham Zellick, chairman of the Criminal Cases Review Commission. He sets out in delightfully simple terms why he thinks that the current Government new clause is not quite right. He makes it clear that the commission

“does not oppose this amendment in principle,”—

nor do we—

“but we do regard its drafting as seriously defective. In our view, the clause should make explicit reference to the substantial injustice test which has featured over the years in case law, so that the clause would then read as follows”.

I have copied his proposed amendment. I adopt his reasons for the proposal and support them. He said:

“The present wording gives the Court no guidance whatever as to the circumstances in which a development in the common law may be disregarded and it does not follow that the statutory provision is to be applied in line with the Court’s long-established practice in respect of applications for leave to appeal out of time based on a change in the law.

The absence of the link to substantial injustice means that change of law could be disregarded in cases where in our view it should be taken into account and we believe that it is right for Parliament to give this guidance to the judges of the Criminal Division and thereby limit the scope of the discretion.

Many judges sit in the Criminal Division who are not particularly experienced in criminal law and may not be fully aware of the background to this amendment.

The inclusion of a reference to ‘substantial injustice’ should prompt the Court over time to elucidate and clarify its meaning which is essential if a provision of such importance is to be understood by all those affected by it or who have to deal with it.

The Criminal Cases Review Commission, in particular, needs to know the basis on which legal developments will be disregarded if it is to be able properly and sensibly to apply the ‘real possibility’ test in the Criminal Appeal Act.

The absence of a reference to substantial injustice and the enactment of the clause in its present open-ended form would preclude or seriously inhibit the House of Lords”—

Judicial Committee, I add—

“from ever being able to offer guidance as to the proper scope of the new clause.

It is true that the expression ‘substantial injustice’ even in this context suffers from some uncertainty, but that is a reason for including it in the statutory provision so that it can be adequately defined or shaped by the Court in the light of past experience and future cases. It is not a reason for a clause that is wholly destitute of guidance.”

Professor Zellick and the CCRC remain puzzled that the Government, despite being told about those arguments in advance of drafting their new clause, have not found them acceptable. There are thus two big issues. The first concerns new clause 28, and the secondly the approach to the powers of the Court of Appeal when dealing with appeals in criminal cases. I have relied, as I have made clear, on the learning of Professor Spencer, but any mistakes in recounting his arguments are mine, not his. If, in the unlikely event that Professor Spencer reads the Committee Hansard, he sees reference to his name and learning, he should not feel in the least bit embarrassed if he wishes to write to me and say that I have got it all wrong. However, I do not think that I have. Where we are going wrong is in introducing the provisions simply on the basis of one case and on an apparent appeal to populism to ensure that people do not leave court after a successful appeal even though they are, in fact, guilty. It is a bigger issue than that.

A court of criminal appeal has a public and a private purpose: the public purpose of ensuring that people are not convicted improperly, and that the authorities, whether they are the prosecutors, police or the court system, do not condone and repeat bad behaviour; and the private purpose of dealing with the individual appeal, which is of particular interest to the appellant. I urge the Government to pay attention to the great weight of authority underlying the criticism in the responses to the consultation paper. I doubt very much if anybody wrote to the Government to say, “What a good idea this is, we can’t wait for it to come into force.” All the criticism went in the other direction, but the Government ignored it. No doubt they had their reasons for doing so.

Amendment No. 100 may be up in the air, because the Government have amended, or hope to amend, the relevant part of the Bill. To some extent, but not as much as I should like, the Bill upholds the difference between the Court of Appeal and the court of first instance by requiring that the Court of Appeal should receive a certificate from the trial judge confirming that the evidence that he and the jury heard was sufficient to prove the prosecution case, and that he had admitted—and the jury had considered and been directed by him on the matter—the relevance of any evidence of procedural or other misconduct. The Court of Appeal must have evidence before then that the question of procedural irregularity was dealt with, and not simply kept from the court or brushed under the carpet.

Amendment Nos. 101 and 102 touch on clause 26 (5), which would insert new section 30B into the Criminal Appeal Act 1968 and states:

“If it appears to the Court of Appeal, in determining an appeal under this Part, that there has been serious misconduct by any person involved in the investigation or prosecution of the offence the Court may refer the matter to the Attorney General.””

We wish to delete the words,

“may refer the matter to the Attorney General”,

and replace them with

“may, as the Court think fit in the interests of justice in that case, either direct that there be a retrial or that the appellant be acquitted.”

That would reinforce the power of the Court of Appeal to order a retrial or to acquit, rather than simply shifting the matter over to the Attorney-General to deal with the misconduct in some other disciplinary way, but without affecting the defendant’s right to a retrial or to be acquitted.

Turning to amendment No. 102, if the words,

“may refer the matter to the Attorney General”,

are left in the Bill, we want to insert the words

“who must initiate or not initiate such criminal or civil proceedings (or both) as he thinks best suit the justice of the case (taking into account the impact on the victim of the offence or his family of his decision either to proceed or not) and which decision either to proceed or not will provide the most suitable redress to the subject of such misconduct, deter any such misconduct in the future and restore public confidence in the criminal justice system.”

I have taken a little while to set out my arguments and those that I have borrowed from others. Given that the Government are making a fundamental change—and not a very good one—to the criminal Court of Appeal, it is important that the arguments against that change, which they have so far ignored, should be set out extensively. I make no apology for doing so. If we are not successful in resisting the Government in Committee or on the Floor of the House, the other place will not feel in the least inhibited about doing the right thing on clause 26.

The Bill has been bolted together like some sort of Heath Robinson contraption. From time to time, the Government think of something else to write about and stick it into the Bill. On Second Reading, the Secretary of State revised his initial views about what clause 26 should do, and now, in Committee, the Government are bolting on a complete rewrite of clause 26. If that is how they want to proceed with making this legislation, Members considering the Bill at later stages should not have any inhibitions about undoing this bolt-on business and putting the law back where it ought to be.

David Heath (Liberal Democrat, Somerton and Frome)

I do not propose to take quite as long as the hon. and learned Member for Harborough to make the case against the clause. The proposal must have seemed like a good idea at the time to the Government, but they have been trying to row back from it ever since, because the arguments in favour of it do not stand up. They are now attempting in their amendments to make partially digestible that which is inedible.

The Lord Chancellor made it plain on Second Reading that the clause has few friends in his Department. He tried his best to suggest that there might be a reason why it is necessary, but he could not come up with a single concrete example of a case in which the discretion that is currently available to the Court of Appeal is not sufficient to deal with the supposed mischief that he described. Indeed, he went quite the other way and made plain his view of the famous Mullen case. I teased the Under-Secretary when she talked about Mullen and similar cases, because we still do not know what the similar cases are. The Lord Chancellor said that an egregious—I think that is the word he used—abuse of process had occurred, that the Court of Appeal had had to come to that decision, and that the right thing to do was to free someone on appeal. There is a big question, therefore, about the utility of clause 26.

Having said that, the Lord Chancellor did say that he would rewrite the clause and come back with more acceptable proposals. I do not want to suggest that he has not been faithful to at least part of that intention. Government amendment No. 207 is an improvement—as far as it goes—on the wording of the original clause 26. However, it still raises some serious questions about what the Government are trying to do. Why do they seek to fetter the discretion of the Court of Appeal and what will the consequences be?

The key operative concession, if we can put it that way, is to downgrade the requirement on the Court of Appeal so that it no longer needs to be

“satisfied that the appellant is guilty of the offence”.

The amendment refers instead to there being

“no reasonable doubt about the appellant’s guilt.”

I have to say that that still puts the Court of Appeal in a position whereby it is required to act as a court that is finding on fact, not just on the legal position and potential abuse of process. That is unsatisfactory.

New subsection (1B), which Government amendment No. 207 would insert, reads:

“Subsection (1A) does not require the Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the conviction to stand.”

Again, that asks the Court to make a judgment about whether it would seriously undermine the proper administration of justice, rather than simply to take a view on whether there had been an abuse of process that required it to find that the original verdict was unsafe, and should therefore be overturned. Both changes would leave the Court of Appeal in an unsatisfactory position.

David Burrowes (Conservative, Enfield, Southgate)

I certainly endorse the points that the hon. Gentleman makes, particularly on the position in which the Court would find itself when forming a view on the facts of the case. I am not sure whether the Government intend to amend the explanatory notes, but paragraph 228 states:

“It would be for the Court to form their own view as to guilt on the evidence available to them; where they were in any doubt the Court would be under no obligation to seek to resolve it by calling for further evidence.”

The fundamental constitutional concern is that, in essence, the Court would be encouraged to usurp the primary role of the jury in determining guilt.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is correct. That is precisely my point. I think that that proposal fundamentally changes the nature of the Court of Appeal. It is not a minor amendment to the Criminal Appeal Act 1968, nor is it just a minor “recalibration”—is that the word that the Lord Chancellor used?

Edward Garnier (Conservative, Harborough)

He usually says “tidying up”.

David Heath (Liberal Democrat, Somerton and Frome)

He does indeed. In this instance, however, I think he used the word “recalibration”. That is not what the measure does. It fundamentally changes the process of the courts and the role of the Court of Appeal. On those grounds alone, it should be resisted.

If the Lord Chancellor’s purpose was simply to underline the discretion already available to the Court, he could have done that without clause 26. I do not think that anything requires the Court of Appeal not to take a sensible view about the safety of a conviction when making its determination. No evidence has been adduced to suggest that that is that case. What we are talking about is not asking the Court to act differently, but creating yet another headline for the newspapers and people with less understanding of the legal process to give the impression that we are significantly shifting the way in which the courts will work, but in the process undermining the legal system as we know it. That is profoundly dangerous.

I tested the Under-Secretary of State for Justice on new clause 29, which was originally in this group; it is not one that was added, Mr. Cook, when you sensibly altered our proceedings. New clause 29 was always in this group. It would extend these provisions on the Court of Appeal to Northern Ireland. I wanted to test her on that because I have the benefit of the Northern Ireland Human Rights Commission’s briefing. The commission is not just another pressure group, which we can safely disregard if we do not like what it says. It is a statutory body that was set up under the Northern Ireland Act 1998 to review the adequacy and effectiveness of Northern Ireland law and practice relating to the protection of human rights. That is its sole purpose, so what does it have to say about the provisions? Its briefing is instructive, saying that

“Part 3 of the Bill does not extend to Northern Ireland and the Commission welcomes that, view of the concerns it expressed in October 2006.”

That is when the commission responded to a consultation by the Northern Ireland Office on the proposal before us. It continues:

“The Commission stressed at the time that any proposals for limiting the independence of the Court to quash convictions would impact fundamentally on the value given in the criminal justice system to considerations of procedural fairness.”

Maria Eagle (Labour, Liverpool, Garston)

The hon. Gentleman will be aware that the Northern Ireland Office sought to extend the provisions to Northern Ireland, and will have taken full account of its stakeholders’ opinions. That is not a job for me to do in the Ministry of Justice, so I can only assume that the Northern Ireland Office consulted all its stakeholders, including the commission, when coming to its views. The Ministry of Justice and I as the Minister proposing the new clause are simply seeking to do what the Northern Ireland Office has asked us to do.

David Heath (Liberal Democrat, Somerton and Frome)

Precisely so. That is precisely my point. Here we have the body charged with commentary on these matters—establishing the rights and wrongs of a case—being consulted by the Northern Ireland Office and returning with a damning indictment on the Government’s proposal. What is the reaction of the Northern Ireland Office? It commissions the Under-Secretary of State for Justice to come to this Committee to extend it anyway, because apparently it is not interested in what the Northern Ireland Human Rights Commission says.

Maria Eagle (Labour, Liverpool, Garston)

I do not think it is fair of the hon. Gentleman to say that the Northern Ireland Office takes no interest in what the Commission said. It has a range of stakeholders and takes a balanced view, as any Department would, having consulted on the right way forward. It has made a decision, and it is unfair of the hon. Gentleman to suggest that it asked for one view and then ignored it.

David Heath (Liberal Democrat, Somerton and Frome)

I do not think I said that it asked for one view and then ignored it. I said that it asked for the views of the body that I believe has some importance in the context of Northern Ireland, and chose not to accept its advice. I believe, therefore, that it is perfectly proper for me to quote what it said about the Government’s position in support of my position, because the commission is so strongly in support. Paragraph 6 of its submission states:

“Given the exception of Northern Ireland from the scope of clause 26, the Commission limits its comment on the matter to expressing its view that, in terms of the values underpinning the legal traditions in UK jurisdictions, any measure that tends to undermine the requirement for procedural fairness in the trial process may threaten the presumption of innocence, diminish confidence in the integrity of the courts, and increase the likelihood and severity of miscarriages of justice.”

That is a potent argument against the Government’s proposal.

I shall deal quickly with new clauses 28 and 30, which deal with the Northern Ireland extension, and amendment (a), tabled by the hon. and learned Member for Harborough. He has quoted a letter from the chairman of the Criminal Cases Review Commission. We have to use the wretched word “stakeholder” again. What stakeholder is more important in the particular case before us than the Criminal Cases Review Commission, which is the only body that can actually deal with these matters? The commission states that it understands and accepts what the Government are proposing, but that the proposal is drafted so badly that it needs revision. The hon. and learned Gentleman has put that down as amendment (a)—a revision which the chairman of the Criminal Cases Review Commission believes is essential to the proper working of his commission and the process.

How on earth can the Government claim to have taken a reasoned and proper view of the drafting of the amendment if they disregard the body that they created and that they require to administer the consequences of the legislation, when it says that it cannot work effectively without an amendment? Again, the chairman of the commission’s comment is pretty damning:

“The commission does not oppose this amendment in principle, but we do regard its drafting as seriously defective.”

In the terms of the chairman of the commission, “seriously defective” is about as strongly expressed as it is possible for it to be. Surely, the Government ought to say, “Hang on a minute, perhaps we have got this slightly wrong. We know what our intention is, but if the Criminal Cases Review Commission says that this is ‘seriously defective’, we ought to think again.” That would be the sensible approach for them to take, but we have not heard that recognition so far on the part of the Department.

In conclusion, I welcome the fact that the Government, in their amendments to clause 26, have moved from their initial position, but to my mind no justification has been established for the clause. I hope that I am correct in understanding the hon. and learned Gentleman to have indicated that he would seek to oppose, not amendment 207, but clause stand part, because it is the clause that is the problem, not the amendment. If he does so, I will certainly join him in opposing the clause, because we have not yet heard any justification for this fundamental change to the Court of Appeal and the legislation that prescribes the way in which it works. We know that every respondent to the Government has said that they are not convinced by the Government’s case. I do not believe that, in their heart of hearts, the Government want this measure either. It is left over from the previous Administration. It would be better, and I think that face would be preserved rather than lost in the process, if it were quietly dropped.

Harry Cohen (Labour, Leyton and Wanstead)

I want to take the opportunity to put on the record the view of Liberty on this part of the Bill. The organisation states that:

“The Government’s current proposals would prevent a conviction being quashed where there has been serious abuse of process even where, once quashed, the Court of Appeal would currently order a retrial.”

Liberty have made a good summary of the Government’s position,

“the Government’s policy position boils down to the following argument:

‘to quash a conviction where there is strong evidence of guilt, without ordering a retrial, will bring the criminal justice system into disrepute, rather than protect its integrity. According to that argument it is wrong to punish the public and deny justice to the victim in this way; if the system or those who operate it are at fault it is they and not the public which should be punished or required to learn lessons.’”

Liberty goes on to say that in its view, the position is not as black and white as that. It states:

“In reality, those cases in which this power to quash convictions is used involve very serious failings either before or at trial, or serious illegality on the part of the prosecution or police... Those who enforce the law should also obey the law and should not benefit from breaches of it. It would be contradictory for the state to take advantage of a breach of the law which it itself has committed.”

Liberty continues:

“the power for the Court to check serious illegality and abuse of process by the Executive”

is an important constitutional check on the Executive. It points out:

“We are concerned that, once the Court of Appeal’s power to quash a conviction outright where there has been serious malpractice on the part of state authorities is removed, the next step would be to take that power away from the courts of first instance. The power to stay proceedings as an abuse of process is an important constitutional safeguard which should not be restricted or removed.”

On that point, will the Minister say that there is no intention to take that power away from the court of first instance?

The Government’s explanatory notes state:

“It would be for the Court to form their own view as to guilt on the evidence available to them”.

Liberty argues:

“This would represent a fundamental change of the Court of Appeal’s role and the usurpation of the role of the jury in determining guilt.”

It states that Liberty

“would not support a statutory formulation which meant that any procedural error or illegality by the State led to the conviction being quashed.”

Maria Eagle (Labour, Liverpool, Garston)

I know that my hon. Friend is seeking to put on record what Liberty has said, but does he accept that it was referring to the clause as originally drafted, and that amendment No. 207 substantially answers those concerns?

Harry Cohen (Labour, Leyton and Wanstead)

I was going to make that point. I do understand that.

Liberty continued:

“Rather than legislation which takes an absolutist position on either side, we believe this to be an area where the only sensible way to proceed is to trust the Court of Appeal to make sensible decisions on a case by case basis.”

That is exactly the point of the amendment, which I welcome. It will give the Court of Appeal a little more flexibility.

As a layman I can understand the Government’s not wanting convictions to be quashed for procedural reasons where there is obvious guilt. Most of the public would take that view. I wish to say only that, where there have been serious procedural mistakes or deliberate malfeasance—rigged evidence or whatever—that must surely prompt the reasonable doubt that the Court of Appeal would have to assess in its interpretation of whether someone is obviously guilty. Again, I ask for an assurance that my view on that is correct.

The Minister mentioned mischief, and we can talk about people getting off when they are obviously guilty by using procedure. But there can be another mischief at play: if the prosecuting authorities and the police present rigged evidence or use procedure wrongly. I cannot see anything in the Bill that says there will be punishment for that. If somebody is out of line in court, they are done for contempt of court. Well, quite frankly, rigged evidence is contempt of court. In the balance of things, if the Government are to make the change in question, which I can go along with, notwithstanding what has been said and my being a layman, there should be a balance to include punitive action for those whose misdeeds have been a contempt of court.

Charles Walker (Conservative, Broxbourne)

I, too, am a layman, and not as distinguished as my colleagues on both sides of the Committee. I have no legal training, but I am concerned about clause 26.

For the public to have confidence in the legal judicial system, they need to be reassured that the players within the system are operating to the highest standards and levels of excellence, not taking short-cuts and making mistakes. It is incumbent on the police, the Crown Prosecution Service, barristers and the judiciary to operate to the very highest standards of professionalism. If, in the process of bringing a case to court and processing that case through the court, mistakes were made and the conviction may be unsound or is based on not the full facts, or if process errors have been made in reaching the conviction, it is not unreasonable to review that process and order a retrial.

I become concerned when we, as politicians, talk about obvious guilt—“Well, the defendant is obviously guilty, so there’s no need for a retrial.” There are many cases that go to court where many of us could argue that the defendant is obviously guilty. We used to do it in the middle ages, saying, “He’s obviously guilty, so cut his hands off, cut his head off because we don’t need to waste everyone’s time.” But we have advanced since then, and we have processes. Those processes must be followed and respected, and people will not respect or follow them if they know that their failings will not carry consequences. I would like to put my concerns on the record.

Maria Eagle (Labour, Liverpool, Garston)

On the point about the middle ages and assuming that people are guilty, the provisions and the changes that we are making to amendment No. 207 are only brought into play where it is absolutely clear to the Court of Appeal, on the evidence available to it, that there is no reasonable doubt about the guilt of the appellant. For example, he may have pleaded guilty at first instance, or his grounds for appeal may not challenge the issue of whether or not he is guilty, so this measure is not a resort to the lynch mob. I hope that the hon. Gentleman accepts that.

Charles Walker (Conservative, Broxbourne)

I appreciate that, but clearly if the proper process has not been followed but the gentleman is guilty, he will be found guilty again at a retrial. However, holding the retrial would demonstrate that if the proper processes are not followed by those involved in the first trial, there will be consequences. A retrial will have to be gone through at great expense to the public purse and great tediousness to all those involved, but in my view that is why we have a legal system. Even when it becomes difficult and annoying and tedious to respect that legal system, it needs to be cherished. I feel that in some small way the clause undermines excellence in the legal system and may actually promote short-cuts and a certain sloppiness that we could do without.

Maria Eagle (Labour, Liverpool, Garston)

We have had an extensive and wide-ranging debate, as one would expect on such an important matter. I shall do my best to deal not only with amendments Nos. 100 to 102 and amendment (a) to Government new clause 28, to which the hon. and learned Member for Harborough spoke, among his other presentations of his views, but with some of the points that have been raised during the debate by Members on both sides of the Committee.

By those who have opposed not only the clause as it was originally written but the amendments to the clause—those who think that the clause should not stand part and that we should leave the law as it is, which I think is more or less the position of the Opposition—the view has been expressed that the provisions have been plucked from the air as a quick press release by the Government in response to some sort of pressure, that they are an attempt to look tough. In fact, there has been an extensive period of consultation lasting a number of years.

Long before I became a Minister in the Department and long before the Ministry of Justice existed, consultations were going on. It is not something that has been plucked from the air as some sort of faux response to a concern that does not really exist. To pray in aid, I should like to quote from a couple of reports. The July 1993 report of the Royal Commission on Criminal Justice said that nine out of 11 members

“believe the Court of Appeal should not quash convictions on the grounds of pre-trial malpractice unless the court thinks that the conviction is or may be unsafe. In the view of the majority, even if they believed that quashing the convictions of criminals was an appropriate way of punishing police malpractice, it would be naïve to suppose that this would have any practical effect on police behaviour. In any case, it cannot in their view be morally right that a person who has been convicted on abundant other evidence and may be a danger to the public should walk free because of what may be a criminal offence by someone else. Such an offence should be separately prosecuted within the system.”

Lord Justice Auld, in a 2001 report on his review of the criminal courts in England and Wales, said:

“In my view, consideration should be given to amendment of the present statutory test to make clear whether and to what extent it should apply to convictions that would be regarded as safe in the ordinary sense of the word but follow want of due process before or during trial”.

The Government are responding to a long-standing concern among some practitioners that there is an issue. The measure is not something that has been plucked out of the air as the latest cause to try to show that the Government are being tough on crime and tough on the causes of crime. It is not merely that. There is an issue, which is acknowledged by some practitioners.

Charles Walker (Conservative, Broxbourne)

I could have some sympathy for the view that if someone makes a purely procedural error in prosecuting a case, there might be an argument for not going for a retrial. I am not convinced, but I would have some sympathy. But if someone involved in a case committed a criminal act as part of that case, but it still was not felt that there should be a retrial, I would be extremely worried. I cannot believe that the Minister is seriously arguing that point.

Maria Eagle (Labour, Liverpool, Garston)

I have not said anything about retrials yet, although I am about to.

Edward Garnier (Conservative, Harborough)

If we are to accept the logic of the hon. Lady’s argument in relation to the support that she finds for it from some of the members of the Runciman commission in 1993, presumably the next step that the Government wish to take is to prevent applications being made on the grounds of abusive process before trial. She cannot logically argue for one and still permit me to prevent the case from going on ab initio.

Maria Eagle (Labour, Liverpool, Garston)

I am merely praying in aid some of those comments to show the Committee that this is not a measure that has just been plucked out of the air by the Government as the latest way to demonstrate that we are tough on the causes of crime.

Edward Garnier (Conservative, Harborough)

Let us not worry about Tony Blair’s rhetoric. He has been airbrushed out of the Labour party’s consideration. Let us just consider the merits of the hon. Lady’s argument. They are that in certain circumstances the Court of Appeal should not concern itself with the procedural misconduct that has gone on; if the facts suggest guilt, the conviction should be upheld. If that is right, why then is she permitting—there is no proposal here to prevent it—the continuance of the procedure by which defendants’ lawyers can apply to the trial judge to prevent the case from continuing because of abuse of process?

Maria Eagle (Labour, Liverpool, Garston)

What we have before us relates to appeals. We do not have any proposals and I do not know of any proposals to make the sort of changes that the hon. and learned Gentleman suggests. I do not seek to do so. We are seeking to deal with a small issue of long-standing concern to practitioners as well as to politicians. The quashing of convictions, where people are plainly guilty, which are forced upon the Court of Appeal because of the current state of the law, whether or not it thinks it correct, gives rise to serious concerns in the few cases where that happens. They bring the criminal justice system generally into a great deal of public disrepute.

Edward Garnier (Conservative, Harborough)

If the Minister’s amendment is made, let us assume that the facts that would permit the Court of Appeal to uphold a conviction despite misconduct would be available to the trial judge and the defendant’s team before trial. On her case, the Court of Appeal must uphold the conviction, even though the cases of misconduct had occurred in the conduct of the prosecution, either beforehand or during the course of the trial. What is the logical difference in upholding the conviction, despite the prosecution’s misconduct, before the Court of Appeal, but not before the judge in the first instance? The concept is the same: the court will not permit misconduct to override the rule of law. Why should there be a difference?

Maria Eagle (Labour, Liverpool, Garston)

I am still not convinced that I totally understand the point that the hon. and learned Gentleman is making—

Mr. Garnier rose—

Maria Eagle (Labour, Liverpool, Garston)

If the hon. and learned Gentleman wants to try again, I will give him one more chance. It might just be that because it has been a long day, it is too late for me to understand his point, or it might be that he is just not making himself clear—I am not sure which.

Edward Garnier (Conservative, Harborough)

It might be a combination of both those things. There is a procedure within the criminal justice system that allows a defendant to apply to the court to stop the prosecution because there has been an abuse of process, some form of misconduct, some withholding of evidence that the Crown wishes to use, or some form of misconduct by the police. Armed with the evidence of that abuse of process and misconduct, the defendant applies to a judge and says, “Look at all this. I can’t possibly have a fair trial. Stop it.” The judge will say, “Yes, you have been mistreated. The procedure has been misapplied. The police have misconducted themselves and a host of other matters have been brought to my attention that makes the continuance of this criminal process wrong. I will stop it.” The Minister is only transferring those facts to the Court of Appeal after the event. A trial can be stopped before the event under the current law through an injunction. However, the Minister is saying, “I do not see a connection between the principles that will stop a trial before trial, and those that will uphold a conviction based on a case that has been abused.”

Maria Eagle (Labour, Liverpool, Garston)

No, I was saying that I did not understand the point that the hon. and learned Gentleman put to me. I hope that I now understand a little better than I did before. There is a distinction. In the first instance, there has not been a decision about guilt. The evidence has not been heard. The defence might make a submission about abuse of process, and it is then for the judge to decide whether the trial will go ahead. If the prosecution does not agree with the findings on which the trial is stopped, there is now a provision whereby it can appeal to get the trial restarted. With clause 26, we are dealing with an appeal after the event, when there has been a finding of guilt in one way or another, and with a small number of cases in which it is clear to the Court of Appeal on the evidence available that there is no doubt about guilt. I understand that both Opposition parties do not see the need for that. They have made that clear and it is a perfectly understandable and legitimate point of view. The Government, however, do not agree.

The hon. Member for Broxbourne asked why we could not just have retrials. Retrials might well be appropriate in some cases. In many cases, they may be the way to deal with issues that have arisen that make a conviction unsafe. However, that system does not always work. For example, it might be impossible to have a retrial because of the passage of time, the death of a witness or the availability of a witness. Some cases come to the Court of Appeal many years after the original conviction. Others take less time to come to court, but people can die or become unavailable as witnesses very suddenly. It is not always possible for a retrial to be the answer.

Even when a retrial is practical, there can be other concerns, such as the effects on victims or witnesses of having to go through the entire legal process again. That can sometimes be too much for them. Retrials do the job in some cases, but they are not the only way to ensure that matters are dealt with properly.

The hon. Member for Somerton and Frome suggested that the Government amendments to clause 26 would require the Court of Appeal to retry the case or to change fundamentally the role of the Court of Appeal. I do not accept that. The Court will only consider cases in which it is absolutely clear from the evidence available that there is no reasonable doubt about guilt—[Interruption.] We are talking about the new version of Government amendment No. 207, rather than the original one.

I think that that answers many points made by hon. Members. They have dealt with some of the issues on the basis of the clause’s original wording. They have not acknowledged that Government amendment No. 207 changes the effect of clause 26. It gives more discretion to the judiciary, which will deal with the matters concerned, particularly in respect of the procedural irregularity. My hon. Friend the Member for Leyton and Wanstead acknowledged that after I intervened while he was relating the views of Liberty to the original clause.

David Heath (Liberal Democrat, Somerton and Frome)

I do not entirely accept what the Minister says about Government amendment No. 207. Undoubtedly it changes the threshold and the test that the Court of Appeal must apply, but it still puts the Court in the position of determining the guilt or otherwise of the appellant. The original wording required that the Court of Appeal be satisfied that the appellant was guilty. Now the Court of Appeal must think that there is no reasonable doubt about the appellant’s guilt. That is not a change of kind; it is simply a change of threshold.

Maria Eagle (Labour, Liverpool, Garston)

Perhaps the hon. Gentleman has forgotten what I said in my original remarks, which now seem to have been made some time ago—[ Interruption. ] I am glad to hear it. The intention behind the change is to make it clear that the Court of Appeal is an appeal court and is not supposed to retry entire cases. I do not know whether it will assist Committee members if I make it clear that during the formulation of the Government’s amendments to clause 26, which are now found in amendment No. 207, we took the opportunity to clarify the senior judiciary’s views with them directly.

I hope that that deals with some of the issues mentioned by Committee members in respect of the points made by Professor Zellick, who wrote to all Committee members about the Criminal Cases Review Commission’s views. As I said, it is quite clear that the professor does not suggest that the clause is unnecessary but has concerns about the wording. We are now coming to amendment (a) to Government new clause 28, which was tabled by the hon. and learned Member for Harborough. That amendment would have put the wording suggested by Professor Zellick into the clause, thus requiring the Court of Appeal to be satisfied that to disregard a development in the law would not give rise to substantial injustice. That test has been applied by the Court of Appeal when deciding whether, exceptionally, it should not disregard such a development.

The Criminal Cases Review Commission supported the proposed addition of those words, but the Government are not persuaded that they are desirable or even appropriate, partly because the meaning of the phrase “substantial injustice” is insufficiently clear to the Court to give it effective guidance in exercising its discretion, or to the Criminal Cases Review Commission when assessing how the Court might do that. If the Court is required to satisfy itself that exercising its discretion would not create an injustice, one must wonder what it normally spends its time doing. The implication is that it spends its time creating injustice in other circumstances when it is not required to consider such a test. There is a great lack of clarity about the meaning of the phrase, which is why it has not been possible for us to accept the wording proposed by Professor Zellick.

Edward Garnier (Conservative, Harborough)

The Minister has the letter. If she goes to the penultimate paragraph on page 3, she will see that Professor Zellick says:

“We explained our thinking to the Government prior to the tabling of the amendment and we are disappointed that our reasoned arguments have not found favour.”

It is one thing for the Minister to suggest what she has outlined to members of the Committee in general, and to me in particular, because I tabled amendment (a), but she has had since June, or whenever she was made a Minister in the Department—

Maria Eagle (Labour, Liverpool, Garston)

July.

Edward Garnier (Conservative, Harborough)

The Minister has had since July to engage in a discussion with Professor Zellick about why that form of wording is unclear. If I may say so, it is no good at this stage of proceedings to complain that it is unclear. I will take that complaint as it is intended, but for goodness’ sake, the Minister has had four months to ask Professor Zellick to explain himself. This suggests that nothing has been done in that direction.

Maria Eagle (Labour, Liverpool, Garston)

I do not accept that nothing has been done in that direction, or that there has not been careful consideration of the wording suggested by Professor Zellick. Of course there has, but, as I said, we have also taken the opportunity to clarify the views of the senior judiciary with them directly. Government amendment No. 207 reflects the work that has gone on. One of our concerns about Professor Zellick’s formulation relates to his use of the phrase “substantial injustice”, which we do not think helps. The purpose of the change from the clause as originally published in the Bill to new clause 28 is to give the court wider discretion to decide when it is appropriate to take notice of a change in the law, according to the circumstances of an individual case. That is the purpose of what we have been doing.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Lady has been very patient with us, but she says that “substantial injustice” is a difficult thing for a court to construe. Does she think that “seriously undermine” is any easier?

Maria Eagle (Labour, Liverpool, Garston)

It is acknowledged by Professor Zellick himself that “substantial injustice” has no clear meaning.

David Heath (Liberal Democrat, Somerton and Frome)

Nor does “seriously undermine”.

Maria Eagle (Labour, Liverpool, Garston)

We have taken the view that new clause 28 is worded sufficiently well to deal with the points with which it is designed to deal. Of course we have taken into account the representations that we have received. Had we felt that Professor Zellick had come up with a better way of putting it, we would have had absolutely no reason not to adopt the proposal, but, unfortunately, we just do not believe that his formulation assists. That is a judgment for Ministers to make at the end of the day.

Mr. Burrowes rose—

The rest of the debate is in Hansard.