§ 3.37 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Brightman moved Amendment No. 154C:
Before Clause 134, insert the following new clause:
("Offence of selling confidential financial information
—(1) It is an offence to offer to sell information as to the financial affairs of a person which is not in the public domain.
(2) A person guilty of an offence under this section is liable—
§ The noble and learned Lord said: The above amendment is the sequel to a Starred Question tabled by the noble Baroness, Lady Nicol, earlier this year. For 1819 those not familiar with the problem, perhaps I may sketch in the background. There is an organisation with branches throughout the country which offers to sell confidential, financial information at a price. I have with me the price list for 1993–94. The agency offers to supply information about people's financial affairs at prices which range from £100 to £1,000.
§ The agency offers to supply information as to a person's current bank balance for £245 and one's average bank balance over the past six months will cost an inquirer £250. Details of one's overdraft facilities will be provided for £300, but a copy of one's last bank statement is expensive: the inquirer will have to pay the agency £1,000 for it. Moreover, information as to one's overseas tax havens and numbered accounts is, I suspect, very expensive because the price list simply says, "price on application".
An ex-directory telephone number can be found for £150, but a copy of all one's itemised telephone calls over the previous quarter, which of course can be very informative, would cost £750. The agency describes itself as,
the widely acknowledged market leader in the procurement of highly sensitive personal information".
§ It boasts,
"There is no security system that cannot be circumvented".
Ironically the price list ends with the words,
Absolute confidence and discretion observed".
My amendment is designed to stop this outrageous activity. The noble Baroness, Lady Nicol, in her Starred Question, asked whether the Government considered the activities of such agencies, offering to sell commercial and personal information of a confidential nature, were legal and in the public interest. In his reply the Minister said,
I know that a number of people have received the leaflet to which the noble Baroness refers. I agree with her: I thought that what it was proposing sounded pretty awful".
A little later he added,
We have to make it clear beyond doubt that a person who obtains unauthorised access by deception to personal data is guilty of an offence".—[Official Report, 24/3/94; cols. 742-3]
I wrote to the distinguished chairman of one of the big five banks to ascertain his reaction to this sale of confidential financial information. He replied to me in a letter dated 15th March:
There are clearly real difficulties in this area for all financial institutions … One of the real difficulties is that the activities do not appear to contravene the criminal law. We are advised that they are not contrary to the data protection legislation, and that the acquisition of such information is not to be regarded as theft at common law … We believe that there is a strong case for amending legislation in order to outlaw such conduct".
I wrote to the Director of Public Prosecutions, enclosing a copy of the leaflet. She replied in a letter dated 22nd March,
The mere publication and distribution of the leaflet does not, I think, amount to any offence in itself.
Possible offences would include contravention of certain provisions of the Data Protection Act 1984 and the Computer Misuse Act 1990. There may be some way in which the services offered, distasteful and alarming as they undoubtedly are, could be carried out without contravening the criminal law. One can only speculate about that".
The position is that the distribution of this price list and its offer to sell confidential financial information is not an offence. That is stated unequivocally by the
Director of Public Prosecutions. The attitude of the Government is equally unequivocal. I quote again the words of the Minister (at col. 743 of the Official Report):
We have to make it clear beyond doubt that a person who obtains unauthorised access by deception to personal data is guilty of an offence".
I am sure that every Member of the Committee wants this disgraceful activity stopped, and stopped now. That can be very easily done by adding a few lines to this Bill. The amendment which I have tabled merely states:
It is an offence to offer to sell information as to the financial affairs of a person which is not in the public domain".
§ The penalties are then set out
§ I wish to add a few words in explanation. I purposely kept the wording as simple as possible. First, my amendment does not cover, and is not intended to cover, all breaches of privacy. Secondly, the amendment is so worded that it would not touch reputable credit agencies who obtain their information from proper sources. Thirdly, I do not think it is possible for the Government to say, if they were so minded, that the wording is flawed. "Information not within the public domain" is an expression well known to the courts. I give an example. The identity of the bank where I keep my current account is not confidential. It is in the public domain. Every time I write a cheque I disclose where I bank. However, my bank statement is not in the public domain unless I choose to make it so.
§ The amendment is supported by the British Bankers Association, which represents over 300 member banks. The noble Lord, Lord Alexander of Weedon, regrets his absence but has authorised me to say that the amendment is wholly supported by him. It is supported by every noble Lord to whom I have spoken.
§ I do not know the attitude of the Government. They may say that they intend to introduce appropriate legislation at a later date, perhaps by amending the Data Protection Act or the Computer Misuse Act, or by a privacy Bill. But that, in my respectful submission, is simply not good enough. We do not want to stop this mischief in one or two year's time—we need to stop it now. This amendment in this Bill is our opportunity. We can put the amendment into the Bill and that will cure the greater part of the problem. I hope that a sufficient number of your Lordships will feel inclined to support this amendment so that if the Minister is not willing to accept it here and now he will at least say that he is prepared to take it back for consideration. I beg to move.
§ 3.45 p.m.
§ Baroness Nicol
I rise briefly to support the noble and learned Lord, Lord Brightman. I feel the most important point he made is that we need to deal urgently with this problem and this is our opportunity. It may be helpful to the Committee to know that since March I have spoken to a great many Members of this Chamber about this matter. Of the 40 or so to whom I have spoken, only one felt that the matter was not important. I hope the Minister will take that on board.
§ Lord Boardman
I strongly support this amend-ment. The Committee may wonder where this information comes from which is so readily sold. One of 1821 the problems is that computers today can, at the press of a button, disclose an awful lot of information about a person's accounts, his address, and other such matters. The computers are available to a great number of people. I am not suggesting that all those who have access to computers fraudulently use that information, or sell it for gain. There may be the odd black sheep who does so, but certainly in my experience the desire to keep this kind of information confidential extends right across the financial sector, certainly as regards all respectable banks.
The real danger lies in the duplicity that is used by those who try to seek this information. As the noble and learned Lord just said, it is not difficult to find out to which bank someone belongs. Nor is it difficult to find out someone's account number, because the number is printed on that person's cheques.
If someone rings up the branch and claims that he is Mr. X, gives a great deal of information and says, "I would be grateful if you would let me have particulars of my account", the recipient of the call is placed in a difficult position. Staff do not want to offend a good customer by saying, "I don't know who you are. You must come into the branch and disclose your identity". If the caller gives enough information concerning personal details, which are available from a chequebook, Who's Who and other sources, bank staff may well give information which they would not willingly give to anyone but the account holder.
Information can be given in all innocence by people who hold that information. It is therefore right that people who seek such information should be placed under financial penalties. They should not be rewarded. They should be penalised severely for the duplicity or corruption that they deploy in obtaining confidential information and using it for their personal gain. I strongly support the amendment.
§ Lord Campbell of Alloway
At the request of the noble and learned Lord, Lord Brightman, I should like briefly to express my support for the amendment and in particular for its immediate and urgent introduction into law. The British Bankers' Association says that it wishes to put an end to this unsavoury business and without the law on their side banks cannot enforce their own codes of practice. I merely wish to add those remarks in support of immediate and urgent action.
§ Baroness Young
I should like to support the amendment most strongly. First, I should declare an interest as a non-executive director of the National Westminster Bank.
I agree entirely with everything that the noble and learned Lord, Lord Brightman, said. He put the case very clearly. There is an urgent need to stop this disgraceful practice, which is of great concern to the whole of the financial services industry.
On looking again at the report of the debate on the Question of the noble Baroness, Lady Nicol, I detected a hint that my noble friend the Minister might think that this matter perhaps ought not to be dealt with in this Bill and could be put off until a later stage. If that is his view I hope very much that he will think again. A number of 1822 other issues besides bank accounts are involved, such as medical records and so on. Therefore, it is a much wider issue.
It is my experience in public life that: frequently the best can become the enemy of the good. We have an opportunity here and now to deal with a specific point. The amendment unquestionably has the support of all Members of the Committee. I agree with the noble Baroness, Lady Nicol. Everyone to whom I have spoken agrees that this ought to be included in the Bill. I hope very much that my noble friend will consider the matter urgently and if the amendment is not absolutely correct will review it and bring the matter back to us at Report stage.
§ Lord Tugendhat
I was not one of those to whom either of the noble Lords spoke, nor am I the chairman of the financial institution to which the noble and learned Lord, Lord Brightman, wrote. But as chairman of Abbey National I certainly have an interest to declare.
After listening to the noble and learned Lord, Lord Brightman, it seems to me that it would be very difficult to understand how the Government could reject the substance of the case. If they are not prepared to accept the amendment which the noble and learned Lord and the noble Baroness opposite propose, then it should be incumbent upon the Government to find an alternative form of words and introduce another amendment on Report.
Much of what has already been said in this brief debate sums up the nature of the problem very clearly. In essence the amendment seeks to resolve not one but two problems. It seeks to resolve the problem that arises from the sale of confidential information about individuals. Consequentially upon that, it also seeks to resolve the problem that those who sell such information, and who almost invariably obtain it by nefarious means of one sort or another, if not by suborning bank staff then by deception, are at present protected by the law. That is the problem to which the chairman to whom the noble and learned Lord wrote referred. It is extraordinary that the Government should permit a loophole of that sort to continue.
I must stress that the banks themselves and other financial institutions are under an obligation to maintain strong security systems and internal procedures to protect the confidentiality of their customers' data. That goes without saying. But surely the law should underpin and support those procedures rather than undermining them and making it easier rather than more difficult for people to carry on the practices to which the noble and learned Lord, Lord Brightman, referred.
As my noble friend Lady Young has just said, there is a problem not only in relation to financial information but also other forms of information: medical records, educational records, tax matters and other information of that sort. I can well understand that the Government might wish to table an amendment or amendments which gathered up those matters as well. But as the noble and learned Lord, Lord Brightman, said in introducing the amendment, we are dealing with an 1823 urgent issue, the urgency of which has been demonstrated by breaches of confidentiality that all of us have read about in the newspapers.
Therefore, while emphasising the responsibilities of the banking industry and its commitment to the greatest degree of confidentiality and to the most watertight forms of security system, I urge the Government to pay heed to what the noble and learned Lord, Lord Brightman, said and either to accept this amendment or to undertake to bring forward another amendment in the same sense at Report.
§ Lord Peston
I rise mainly to ask a question, wearing my trade and industry hat. I find it curious that what I regard as an industry matter is dealt with as a matter of criminal justice. I do not doubt for one moment that the mischief to which the noble and learned Lord, Lord Brightman, with my noble friend Lady Nicol, addresses himself and his amendment needs to be addressed, but I question whether it can be demonstrated more strongly than it was by the noble and learned Lord that an amendment of this type will not interfere with legitimate business.
In particular, when I first saw the amendment I thought that it would get in the way of perfectly legitimate credit rating businesses. I agree that there may be a technical definition of "public domain" in the law that I do not understand, but a great deal of the information which those bodies sell I would regard as private information. It is information relating to the creditworthiness of individuals, including failure to pay bills.
My concern is not related to the need to deal with the mischief. I was as horrified as anybody by the story which the noble Earl himself told us a few weeks ago. However, I should like some reassurance from the noble and learned Lord and the Government that there is not the slightest chance that this amendment, given how broadly it is drawn, could undermine an important part of the financial activities of the City.
§ Lord Hailsham of Saint Marylebone
I should like to add my humble words in support of what my noble and learned friend Lord Brightman said. In general I am not in favour of using this Bill as a vehicle for introducing a great many new criminal offences. However, I believe that this is an exceptional case and that my noble friend would be wise to treat it as such.
I merely put one question to my noble and learned friend about the amendment. That is that the amendment appears to make it an offence to offer to sell information but does not seem to make it an offence actually to sell the information. I dare say that that was intentional but I should like to know why.
§ Lord Brightman
I hope that the Committee will allow me to answer those questions now. To answer the last question first, because it is clearer in my mind, I do not think that it is possible —if I remember my law books correctly—to sell without one side being an offerer and the other side being an acceptor. Therefore it is quite sufficient to use the phrase "offer to sell". I 1824 have used that terminology because what I really want to do is to stop the circulation of this outrageous price list.
I turn now to the question about reputable credit agencies. As I indicated, they would not in any way be prejudiced because reputable credit agencies get their information from sources which form part of "the public domain", to use the expression that I have adopted. They obtain their information from court records, and so forth, which disclose to anyone who cares to read them the warrants which have been issued by way of execution, bankruptcies made, and so on. I do not believe that there is any possibility of a reputable credit agency being attacked. If I am wrong in that, perhaps with the greater skill which can be produced by parliamentary draftsmen, the matter can be amended at Report stage if the Minister will be good enough to consider it in the meantime.
§ 4 p.m.
§ Lord Elton
The Financial Services Act, passed by the House in 1986, was designed to protect the interests of those using financial services. As one who spent two and a half years seeking to implement and operate that Act, perhaps I may add my words of support to the pressure for immediate action. I hope that my noble friend will not be tempted to wait for an amendment to that or any other Act which has been suggested, or to sweep everything into a new Act, and that he will act swiftly. If the amendment proposed is insufficient, I hope that at Report stage he will come forward with a provision that is sufficient.
§ Lady Saltoun of Abernethy
When my noble and learned friend moved the amendment, I was horrified to hear him say that the firm is apparently offering to find out and sell people's ex-directory telephone numbers. The amendment does not cover that. Ex-directory telephone numbers are an important part of many people's security arrangements. I should like that matter to be considered also.
§ Lord Inchyra
I am the current Director General of the British Bankers Association, among whose members I am pleased to include the bank of which the noble Lord, Lord Tugendhat, is chairman. The British Bankers Association wholeheartedly supports the contention of the noble and learned Lord, Lord Brightman, that urgent action by the Government is required. It also supports the intention underlying the amendment that he proposes.
However, the association has some reservations about the language of the amendments. In the first place, it feels that the amendment is too narrowly focused on financial information and that it ought to embrace all forms of confidential information that are held about individuals in various places. It is also uneasy that the amendment does not make the obtaining of information by deception an offence. At present, under the Theft Act, it is an offence to obtain goods or services by deception. It is the belief of the British Bankers Association that it ought to be an offence, under this Act if possible, to obtain information by deception.
1825 In order to overcome those reservations about the wording of the amendment, the British Bankers Association has had drafted an amendment which aims to deal with the problem comprehensively. The proposal has been sent to the noble Earl, Lord Ferrers. I hope that this afternoon I shall hear the Government's preliminary thoughts on the adequacy of the suggested amendment and that he may be willing to bring forward that amendment, or a near relative of it, at Report stage.
When I saw the amendment on the Marshalled List, I knew that we would have an interesting debate. I did not anticipate that many would disagree with the noble and learned Lord in his amendment. As usual, the noble and learned Lord has made a devastating speech in an enormously persuasive fashion. When I read his amendment and heard his speech, I longed to say, "Yes, let us accept all this". But, of course, very often when one becomes motivated by enthusiasm one finds many reasons why the specific solution cannot work in that way.
Perhaps I may give the Committee the Government's view on the matter. I was grateful to the noble Lord, Lord Inchyra, for having written to me about the concerns of the British Bankers Association. The matter is of considerable moment. It concerns the private interests of people who find information about their affairs being made public—something which causes great anxiety to everyone. That anxiety has been expressed this afternoon. But I agree with my noble friend Lady Young that we have to be careful that, in aiming for the best, we do not find that it becomes the enemy of the good.
The noble and learned Lord gave some examples of the staggering claims made by some organisations that they can obtain and then offer for sale personal information of various kinds about other people. That is a pretty distasteful operation. In the view of many it is an infringement of the privacy of an individual. Having been on the receiving end of some of that, I am bound to say that I have a great deal of sympathy from that point of view. It is especially objectionable when personal information is sold for pecuniary advantage.
There is the difficulty that if we address the sale of information we may be tackling the problem from the wrong end of the stick and be undermining some perfectly legitimate forms of activity.
I believe that the noble and learned Lord, Lord Brightman, quoted my words to the effect that a person who obtains information of a confidential nature such as this must be guilty of an offence. The noble and learned Lord did not quote me; he shakes his head in dissent. In that case, I shall remove my objections to what he said; I had thought that that was what he said.
The focus of the law at present over these matters is upon protecting private information against improper disclosure. If one is protected from improper disclosure, the person will not have the ability to sell the information. We have the common law of confidentiality which protects against the disclosure of information which has passed between two parties in confidence in certain circumstances.
1826 There are also the provisions contained in the Computer Misuse Act 1990 which prohibit unauthorised access to computer systems—which is commonly known as "computer hacking". There is the: Data Protection Act 1984, which applies to all computerised personal information. As the Committee will be aware, the Data Protection Act subjects computerised personal data to a set of data protection principles which are set out in statute. It requires all users of such data to register with the Data Protection Registrar. They have to supply details, among other things, of the sort of data which they hold, the purposes; for which the data are held and the categories of recipients to whom they intend to disclose those data. It is an offence for the data user, or for any of his employees, knowingly to disclose data to any person who may be in a category which is not covered by the entry in the register. One then asks: how do inquiry agents and others get hold of personal information which is stored on a computer? It seems to us most likely to occur in one of two ways: first, with the knowing co-operation of an employee of the firm concerned; and, secondly, with the innocent co-operation of an employee of the firm concerned when that person is led to believe that the disclosure in question has been authorised and is above board.
In the first case—where someone on the data user's staff deliberately makes an authorised disclosure—it is pretty clear that an offence will have been committed under the Data Protection Act and that the person who incited its commission is probably guilty as well.
It is a different matter in the case of the unwitting disclosure—and this is where we think there may be a gap in the law, since the employee in those circumstances does not commit an offence. And because the employee commits no offence, it is our view that the third party—the outsider who got him to make the disclosure in the first place—has probably not committed an offence either. That is the perceived gap in the law which I told the House on 24th March that the Government wish to fill.
That is the approach which we think it is best to take. It deals with the point of disclosure rather than the particular use which is made thereafter of the information which should not have been disclosed in the first place. There are several advantages in approaching the problem this way round. One is that it would cover all types of information which are covered by the Data Protection Act—not just financial information. That would deal with many of the points which Members of the Committee are concerned about relating to medical records. Another is that it would apply to disclosures for any purpose, not just when the subsequent intention is to offer the information for sale.
The noble and learned Lord, Lord Brightman, said in a persuasive way that we could put it all right by adding a few lines to the Bill. The biggest trouble with the noble and learned Lord's amendment—and this was the trouble with which the noble Lord, Lord Peston, was concerned—is that it would outlaw activities which are perfectly legitimate. The noble and learned Lord said that credit reference agencies would not be covered and 1827 that it is not possible for them to be covered. That is what he said in his last speech. My view is that the credit reference agencies would be covered by the amendment.
Credit reference is a well-established and vital financial service. It depends upon credit reference agencies holding detailed financial information about a large proportion of the population on the basis of which decisions can be made by the financial institutions about the wisdom of their entering into further transactions with the individual concerned. For example, if a person wants to open an account with one of the major stores or take out a credit card, the firms concerned will naturally wish to check that the individual is likely to be a responsible person who will meet his bills. To do that they get in touch with one of the credit reference agencies who keep records of people's credit commitments and their previous financial history. It is in the customer's interests, as well as those of the firm concerned, that those checks should happen—and happen quickly. There are protections for the customer under both the Data Protection Act and the Consumer Credit Act. The point is that this is information, most of which is not in the public domain, to which the amendment refers. It is information which, perfectly legitimately, is offered for sale to other institutions by the credit reference agencies. My information is that they would be caught by the noble and learned Lord's amendment.
I suspect that there are other cases where a legitimate trade in information would be outlawed by the amendment. For instance, it would affect some forms of direct marketing which are not in themselves undesirable. The amendment might even make it an offence for a bank to charge a customer for sending him his own bank statement.
Those are some of the fundamental problems which the amendment produces. I do not believe that small adjustments to the drafting would necessarily solve them. The prime difficulty with the noble and learned Lord's amendment—attractive though it is—is that it makes it an offence to sell the information. What we wish to do is make it an offence and ensure that the person should not have the unauthorised information in the first place.
Lord Harris of Greenwich: That being so, what do the Government propose to do about it? The noble Earl has explained what he describes as deficiencies in the noble and learned Lord's amendment, but that being so and accepting, as he did, that there is widespread public anxiety about it and that there is a gap in the law, what precisely will now happen? Is the noble Earl prepared to indicate that at the Report stage of the Bill he will introduce an amendment in terms acceptable to the Government and to the House in order to deal with this mischief? We cannot go on, year after year, with this wholly objectionable behaviour carried out by a number of self-interested people.
I quite see that. However, the noble Lord, Lord Harris, will recall that the substance of the amendment has not appeared in the criminal justice Bill before. He will also recall that many noble Lords have 1828 complained about the number of new offences which the criminal justice Bill incorporates and the number of extra areas it covers. This is a new area which the noble and learned Lord seeks to cover and as the Bill becomes longer and longer, so more offences are created.
I accept that there is a problem. I am prepared to take the matter away and consider it between now and Report stage. I cannot give the noble Lord the guarantee that I will produce an amendment, but I shall certainly consider the points which have been made strongly and, if I may say so, quite rightly.
§ Lord Brightman
I am most grateful to all those who have spoken in favour of the amendment. I am glad to be able to say that I am grateful too to the Minister for stating that he will take the matter away and consider it. In those circumstances, I ask leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 4.15 p.m.
Lord Ackner moved Amendment No. 154CA:
Before Clause 134, insert the following new clause:
§ ("Criminal Injuries Compensation
. In section 171 of the Criminal Justice Act 1988, the following shall be substituted for subsection (2)—
(2) Sections 108 to 117 of, and Schedules 6 and 7 to this Act shall come into force six months after the date on which the Criminal Justice and Public Order Act 1994 receives Royal Assent.".").
§ The noble and learned Lord said: For almost the past 30 years, since August 1964, successive governments have acted fairly and justly towards victims of violent crime by providing them with compensation through a scheme operated by the Criminal Injuries Compensation Board. That compensation has been based essentially on what the victim would have received if he or she had successfully sued the criminal in the civil courts. It has come to be known as the common law basis for damages for personal injuries. It is that scheme which the amendment seeks to continue in existence.
§ When the scheme started life, there was, of course, no previous experience on which to draw in assessing how it would work out in practice. Accordingly, it was brought in on a non-statutory basis, the payments being ex gratia. The scheme operated smoothly for some 15 years until the Royal Commission on Civil Liability and Compensation for Personal Injury—the Pearson Commission—reported in 1979. It considered and commended the scheme but recommended that it should be put on a statutory basis. That was no doubt because permanent and substantial public expenditure was involved and therefore, as a matter of parliamentary propriety, it should have a proper statutory basis so that Parliament would be in a position to control it.
§ A few months later, the Home Secretary confirmed the Government's acceptance of the recommendation of the Pearson Commission; firstly, that the scheme should be put on a statutory basis, and, secondly, that compensation under the scheme should continue to be paid on the common law basis for damages.
§ Nothing happened for some four years until a debate was initiated by my noble friend Lord Allen of Abbeydale, who much regrets that he is unable to be present today. He was a member of the Pearson 1829 Commission and drew attention once more to the need to put the scheme on a statutory basis. At the end of the debate, the Government confirmed that it was and remained their intention to do precisely that.
§ Now comes the Criminal Justice Act 1988 referred to in my amendment. That implemented the Government's undertaking to make the scheme statutory. Detailed provisions concerning the scheme are to be found in Sections 108 to 177 and Schedules 6 and 7. Section 171 places a statutory obligation on the Home Secretary to bring the relevant sections into force. My amendment seeks to ensure that the will of Parliament, as recorded in that Act, is now carried into effect, thereby putting the scheme on a statutory basis and obliging the Home Secretary to do what he obviously does not wish to do, which is to obtain parliamentary approval for any alterations which he may thereafter desire to make to the scheme.
§ Members of the Committee may well ask: what happened between 1988 and today? First, in 1989, because of the unprecedented rise in applications and the very sizeable backlog of cases, with consequent delays to all claims, it was decided not to make the scheme statutory at that date—and I emphasise those words—because it would disrupt the work and create further arrears. It was therefore agreed for the immediate present to delay the making of the scheme statutory but to streamline it in certain respects.
Now comes the rub. On 23rd November 1992 the Secretary of State, in a Written Answer to a parliamentary Question, gave notice that the Government intended to introduce a new tariff-based scheme to compensate the victims of violent crime. He said that the scheme offered,
the best prospect of providing quicker payments to claimants through a means that is fair, straightforward and understandable". —[Official Report, Commons, 23/11/92; Col. 458.]
In December 1993 the Government presented, without any consultation with the Criminal Injuries Compensation Board, a White Paper (Cm. 2434) setting out their plans in more detail. The opening paragraphs stated that,
the aim would be to provide a better service to the victims".
§ In my respectful submission, those protestations were sheer hypocrisy. We now know that the real aim and purpose of the non-statutory ex gratia tariff scheme proposed in the White Paper is to cut the future cost of the current scheme by, it is said, about half. But that reason has never been part of the consultation process and the validity of the Government's projected figures has, as a result, never been properly investigated or tested. But if money is to be saved, the means to be employed by the imposition of the Government's proposed tariff are grossly unfair, since those who suffer the more serious injuries and the more substantial losses —that is, the most vulnerable—will receive but a fraction of the compensation which is now provided.
Paragraph 38 of the White Paper is a stark statement of the Government's intention to disregard the will of Parliament. Some may think that it bears the hallmark of elective dictatorship. It reads as follows:
Provision was made in the Criminal Justice Act 1988 for the scheme to be placed on a statutory footing … With the impending demise of the current scheme"—
I interpolate: merely by reason of the imposition of the tariff scheme—
the provisions in the 1988 Act will not now be implemented. They will accordingly be repealed when a suitable legislative opportunity occurs".
§ In the debate on the Unstarred Question which I asked on this very subject, which took place on 2nd March, the noble Lord, Lord Ewing of Kirkford, drew attention to the fact that on the previous Monday the Government had tabled some 17 new clauses to this very Bill, which was then being debated in another place, and he suggested that they should table one further new clause since here was "a suitable legislative opportunity" within the meaning of paragraph 38 of the White Paper that I have just quoted. The Government decided that they would not give Parliament an opportunity to debate their proposals. That was not altogether surprising since the Government had so little confidence in the merits of the proposal fundamentally to change the basis of compensation that, as I have previously said, they did not even bother to consult the chairman or the members of the Criminal Injuries Compensation Board. Indeed, not a single organisation that supports victims has come out in favour of the Government's tariff scheme.
§ I shall now seek to justify my assertion that the proposed scheme is grossly unfair. Under the common law damages system, each application is individually considered so as to compensate the individual victim for the loss and injury that he has actually sustained. There is a conventional sum for pain, suffering and loss of amenities consequent upon, for instance, the loss of sight of an eye, the loss of a limb, etc. In serious injuries by far the major part of the total award reflects the loss of income, loss of pension, medical treatment and often the very large expenses that are involved in making the home in which the injured person lives capable of being used effectively by him.
§ The tariff system that is proposed by the Government does not take into account the vastly differing effects of similar injuries on different persons. No regard is to be had to such fundamental matters as the age, sex, occupation or way of life of the victim, all of which are reflected enormously in the effect which an injury may have on an individual. For instance, severe facial scarring of a girl of 15 is to be compensated with the same figure as that for an old woman of 90. No account is taken of loss of past or future earnings, of past or future medical expenses, or of structural or other alterations to the home. A very recent example, which occurred just before the debate on the Unstarred Question, involved a man in his mid-forties who was paralysed from the neck downwards. He received an award which involved £72,000 for loss of earnings (that is, £6,000 calculated by a 12-year purchase); a sum for future medical and care costs and support of £726,000 over a 15-year period; and for alterations to his house, special care, special transport, etc., £255,000. None of those figures would he get under the proposed scheme.
§ Perhaps I may take the example of an airline pilot who loses the sight of one eye and as a result ends his flying career. He will receive the same figure as an elderly pensioner with a life expectation of a few 1831 months. The figures in the tariff are based, it is true, on an analysis of the Criminal Injuries Compensation Board's awards and are generally comparable with the pain and suffering element of general damages. It is true that because of the averaging process employed by the Government each award contains a degree of loss of earnings. But that simply means that those who have had no loss of earnings will be compensated slightly more than they are at present, but at the expense of those individuals who have lost earnings.
§ Prior to the debate last March I gave the Government a lengthy list of recently reported cases illustrating how those who had suffered most would, if the tariff scheme had been in operation, have had their compensation savagely cut. Briefly, I shall cite a few examples. A paraplegic had a total award of £689,000, loss of future and past earnings being £100,000 and future care over £280,000. He would have received nothing for those two items, and his total under the new scheme would be £175,000. In a brain injury case where the victim required continuous care day and night, the total award was over £500,000, of which future care accounted for £234,000. Under the new scheme he would receive only £40,000. Those were two cases of injuries of the greatest severity. But there are those with less severe injuries where the earning capacity is seriously affected. For example, a psychiatric nurse whose arm was badly injured received a total of £126,000, of which only £17,720 was attributable to general damages for pain, suffering and loss of amenity. Under the new scheme she would be awarded £5,000. There was a case of a wrist injury which did not unite properly, leaving the applicant with a continuing disability in her dominant right hand. She received a total of £55,000. Under the tariff scheme she would receive only £3,000. There was a case of a back injury to a male police officer aged 34. He received for future loss of earnings over £61,000 which, together with other items of special damage, amounted to £121,000. Under the tariff scheme he would receive £7,500.
§ The other quite distinct category which would suffer most seriously by the application of the tariff system would be the families of victims of murder and manslaughter. Under the provisions of the Fatal Accident Acts dependency awards to a wife or dependent children are based largely on an assessment of the amount of financial support provided by the deceased and for how long it would have lasted. Future loss of earnings feature prominently in such calculations.
§ Let me give one example of a case decided in June 1993 which involved a female aged 38 at the time of the hearing who witnessed her husband die following a stabbing at the front door of their home. She was married with two children aged six and four. She suffered the deepest distress as a result of that traumatic experience. She received general damages of £17,500 but in addition nearly £120,000 for loss of dependency, making a total award of over £137,000. Under the new scheme she would receive the stock figure of £10,000 by reason of the death of her husband and £7,500 for her condition, making a total of £17,500, plus funeral 1832 expenses. That case illustrates that the innocent families of manslaughter and murder victims whose financial security was previously provided for by dependency awards will receive nothing for the future.
§ The issue as to whether the Secretary of State has acted unlawfully and therefore ultra vires in deciding to implement the tariff scheme came before the Divisional Court last month on an application for judicial review. The application failed and an appeal to the Court of Appeal is now pending. The Divisional Court was of the view that, unless an Act of Parliament in terms specified when an Act should come into force or specifically imposed an obligation on a Minister to bring an Act into force by a certain date, the Minister had in law a discretion not only as to when but also as to whether a particular Act of Parliament should take effect at all. The court effectively held that a Minister of the Crown has power to ignore the will of Parliament expressed in legislation unless Parliament specifically imposes an obligation on the Minister to bring the Act into force.
§ I find that surprising, as no doubt do those who have advised that the present appeal should go forward. However, we are not concerned with the technical legality of the Minister's action. We are concerned with whether we should condone a serious affront by the Government to parliamentary democracy. We are concerned with whether we should allow a Minister, without first seeking parliamentary approval, to frustrate the will of Parliament by refusing to carry into effect Parliament's clearly expressed intention to put the current scheme on a statutory basis. We are concerned further with whether he should be allowed to compound that refusal by replacing the current scheme with a non-statutory ex gratia tariff that ignores a fundamental tenet of justice and fairness which has consistently been applied by our courts throughout this century; namely, that compensation must be matched to individual circumstances.
§ I respectfully submit that the answer to those concerns is to be found in the amendment. I beg to move.
§ 4.30 p.m.
§ Lord Carlisle of Bucklow
In rising to address the Committee I must declare an interest as chairman of the Criminal Injuries Compensation Board. I have held that office for the past four years.
I speak in support of the amendment moved by the noble and learned Lord, Lord Ackner. I support it not so much because I believe that at this moment it is essential that the existing non-statutory scheme should be made statutory; nor that the scheme as proposed to Parliament in 1988 may not be capable of further improvement. I support it in particular because I believe that this is the only way to persuade the Home Office to think again before implementing its new scheme for compensating victims of crime which it proposes to implement backdated from 1st April this year.
As the noble and learned Lord said, the new scheme fundamentally changes the way in which victims of violent crimes are compensated. It abolishes the Criminal Injuries Compensation Board—which is a wholly independent body, at the moment responsible for 1833 assessing the amount of compensation to be paid in individual cases according to the principle of common law damages—and replaces it with a scheme to be run administratively, which is to compensate individuals on a total tariff basis. As we have heard, it takes no account whatever of the different effect of similar injuries on different people; nor does it take any proper account of the loss of earnings or loss of future earning capacity. In our debate of 2nd March, I had the opportunity to express the unanimous view of the present membership of the Criminal Injuries Compensation Board. The board considers that the Government's proposal is fundamentally flawed in that it is both unfair to individual complainants and in certain aspects will be found to be unworkable in practice. Perhaps I may go further. I believe that the proposed new scheme is far less fair than the present one. It was brought in without any form of consultation and I believe that the method of introduction can fairly be described as an abuse of Parliament. The scheme is contrary to our international obligations, and the grounds advanced to justify the change will bear little scrutiny. The now accepted principal ground of saving money—with which I do not in any way disagree-—proceeds on a false basis and is supported by statistics which, to say the least, are wholly misleading and by assumptions about future expenditure which I believe to be unjustified.
I accept what has often been said; namely, that in this country since 1964 we have had the most generous scheme in the world for the compensation of victims of violence. I accept also that the scheme introduced at that time is not necessarily the right framework for a wholly different situation 30 years later. I go further and say to the noble Earl that I accept that much has changed since 1988 when the present Government commended the present scheme to Parliament for its approval. The changes may justify looking again at aspects of that scheme. But that cannot possibly justify changing the fundamental principles on which compensation has been based without consultation and without recourse to Parliament.
What is fundamentally wrong about a wholly tariff-bound system, as the noble and learned Lord, Lord Ackner, said when he dealt with this point at length, is that it takes no account of the widely different effects of injuries on different people. As he said, none of the most obvious and fundamental aspects, such as age, sex, occupation and way of life, are taken into account in a tariff system.
I shall not attempt to repeat the speech I made in this Chamber on 2nd March. But perhaps I may add one more example to those already given by the noble and learned Lord. It is quite absurd to suggest that a seriously fractured ankle is no more damaging to a young and skilled building labourer, who may be many months off work and whose future ability as a steeplejack, say, may be gone for ever, than it would be to a retired man in his 70s; nor for a girl model to be scarred on the face compared to a similar scar on a man of middle age.
While the tariff figures arrived at are generally comparable with those currently being awarded for pain and suffering, there is no proper attempt made to 1834 compensate for loss of wages or earning capacity. That means that all the savings it is aimed to achieve will be at the expense of those who have the worst injuries—in many instances, the most deserving of cases. As regards its being unworkable, I can only repeat that in cases such as sexual abuse, post-traumatic stress disorder or scarring, the effects vary so enormously in different people that to use any form of tariff is meaningless.
I turn to my other criticism; that it is being brought in without any attempt at consultation. I find that extraordinary. The board which has been responsible for running the scheme for 30 years was not consulted in any way before the decision of principle to change the basis of compensation was taken. I was asked to go and see the then Home Secretary and was informed that he would be announcing his decision to Parliament the following day. I returned and immediately wrote a letter to Mr. Clarke. I said,I feel, therefore, that I must express in writing to you my concern at the effect [of] what is intended and in particular to express my surprise and very great concern that the Home Office should decide to alter the very basis of the Scheme without any prior consultation with the Board as to the practicality of what is proposed, and with apparently little serious thought having been given to its consequences".It is not only the board that has not been consulted. As far as I know, no other body has been consulted. It is clear that consultation was intended. When the Home Secretary made his Statement in November 1992 he said that it was intended that the White Paper should be produced in early 1993. In a debate in the other place in March 1993, Mr. Michael Jack, the then Minister of State, said,Of course, there will be an opportunity for the House to consider our proposals when the White Paper is published". — [OfficialReport, Commons, 18/3/93; col. 508.]In the end the White Paper was not published until 13th December last year on the eve of the adjournment of Parliament with no possibility of debate or consideration. In February the details were published.
Surely, on a matter which should be as non-political and non-contentious as compensation for victims of crime, that is not the proper way for the Home Office and Government to proceed. I said that it was contrary to our international obligations. As I am sure Members of the Committee are aware, we are a signatory—in fact I believe the author—of the European Convention on the Compensation of Victims of Violent Crimes. We signed that convention in February 1990. It states,Compensation shall cover, according to the case under consideration, at least the following items: loss of earnings, medical and hospitalisation expenses and funeral expenses, and as regard dependants, loss of maintenance".Those are the very words which, as the noble and learned Lord, Lord Ackner, pointed out, the present tariff scheme totally ignores, and the White Paper accepts that it does so.
The noble and learned Lord mentioned the lack of assistance for dependants. In the White Paper, in paragraph 25, justification is given for having a single award of £10,000. It is said that only 25 out of 250 awards were in excess of that sum and therefore most claimants will be better off. Tell that to the dependants of the young constable with three young children who was killed on duty endeavouring to protect other people!
1835 Is it an abuse of Parliament? I find it extraordinary that a government who take a Bill through Parliament to put into legislative form a board which shall be responsible for determining compensation payments should then not only not implement it—I accept that they have the right to do that —but actually introduce a scheme whose organisation and basic principle of compromise is totally in conflict with what they commended to Parliament, and should do so by the use of executive power without regard for parliamentary approval. What is Parliament's purpose if one can commend one action to Parliament and then decide to do something totally different without going back to Parliament for approval?
I apologise for perhaps speaking too long, but I want to turn to the justification put forward by the Government for the scheme. I said that it bore little scrutiny. Originally, it was put to me in the letter I received from the Home Secretary in terms,that the Criminal Injuries Compensation Scheme is, in its present form, intrinsically incapable of delivering the sort of service which victims now expect—that is, a service which produces awards quickly and in a way which can be seen to be fair, straightforward and understandable".I do not accept that. Any scrutiny of that view shows that while clearly there will be some saving in time, it will be nowhere near as great or significant as the Government suggest.
Above all, I want to turn finally to what is accepted as the real reason for the proposal; that is, that the cost of compensation has become unsustainable. The moment the Government decided to make the medium rather than the average award the basis of the tariff, then any suggestion that the scheme was even in its introduction to be cost neutral was dropped. The compensation will be reduced by some 20 per cent. That will mean a saving of some £30 million—a not insignificant sum. All I say is that it should not be done at the cost of the worst injured rather than by other means.
I hope that my noble friend will not rely on the same statistics the Home Secretary chose to use in the House of Commons in order to justify the phrase he used in a recent letter; namely, that the costs of the scheme were "spiralling out of control". That just is not so. It is misleading. To compare, as the Home Secretary did, the number of applications made in any year with the amount of money spent on compensation in the same year, to do it for three different years, and then show that the increase in the cost was vastly greater than the increase in the applications is a totally bogus exercise. The amount of compensation in any year has no relationship whatever to the number of applications received during that year. We are not comparing like with like. The amount of compensation depends not on the amount of applications but on the number of cases resolved during that year. Even more accurately, it may mean the number of awards made. Further, not to take any account in the examples given of the drop in the value of money over a 30-year span is ridiculous. And if we take that ridiculous premise we may end up with a ridiculous answer.
1836 The Home Secretary said that since 1987–88 there had been only a 50 per cent. increase in the number of applications but a threefold increase in compensation. But if, as I say, we look at the number of resolutions, in fact they have more than doubled during that period. If we take account of the effects of inflation the result is dramatically different. Taking it as being strictly accurate and only awards made, and relying on the papers in the Home Office's White Paper at Annex A, the average award at 1993–94 prices in March 1988 was £3,486. In March of this year I can tell the Committee and the Minister that it was £3,778. It is an increase, but there is no suggestion that the cost is spiralling out of control.
Even more stark is the other figure which the Home Secretary gave. He stated that the increase was hugely out of proportion and that since the scheme came into effect in 1965–66 applications had risen by 27 per cent. and compensation had risen by 378 per cent. If instead of comparing applications we compare the number of cases, and if we take into account the tenfold reduction in the value of money in that period, we find that on their calculation the average award in 1965 was £3,458 and it is £3,778 today, which is something less than a 10 per cent. increase in a period of 29 years.
Equally, what is clear is that the amount of money has gone up. The reason for that is that the number of people claiming has increased and more people are being compensated, and the reason for that is the increase in the amount of violent crime, combined with the very commendable efforts made by the Government to encourage victims to apply. Do noble Lords remember the Victim's Charter and the encouragement to the police to tell people to apply for compensation? I agree with my noble and learned friend that it is somewhat hypocritical to claim that we are putting the victims first when we encourage applications to the board specifically for compensation and then say that the bill has to be cut because we cannot afford it.
As far as the projected savings are concerned, I do not accept the figures. I do not understand, because we have not been told, how the figures for the projection of £500 million by the end of the century have been arrived at. I believe that the assumptions are wholly spurious. I am told that they assume a 9 per cent. increase in applications every year between now and the turn of the century. I should like to say to the Minister that I do not believe that that will be the situation. Over the past two years, if one takes out the jump in March because of the new incoming scheme, the figures have been the same, and for April and May of the past three years the figures have run at a consistent number. In addition, they have added an increase of 10 per cent. per annum in cash terms onto the awards. That is not something that I accept.
One can find a very simple answer to the projections. If we are right in the assumptions that have been made, if the figure in the book is increased by 19.5 per cent., for the last year we should have spent £180 million; but we have spent £165 million. Therefore, in the first year of that progressive calculation they are £16 million out when compared with what occurred.
1837 I apologise to noble Lords for having spoken at such length. If the position of the Government is that we cannot afford to pay as much compensation as we have been doing, let them say so and let us get round the table to work out a system which is fairer than that which is proposed. However, to propose savings, all of which will fall upon those most injured or those most deserving, in my view and in that of the board is wrong. It is a proposal that I hope the Government will not persist in.
§ Lord Lester of Herne Hill
May I briefly explain why I am pleased to support the amendment, which also stands in my name on the Order Paper. We have heard two remarkable speeches with which I so completely agree that I do not need to detain the Committee for more than a few moments.
I suggest that the matter before the Committee is not one of law, which is for the courts and will have to be determined by the Court of Appeal, and, if necessary, by the Law Lords, but a matter of serious constitutional propriety. Parliament has spoken in 1988, implementing not only an international convention which we ratified two years later but also the report of Lord Pearson's Royal Commission. Parliament's intention has been treated by the Government, I am sorry to say, as if it were written in water. That is an abuse of Parliament, if not an abuse of power. It is surely important that today Parliament should exercise its law-making powers by supporting the amendment and, therefore, ensuring that its intention is given effect to within six months of the coming into force of the Bill before the Committee.
§ Lord Irvine of Lairg
I spoke on this issue in March, when the matter was last before your Lordships. We are grateful to the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Lester, for bringing it before the House once more on an occasion when we have an opportunity to vote. I believe that the amendment will and should carry support across your Lordships' Chamber.
I do not think that I can sufficiently remind the Government of the sharp contrast between what they now propose for criminal injuries compensation and the calls at last year's Tory Party Conference for more to be done for the victims of violent crime.
On the previous occasion the noble and learned Lord, Lord Fraser of Carmyllie, stated,we estimate that the majority of applicants will receive as much or more under the new scheme as they would have done under the existing one. Current estimates suggest that about 54 per cent. of applicants will be in that position".—[Official Report, 2/3/94; col. 1116.]This is a Government who are presiding over a rising tide of violent crime at the same time as they are drastically reducing compensation for those who suffer most from violent crime.
As the noble and learned Lord stated, the argumentation of the White Paper is humbug and, I would add, not even high quality humbug. The objective of the Government is stated to be to provide a better service to victims; so the 46 per cent. who will get less are told that there will be a superior service in giving them less. We are then told that everyone who sustains 1838 a similar injury will be treated in a similar fashion. What that suggests, although it is not true, is that like cases will be treated alike: emphatically, they will not be.
The financial consequences of personal injury are infinitely variable. The true position is the opposite of the suggestion made in the White Paper. The new scheme is incapable of doing justice because it will treat fundamentally different cases as though they were the same.
The point about the existing scheme—and I say existing because, pending the outcome of the appeal to the Court of Appeal and perhaps beyond, the new scheme is not being implemented—is that the compensation paid distinguishes among victims according to the impact of the injuries on their individual earning capacities. Is the noble Lord unwilling or unable to acknowledge that, as stated by the noble Lord, Lord Carlisle, his Government, on pure cost-cutting grounds, will be doing drastically less for those who have lost their livelihoods from violent crime?
I should like to ask the noble Lord what is the principled reason for distinguishing between compensation for personal injuries caused by the negligence of another at a workplace or in the street and compensation for criminal injuries. In the ordinary personal injury case compensation is not confined to an injury-related tariff: common law damages, which provide compensation for loss of past and future earnings, apply. If it is right that that should be the compensation for personal injuries caused by negligence, why should victims of violent crime, who suffer the greatest loss, not continue to receive compensation on the same common law basis?
On the previous occasion the noble and learned Lord, Lord Fraser of Carmyllie, stated that fortunately the very serious incapacitating or life-changing injuries are rare indeed. If that is the case, can the noble and learned Lord not show some flexibility of the kind that was suggested by the noble Lord, Lord Carlisle? Can he not agree that the new scheme should at least continue to provide compensation on a common law basis in that small number of tragic cases? A concession along those lines might greatly affect the decision of many noble Lords if that issue is to be pressed to a vote.
§ Lord Harris of Greenwich
The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Carlisle of Bucklow, have, in my view, made devastating speeches, and we look forward to hearing some form of response from the noble Earl.
I agree with the noble and learned Lord that in parliamentary terms what the Government have done is improper. The noble Lord, Lord Carlisle of Bucklow, drew attention to the inconsistencies and the deep unfairness of what it is proposed should be introduced. The changes to the scheme will, as we all recognise, have a severe effect on those who in future are going to be very seriously injured and for whom compensation from the scheme will, apart from state benefits, be their sole means of support.
Perhaps I may give some examples of what will follow and in particular mention one occupational group that is most likely to be at risk of assault from criminals; 1839 namely, the police. In last year's report of the Commissioner of Police for the Metropolis it was revealed that nearly 12,000 officers in London were injured while on duty. Taking account of their manpower, on average nearly every other officer was affected by injury. Since then, Sir Paul Condon, the commissioner, has indicated his serious concern about the escalation in the number of violent attacks on police officers. Yet this is the moment chosen by the Government to announce cuts in the awards made to such officers.
I shall quote the views of one firm of solicitors. Russell Jones & Walker have, as lawyers for the Police Federation, acted for police claimants for the past 30 years. Few other law firms can claim such a comprehensive knowledge of the principles and the operation of the scheme. This is what the firm has told the Police Federation will be the consequence of the Government's new scheme:The proposals will result in the vast majority of your members who are seriously injured receiving significantly lower standards of compensation".I cite the case of an officer who has been totally blinded as a result of an attack by a criminal. Under the new scheme the award would be £75,000, yet at the moment in such a case it is common for the board to award £85,000—£10,000 more—for pain and suffering alone. How can it be right to allow a blinded police officer, injured as a result of his duty to protect members of the public and deprived of the opportunity to continue his career, to have his compensation cut as a result of a decision by Ministers?
I shall give another example which was touched on by the noble and learned Lord, Lord Ackner: the case of a 75 year-old man who suffers perhaps a serious leg injury which causes paralysis. He will get a one-off payment of £25,000. It may be argued that that is reasonable given the expectation of life of that elderly man and his likely financial commitments. But precisely the same award will be paid to a 25 year-old police officer, with a young family, who had expected to serve for another 30 years in the service. That is wholly unjust.
Ministers have told us repeatedly that more should be done to help the victims of crime. They have told us also on innumerable occasions of the gratitude they feel to police officers who often have to confront vicious and violent criminals in the course of their duties. It seems extraordinary that in the light of those statements the Government are intending to make these savage cuts in the payments made to some of the most seriously injured victims of criminal attacks.
§ 5 p.m.
§ Lord Windlesham
I wish to join the debate from a different angle. I am aware that in doing so I expose myself to the risk of crossfire between the noble and learned Lord, Lord Ackner, who spoke with such force in moving the amendment, and the Minister who will reply. I must declare a personal interest in the issue of compensation for victims because two years ago, at the invitation of the former Archbishop of Canterbury, I 1840 succeeded him as President of Victim Support, the national association of the many victim support schemes throughout the country. I speak today in a personal capacity and not on behalf of Victim Support, but what I have to say will not depart very far from the policy of that organisation.
Financial compensation for injury sustained as a result of a criminal action has been of central concern to all those working with or for the victims of crime ever since the discretionary scheme was first inaugurated 30 years ago. Over time criticisms have developed—not unnaturally, perhaps, over a period of 30 years—of the Criminal Injuries Compensation Board procedures, which we have heard outlined so persuasively by the noble Lord, Lord Carlisle of Bucklow, the current chairman of the board. Criticisms there have been, nevertheless, and I can summarise them in the form in which they were listed in the report of a working party set up by Victim Support which reported earlier this year, soon after the publication of the Government's White Paper.
The report was headed "Compensating the victim of crime". The criticisms of the existing arrangements— the arrangements post-1964 until the recent change of policy—were as follows: first, the exclusion of many victims as a result of the lower limit on awards which was set at £1,000 in January 1992—perhaps the most common complaint of all; second, the refusal or reduction of awards on the basis of the applicant's character; third, the fact that hardship and psychological injury resulting from crimes are not classified as violent; fourth, the often unsatisfactory relationship between compensation under the CICB scheme and the payment of social security benefits; and fifth, the lack of clarity regarding the relationship between the compensation scheme and the role of insurance, the responsibility of employers, and compensation by offenders themselves.
For these and other reasons, including the very long delays which have been endemic in the CICB practice, Victim Support is not wedded to the present arrangements, based as they are on common law damages. But well before the Government published their own proposals, the criticisms to which I have referred led to much thought being given to what was or could be an alternative structure.
What should be the principles for compensating financially those who suffer from the criminal actions of others? They are easily stated. The essential requirements of a compensation scheme are, I am sure we can all agree, that it should be fair, simple to understand, and reasonably quick. The latter require-ment conflicts with the present arrangements based in common law damages that individual assessments conscientiously investigated and carried out are no longer suitable for the huge number of cases that have to be considered each year. Next, the exercise of discretion by any discretionary body should be contained within a clear and published framework. Compensation to victims of crime should surely relate to the victim's pain and suffering resulting from physical or psychological injury, or both, and to loss of amenity. There should be no minimum level designed to exclude all but the most "serious"—I put that word in 1841 inverted commas—injuries. Nor should there be exclusions based on a person's character or conduct, apart from provoking or colluding in the offence, or financial circumstances. There should be no distinction drawn between those who are regarded as deserving and those believed to be otherwise. Compensation or financial support should be available on the basis of need to victims of property crime who have suffered serious loss which affects their livelihood.
If those are the principles, what then are the features which should underlie a compensation scheme? Despite the strength of the defence we have heard of the Criminal Injuries Compensation Board, it is inevitable that there will be changes. So it is a question of how an alternative scheme should be constructed and what it should embrace.
I suggest that the features of a new compensation scheme should include the following. First of all, the victims of crimes of violence should receive compensation for pain, suffering and loss of amenity and for psychological injury. In addition, there should be compensation for particularly damaging psychological injury caused by other types of crime, including burglary and racial harassment.
We have been thinking along tram-lines for 30 years as we have compensated victims of crime. Victim Support believes that the time has come for a new social security payment called a "criminal injuries benefit" to meet victims' loss of earning capacity. That is a crucial point which is covered under the present arrangements but which will not be covered by the new arrangements. The payment should be non-contributory and non-means-tested. Loss, of, or damage to, essential material possessions where the victim is in need should be covered by social security payments. They should be means-tested, but should be made in the form of grants, not loans.
I come now to a vital matter that has already been raised in the debate. I refer to the victims of homicide. Let us not allow ourselves to fall into the trap of talking of murder victims. We are talking about the victims of homicide in all its forms. Relatives bereaved by homicide should receive a bereavement award above the present level. Those receiving it should include a spouse or partner, children in the same household or in regular contact, and a former spouse if dependent; or, where the deceased was not married, parents, brothers and sisters in the same household, parents living elsewhere if still in regular contact and children if still dependent. Victim Support has proposed that the basis of such a scheme could take the form of a tariff. Injuries would be rated on a fixed and published scale. However, an important reservation—before the Government Front Bench embraces us as allies—is that no such tariff should be adopted until the rest of the package is in place.
To summarise, tariff scales should be set at acceptable levels, with regular review and updating. A new criminal injuries benefit should be established within the social security system to compensate for victims' loss of earning capacity. There should be the removal of the £1,000 lower limit. Exclusions relating to character and previous convictions should be 1842 abolished. Payments should be made without deduction of social security benefits and should not lead to loss of those benefits.
I have spoken for rather longer than some other noble Lords, but I do so in order to broaden the debate and to set out an alternative approach lying between the Government's scheme and the preservation of the existing arrangements, which have been so eloquently defended by the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Carlisle of Bucklow. I too share their reservations about the way in which Ministers have handled this issue. It has been unfortunate. I should be surprised if there were not some embarrassment in the Home Office. However, looking forward to the future, I urge the Minister, and the Committee of the House, to consider the alternative proposals I have put forward.
§ 5.15 p.m.
§ Lord Bridge of Harwich
Unlike the noble Lord, Lord Windlesham, it is not my intention to go into details of comparison between the old scheme and the proposed government scheme because it seems to me that there is one overriding principle upon which the amendment depends—and that is that the basis of the scheme should be one that is prescribed by law and approved by Parliament and not one that is decreed by ministerial discretion. That is what the amendment is really about.
§ Lord Campbell of Alloway
I am grateful to the noble and learned Lord who has just spoken for having put in one sentence my own fundamental objections to the proposal. I wish to make a brief comment atout the proposals outlined by my noble friend Lord Windlesham. I find them difficult to understand. As I understand it, my noble friend says that individual assessment is no longer possible, yet when he expounds the principles of his new proposals, I do not understand how they could ever be implemented without an individual assessment.
On the main point made by other noble Lords, I hope that when my noble friend the Minister replies he will consider four points in particular: the manifest injustice of the tariff scheme; its absence of any flexibility; the manifest abuse of Executive power which has ensued; and the fact that various justifications that have been advanced by the Home Office have been demonstrated to be manifestly misconceived. I hope that my noble friend may be able to. give us some constructive and helpful advice.
We all have the greatest sympathy for all those who become the victims of terrible violence and crime. I sympathise as much as anyone with those who wish to ensure that the victims receive adequate compensation. The noble and learned Lord, Lord Ackner, made it clear that the purpose of his amendment is to reverse the introduction of the tariff scheme for criminal injuries compensation which was started on 1st April this year. His amendment aims to bring into force those provisions of the Criminal Justice Act 1988 which would place the criminal injuries compensation scheme on a statutory basis.
1843 Under the scheme that was set out in the Criminal Justice Act 1988, compensation would be assessed on the basis of common law damages and not on the basis of a tariff. To most intents and purposes, such a scheme would be the same as the non-statutory scheme which has been operating for the past 30 years or so. It would therefore continue to have what we see as all the disadvantages inherent in that scheme.
The provisions of the 1988 Act were not brought into force for two very good reasons. The first was that my noble friend Lord Carlisle, who was, and is, the chairman of the Criminal Injuries Compensation Board, requested a postponement so that the board could concentrate its efforts on dealing with the large backlog of unresolved cases. The second reason was that it became increasingly evident that the old scheme needed fundamental revision. I was grateful to my noble friend Lord Windlesham for saying that and for correctly addressing our minds to the fact that when something has been in operation for 30 years, it sometimes needs altering.
The noble and learned Lord, Lord Ackner, stated that the tariff scheme reflects the objections of the Government to the will of Parliament. He described its introduction as "elective dictatorship" and stated that it was an affront to parliamentary democracy. The noble Lord, Lord Lester of Herne Hill, stated that as the part of the 1988 Act which indicated the will of Parliament was not introduced it might as well have been written in water. The noble Lord, Lord Harris, stated that what the Government were doing was improper.
I can understand people holding those fairly strong views. However, it is right to point out that in our view what we did was not improper. The previous scheme was an executive scheme and began 30 years ago. It was run most effectively by the board, under the chairmanship of my noble friend Lord Carlisle. It was then decided to make the scheme statutory and that was why it was put in the Bill. However, for the reasons that I have given, it was also considered improper to bring it into a statutory state.
There is nothing improper in that because Section 171 of the Criminal Justice Act 1988 states:Subject to the following provisions of this section, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be appointed in pursuance of this subsection for different provisions or different purposes of the same provision".Although the Act included those provisions, it was up to the Secretary of State of the day to introduce them by parliamentary provisions as deemed necessary. So there was nothing wrong with the fact that they were not introduced.
Perhaps I may remind Members of the Committee —and I do not know whether the noble and learned Lord, Lord Ackner, will remember—that every year prior to Easter I am asked why the provisions of the Easter Act 1929 have not been brought into effect. The fact is that they can be brought into effect by statutory instrument and for various good reasons they have not yet been brought into effect. I do not believe that there is anything wrong or improper in that. The old scheme was devised 30 years ago for a fraction of the number of 1844 applications which are at present received. It was a complex scheme and unwieldy to administer. Despite the best efforts of the board, which had worked hard to reduce the time taken to process applications—and I readily and gratefully acknowledge those efforts—long delays were, unhappily, still common. The scheme was no longer capable of providing the kind of service which victims of crime might nowadays reasonably expect. My noble friend Lord Windlesham acknowledged that and he made a thoughtful contribution to what is a difficult and sensitive subject.
The fact is that the costs of the scheme were escalating rapidly. The noble and learned Lord, Lord Ackner, and my noble friend Lord Carlisle said, "Now we know the real reason why the tariff scheme was introduced". There were two reasons, one of which was the escalating costs. I make no apology for that. Of course, governments must take into account the costs imposed upon the taxpayer.
In the first full year of the scheme, which was 1965–66, there were 2,500 claims and the amount of compensation paid was £400,000. My noble friend Lord Carlisle criticised my right honourable friend for saying that costs were spiralling out of control. What are the facts? By 1987–88, when the Criminal Justice Act 1988 was being considered by Parliament, there were not 2,500 applications but 43,000 and the compensation paid was not £400,000 but £52 million. Last year—just six years later—the number of applications had risen to 73,000 and the amount of compensation within the same six-year period had risen to £166 million. That is a threefold increase in six years. If we had not changed the scheme, at the turn of the century —which is only six years away—the actual cost of compensation was likely to have exceeded some £500 million. My noble friend Lord Carlisle says that he does not accept those figures. We must make projections—all government departments do. I can say only that those figures were arrived at after careful scrutiny. I remind the Committee that usually when government departments make projections they turn out to have erred on the side of underestimating and then the Government are cursed for that. They are now being faced with greater expenditure than they had anticipated.
Change was essential in order to control what were the spiralling costs of the old scheme, although my noble friend does not like me to say that. It was also desirable to provide a better service to those who made claims. We believe that the tariff scheme, which started on 1st April, will meet those needs and I do not believe that it would be right to return to the old scheme.
My noble friend Lord Carlisle said that there had been no consultation about the matter. However, governments must take decisions on principles. Once the decision was announced in November 1992, there was considerable discussion with the board and we had many helpful suggestions for the refinement of the scheme.
The noble and learned Lord, Lord Ackner, the noble Lord, Lord Lester, and my noble friend Lord Carlisle argued that in disregarding the provisions of the 1988 Act and bringing in a tariff scheme by executive action we were somehow behaving in an unlawful and 1845 unconstitutional manner. I have referred to that, and I say only that the Government's action was challenged by way of judicial review. In a judgment on 23rd May, the High Court ruled that the Government's action was not illegal and nor was it improper or irrational. The application was dismissed. An appeal has now been lodged but no date for the hearing has yet been fixed. Until the Court of Appeal has delivered a judgment, I do not believe that we can go much further on the question of the propriety of the Government's action.
However, I believe that it would be right for me to try to explain what we are trying to achieve with the tariff scheme and what we are not trying to achieve. The White Paper which we published on 15th December last year explained that there is no objectively "right" sum of money which can compensate an individual for the pain and the hurt which are suffered as the result of an injury. That is what the old scheme tried to do on a basis comparable to common law damages.
Under the tariff scheme we are no longer aiming to provide finely judged "compensation". Instead, we are providing a tangible and still very generous payment in recognition of society's concern for the blameless victims of violent crime. The tariff scheme has one substantial advantage. It is simple, easier for the victims to understand and less complex to administer.
The noble and learned Lord, Lord Ackner, and my noble friend Lord Carlisle say that it takes no account of the age, sex, occupation or way of life of an individual. That is perfectly true. All victims with similar injuries will be treated in the same way and victims will have a good idea in advance how much compensation they are likely to get. That was far from the case under the old scheme. The basic rales for eligibility have been left broadly as they were. Therefore, anyone who might have expected an award under the old scheme should be eligible under the new tariff scheme.
There is also a new appeals system which is demonstrably independent from those who are administering the scheme. My noble friend Lord Carlisle asserted that our costings were wrong but adduced no evidence. I can say only that our costings were based on trends during the past 10 years as regards new applications, the number of awards and the average awards. We believe that they are as accurate and defensible as it is possible to make them. My noble friend referred to the average awards, but I do not think that it is helpful to quote average awards for any one month. If we are to quote average awards we must do so over a whole year. The average award in 1987–88 was £3,486. It increased in 1992–93 to £4,297. Both those figures are at 1993–94 prices.
The tariff levels were based on nearly 20,000 recent awards which were made by the Criminal Injuries Compensation Board. They reflect what actually happened in practice under the old common law damages scheme, to which some Members of the Committee have indicated they would prefer to return. In our view, it would not be right to substitute someone's subjective view of what the tariff award should be for a particular injury for the more objective approach that we have adopted.
1846 We estimate that under the new scheme 60 per cent. of beneficiaries will get the same or more than they would have done under the old scheme; and they will get their money more quickly. We accept that some people will get less. But most awards are comparatively small. In 1992–93, 86 per cent. of awards were under £5,000. And in the last three years for which figures are available, only seven awards a year on average exceeded the tariff scheme's upper limit of £250,000.
We must remember, too, that the criminal injuries compensation scheme is not the only source of state aid for victims of crime, or, indeed, victims of other misfortune. Generous long-term help is available from the National Health Service and the Department of Social Security. Many claimants also benefit from occupational pension and sickness schemes.
It is right that the state should support victims of violence. But state support should reflect the deed which was done and not the loss of earnings or the employment which the person concerned had. The compensation available from the state for, for example, having your face slashed or your nose broken should be the same whether you are a dustman or, as my noble friend Lord Carlisle of Bucklow said, a glamorous model. If you are in the latter category and have high earnings as a consequence, you might reasonably be expected to insure against loss of earnings for damage to your person—from whatever the cause. It is not reasonable, I suggest, to expect the taxpayer to pay out a greater sum to a glamorous model, or, as the noble and learned Lord, Lord Ackner, said, an airline pilot, just because she is a glamorous model or he is an airline pilot than to the dustman who has incurred equal pain, sorrow and distress but who has not enjoyed the advantage of high earnings.
§ 5.30 p.m.
§ Lord Carlisle of Bucklow
Will my noble friend not agree that the present scheme has a limit on earnings which is one and a half times the national average? Therefore, although the noble and learned Lord and I may have given examples of an airline pilot and a model, in fact the people who are earning about the national average, or up to one and a half times the national average, will lose out. People whose earnings are extremely high will be compensated only up to one and a half times the national average.
I dare say, but that does not alter the point that, where one is" dealing with state compensation and the payment of taxpayers' money, that should be directed to the deed that has been done to the person as opposed to the occupation that he enjoys.
The noble Lord, Lord Harris of Greenwich, referred to police officers. Police officers injured on duty will receive the full benefits of sick pay, which is unlimited, and the benefits of a pension scheme which provides for disablement in addition to the tariff award.
The noble Lord, Lord Harris, referred also to savage cuts by the Government. I do not believe that that is either true or fair. Our compensation scheme is by far the most generous in the world. In the most recent years for which figures are available, France paid out 1847 £20 million, Germany paid out £6 million and Great Britain paid out £152 million in compensation. Of the total sum of money paid out by state compensation schemes to victims of crime throughout the world, France paid out 4½ per cent., Germany paid out 1½ per cent., and Great Britain paid out 35 per cent. of all the money paid out in the world. Even the United States of America, where the population is five times higher than ours, where the gross national product is many times higher, where the amount of violent crime is greatly in excess of ours and where about a million people are in prison, paid out only some £10 million in total more than we did.
Our tariff scheme will still be the most generous state compensation scheme anywhere in the world. By the year 2000, it is estimated that we shall be paying out a sum approaching £250 million a year. And between now and then —only six years away—we expect to pay out a total approaching £1,400 million. We pay out, in fact, far more compensation than all the other European countries added together. That cannot be represented as savage cuts.
To revert to the old scheme—which is what this new clause aims to bring about—is simply not a viable option. Its cost was soaring—and I make no apology for saying that the Government have to look at all costs which the taxpayer is obliged to pay—and it was not providing the sort of service which claimants should expect. The time had therefore come for change in the interests of claimant and taxpayer alike.
The noble Lord, Lord Irvine of Lairg, asked whether we would consider a common law basis for the worst cases. I do not believe that that would work because a hybrid scheme would retain the worst elements of common law damages—that is, loss of earnings—and would make for great complexities and delay. It is difficult to set a defensible limit at the extreme end of the scale. There would be great scope for judicial challenge in borderline cases.
We have of course studied very carefully what was said in your Lordships' House on 2nd March, but we think our new tariff scheme is the right way forward. However, as we have made clear on several previous occasions, we shall monitor very closely the way it works. The terms of the tariff scheme are not set in stone. We shall listen to the views of responsible people and practitioners and, if the scheme can be refined or improved in the light of experience, we shall not hesitate to make the necessary changes.
The noble and learned Lord, Lord Bridge, said that he thought it should be a statutory scheme. Once the new scheme has settled down, and once any necessary changes have been made, it will be our firm intention to put it on a statutory basis as soon as the opportunity occurs. But we must of course be satisfied that the scheme is working as effectively as possible first. That is why we could not use this Bill to make the tariff scheme statutory. It is simply too early for that.
For those reasons, I hope that the noble and learned Lord will realise why we have made the changes that we 1848 have. These are not savage cuts. A great deal of money is being paid out to those people who, very regrettably, are the victims of crimes of violence.
§ Lord Colnbrook
Before the debate draws to an end, perhaps I may make two brief comments on what the Minister said. I have not joined in the debate because both my noble friend and noble Lords generally know my views on this issue. I made them quite clear in the debate on 2nd March. I do not like the tariff scheme and I am unhappy that it is not to be on a statutory basis.
I must tell the Minister that, having listened to the whole debate and having heard what he said, I still do not like the tariff scheme. However, I understood him to say that the Government would be prepared to alter it if suggestions were made to them about it. Many persuasive suggestions have been made to the Minister this afternoon. I am sure that many more suggestions will be made and I assure him that I shall be one of those to make suggestions because I still do not believe that it is a good scheme. However, the Minister has moved that far and he has agreed that the scheme can and will be altered if it can be shown that that is necessary. Therefore, I must congratulate him on moving that inch or so towards meeting the objections that have been raised.
I still believe that it should be a statutory scheme. I am sorry that my noble friend did not feel able to say that he would seek a legislative opportunity to make it statutory. He merely said that it would become statutory if an opportunity arose. I hope that he will not wait for such an opportunity to arise but will look for it, because all noble Lords believe that the scheme should be statutory, as I do.
Therefore, I offer a small measure of congratulation on moving a little towards recognising that the scheme that has been proposed is not absolutely right. But I am less pleased about what he said with regard to making the scheme statutory.
I do not know whether the noble and learned Lord proposes to press the matter to a Division. In view of what was said, I shall not vote against the amendment but I do not believe that I can support it.
My noble friend was good enough to say that I had moved an inch towards the accommodation which Members of the Committee seek. Perhaps I may congratulate him on congratulating me on an inch of approval which my noble friend apparently thinks I have given to the scheme.
I can quite understand that my noble friend prefers the previous scheme. Other noble Lords have expressed the same opinion. But for the reasons that I have given, we think that it is right that there should be a tariff scheme, and those reasons are wholly justifiable.
My noble friend wishes it to be a statutory scheme. One difficulty is that once it is put on a statutory basis it is set in stone. I said that we would be prepared—as, of course, we will be—to see how the scheme runs and, if it is possible to amend it and improve upon it, we shall be absolutely happy to consider so doing. If it is necessary to carry out such alterations, it would then be our intention to make it a statutory scheme.
§ Lord Lester of Herne Hill
I should be most grateful if the Minister could tell Members of the Committee whether he agrees that when Parliament enacted the 1988 Act and provided that the Secretary of State should bring that legislation into force on a day or days of his choosing Parliament must have intended that the Secretary of State would bring the Act into force on some day or days and not merely ignore the enactment of the statute and bring in a completely inconsistent scheme under the prerogative? Can the Minister also indicate whether he agrees that the European convention to which reference has been made requires that loss of earnings should be included in compensation for victims of violent crime? If that is right, how is it consistent with the tariff scheme?
With regard to what Parliament considered at the time the legislation was being dealt with in 1988, I do not believe that it would be right for me to comment. The fact is that we have to do what the Act says. The Act says that the scheme shall only come into operation on a day appointed by the Minister. That does not mean to say that the Minister has to appoint the day; indeed, I gave the Easter Act as just one example. The provision is there but the introduction is a matter for the Secretary of State of the day. As regards the European convention, we have no reason to believe that our tariff scheme contravenes such conventions in any way.
§ Lord Ackner
I have two quite separate points to make. The first relates to the criticism of the common law basis for the assessment of damages. I can well understand criticism being made as to how one evaluates the pain and suffering and the loss of amenities. However, that has not been the subject matter of criticism. What has been criticised—as, indeed, it has been by the noble Lord, Lord Windlesham, and which I find so difficult to follow—is the award of a figure for loss of earning, for the expense of medical matters and the like.
The whole purpose of the civil remedy for compensation is, as far as possible in financial terms, to put the victim back into a pre-accident state. One does that so far as concerns loss of wages by taking his annual figure and giving it the appropriate year's purchase based upon his expectation of working life—that may be, 12 or 15 years. One puts him back into the position in which he was previously by reimbursing him the cost of medical expenses past or future. One puts him back into the state in which he was previously by indemnifying him against the cost of having to alter his house or home. All of that is perfectly simple, straightforward and, I should have thought, wholly intelligible to the man in the street.
My second and entirely different point is that the Minister has totally failed to deal with a very serious constitutional point raised by the debate. Why did the Government ignore Parliament, some may say almost contemptuously, by refusing the opportunity given by the Bill to seek to amend the 1988 Act by modifying as they saw fit the provisions of the scheme provided for in detail by that legislation? I submit that the answer to the question is simple and twofold. First, the Government 1850 fully appreciated that the gross unfairness and impracticability of their proposed tariff scheme would have been unacceptable to Parliament. Secondly—and this is far more disturbing —by putting even a modified scheme on a statutory basis, it gives control of that scheme to Parliament where it should be and takes it away from the Minister who, as Members of the Committee have now seen, considers that he can do anything he likes without consulting Parliament.
Once more, this is a debate as to where power should reside. Should it reside with the legislature or with the Executive? It is as simple as that. Those of us who believe passionately in parliamentary democracy will, I believe, wish to support the amendment. Therefore, I press my amendment with enthusiasm.
§ 5.45 p.m.
§ On Question, Whether the said amendment (No. 154CA) shall be agreed to?
§ Their Lordships divided: Contents, 131; Not-Contents, 113.
|Division No 1|
|Ackner, L. [Teller.]||Harris of Greenwich, L.|
|Addington, L.||Healey, L.|
|Airedale, L.||Hollis of Heigham, B.|
|Aldington, L.||Hooson, L.|
|Annan, L.||Howell, L.|
|Ardwick, L.||Howie of Troon, L.|
|Bancroft, L.||Hughes, L.|
|Barnett, L.||Hylton-Foster, B.|
|Bath, M.||Iddesleigh, E.|
|Beloff, L.||Ilchester, E.|
|Benson, L.||Irvine of Lairg, L.|
|Bonham-Carter, L.||Jacques, L.|
|Boston of Faversham, L.||Jakobovits, L.|
|Brain, L.||Jay of Paddington, B.|
|Bridge of Harwich, L.||Jay, L.|
|Brightman, L.||Jeger, B.|
|Brimelow, L.||Jenkins of Putney, L|
|Broadbridge, L.||Judd, L.|
|Browne-Wilkinson, L.||Kagan, L.|
|Campbell of Alloway, L.||Kintore, E.|
|Campbell of Eskan, L.||Lawrence, L.|
|Carlisle of Bucklow, L.||Lester of Herne Hill, L. [Teller.]|
|Carmichael of Kelvingrove, L.||Liverpool, E.|
|Chichester, Bp.||Llewelyn-Davies of Hastoe, B.|
|Clinton-Davis, L.||Lockwood, B.|
|Craigavon, V.||Longford, E.|
|Dahrendorf, L.||Lovell-Davis, L.|
|Dainton, L.||Mallalieu, B.|
|Darcy (de Knayth), B.||Masham of Ilton, B.|
|David, B.||Mayhew, L.|
|Dean of Beswick, L.||McIntosh of Haringey, L.|
|Desai, L.||Merlyn-Rees, L.|
|Diamond, L.||Mersey, V.|
|Donaldson of Kingsbridge, L.||Molloy, L.|
|Dormand of Easington, L.||Monkswell, L.|
|Dundonald, E.||Monson, L.|
|Eatwell, L.||Morris of Castle Morris, L.|
|Elis-Thomas, L.||Napier and Ettrick, L.|
|Ennals, L.||Nathan, L.|
|Falkland, V.||Nelson, E.|
|Fisher of Rednal, B.||Nicol, B.|
|Foot, L.||Ogmore, L.|
|Gainsborough, E.||Oliver of Aylmerton, L.|
|Gallacher, L.||Peston, L.|
|Gilmour of Craigmillar, L.||Pitt of Hampstead, L.|
|Gladwyn, L.||Prys-Davies, L.|
|Gould of Potternewton, B.||Rea, L.|
|Graham of Edmonton, L.||Redesdale, L.|
|Halsbury, E.||Rees-Mogg, L.|
|Hamwee, B.||Richard, L.|
|Hanworth, V.||Rochester, L.|
|Rodgers of Quarry Bank, L.||Templeman, L.|
|Russell, E.||Thurlow, L.|
|Ryder of Warsaw, B.||Tordoff, L.|
|Seear, B.||Turner of Camden, B.|
|Sefton of Garston, L.||Warnock, B.|
|Shannon, E.||Weatherill, L.|
|Shepherd, L.||Wharton, B.|
|Simon of Glaisdale, L.||White, B.|
|Slynn of Hadley, L.||Wigoder, L.|
|St. John of Bletso, L.||Wilberforce, L.|
|Stedman, B.||Williams of Elvel, L.|
|Stoddart of Swindon, L.||Williams of Mostyn, L.|
|Strabolgi, L.||Wilson of Tillyorn, L.|
|Strafford, E.||Woolf, L.|
|Taylor of Blackburn, L.|
|Abinger, L.||Long, V.|
|Addison, V.||Lothian, M.|
|Annaly, L.||Lyell, L.|
|Arran, E.||Mackay of Clashfern, L. [Lord|
|Astor of Hever, L.||Chancellor.]|
|Astor, V.||Macleod of Borve, B.|
|Balfour, E.||Mancroft, L.|
|Bauer, L.||Marlesford, L.|
|Belhaven and Stenton, L.||McColl of Dulwich, L.|
|Birdwood, L.||Melville, V.|
|Blatch, B.||Merrivale, L.|
|Blyth, L.||Milverton, L.|
|Boardman, L.||Montgomery of Alamein, V.|
|Brabazon of Tara, L.||Mottistone, L.|
|Butterworth, L.||Mountevans, L.|
|Cadman, L.||Mowbray and Stourton, L.|
|Campbell of Croy, L.||Moyne, L.|
|Camegy of Lour, B.||Munster, E.|
|Carnock, L.||Murton of Lindisfarne, L.|
|Chalker of Wallasey, B.||Newall, L.|
|Chelmsford, V.||Norfolk, D.|
|Clanwilliam, E.||Northesk, E.|
|Colwyn, L.||Oppenheim-Barnes, B.|
|Cork and Orrery, E.||Orkney, E.|
|Courtown, E.||Orr-Ewing, L.|
|Craigmyle, L.||Oxfuird, V.|
|Cranborne, V.||Prentice, L.|
|Crickhowell, L.||Prior, L.|
|Cumberlege, B.||Rankeillour, L.|
|De L'lsle, V.||Reay, L.|
|Dean of Harptree, L.||Renfrew of Kaimsthorn, L.|
|Denton of Wakefield, B.||Rodger of Earlsferry, L.|
|Dixon-Smith, L.||Salisbury, M.|
|Downshire, M.||Saltoun of Abemethy, Ly.|
|Dudley, E.||Seccombe, B.|
|Eden of Winton, L.||Sharpies, B.|
|Ellenborough, L.||Soulsby of Swaffham Prior, L.|
|Elliott of Morpeth, L.||St. Davids, V.|
|Erne, E.||Strathcarron, L.|
|Ferrers, E.||Strathclyde, L.|
|Flather, B.||Strathmore and Kinghome, E.|
|Fraser of Carmyllie, L.||[Teller.]|
|Gisborough, L.||Sudely, L.|
|Goschen, V.||Swinfen, L.|
|Hailsham of Saint Marylebone, L.||Teynham, L.|
|Hanson, L.||Thomas of Gwydir, L.|
|Harrowby, E.||Torrington, V.|
|Henley, L.||Trumpington, B.|
|HolmPatrick, L.||Tugendhat, L.|
|Hooper, B.||Ullswater, V. [Teller.]|
|Howe, E.||Vaux of Harrowden, L.|
|Kitchener, E.||Vivian, L.|
|Knutsford, V.||Wakeham, L. [Lord Privy Seal.]|
|Lane of Horsell, L.||Walton of Detchant, L.|
|Lauderdale, E.||Wise, L.|
|Leigh, L.||Wynford, L.|
|Lindsey and Abingdon, E.|
On Question, amendment agreed to.
§ Resolved in the affirmative, and amendment agreed to accordingly.1852
§ 5.54 p.m.
§ Clause 134 [Powers to test prisoners for drugs]:
Lord Carmichael of Kelvingrove moved Amendment No. 154D:
Page 108, line 8, after second ("authorisation") insert ("obtained from the court upon cause shown").
§ The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 154E. Amendment No. 154D would impose an obligation on prison governors to obtain court sanction for carrying out testing of prisoners for drugs. The Bill allows prisoners to be tested for drugs by amending the powers of governors under the Prison Act 1952. There is no requirement under the Bill for any independent assessment of the need for any such testing and this amendment ensures that the governor can authorise testing if court authority is sought and obtained.
§ Amendment No. 154E deals with roughly the same point. As regards the question of authorisation, the amendment proposes imposing an obligation on prison governors to obtain court sanction for carrying out tests for drugs. The Bill allows the prisoners therefore to be tested for drugs by amending the powers of the governors under the Prisons (Scotland) Act 1989. Again, there is no requirement under the Bill for any independent assessment of the need for such testing, but this amendment ensures that the governor can authorise testing if authority is obtained from a court. I beg to move.
§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie)
As the noble Lord will appreciate, drugs are a serious problem not only throughout our society but also in our prisons. We are introducing these measures which will permit drug testing because we believe this will act as an important deterrent and a powerful signal that drug misuse in prisons is completely unacceptable. Prisoners who test positive for drugs will be subject to disciplinary proceedings.
The prison services are responsible for managing prisons. Powers are given to prison governors to allow them to do this as effectively and efficiently as possible. In carrying out their duties governors do not need to seek authorisation from the courts for other activities —not even those which might appear, on any ordinary test, to affect both the dignity and the privacy of prisoners, such as strip searching. I think it is generally accepted that such powers are necessary to maintain proper security and control.
I see no reason why authorising prison officers to require urine specimens for drug testing should be treated any differently. The Government will, of course, take into account their responsibility under the European Convention on Human Rights when establishing policy under the testing powers.
§ Lord Carmichael of Kelvingrove
I thank the Minister for that reply. I believe that what he said in the latter part of his reply provides me with the opportunity to withdraw the amendment, although I will of course read carefully what he said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 154E not moved.]
1853 Clause 134 agreed to.
Clause 135 [Powers to search by authorised employees in prisons]:
Lord McIntosh of Haringey moved Amendment No. 154F:
Page 109, leave out line 6.
§ The noble Lord said: In moving Amendment No. 154F I wish to speak also to Amendment No. 154G. These are really probing amendments because it seems to us that there is a potential contradiction in the Government's proposals where there are non-prison officers—in other words, civilians —acting in prisons. One of the particular problems is the use of reasonable force in searching prisoners. As has been confirmed, prison officers are also constables and they have the powers of the constable. Therefore, they have necessarily the power to search using reasonable force. However, civilians are not constables and it is not proposed that they should be constables, and they will have to be asked to carry out searches. If they are asked to search, as part of their duties, if the search is to be effective they will also have to be asked to use reasonable force. It could be argued that they stand in some risk. For example, they could be taken to court for assault if the reasonable force tips over the borderline between reasonable and unreasonable. Who knows exactly what the borderline will be in any particular case? Who knows what happens if a prisoner refuses to be searched? A complication with the Bill as drafted is that civilians, not being constables, retain the right to strike. It is conceivable that they could do so in order to avoid that risk, which I have identified, of being taken to court for assault.
§ We are concerned that the use of civilian staff instead of prison officers who are constables should not be used as an excuse for low staffing in prisons. An escape from Dartmoor prison last month highlighted the lack of staff on duty in prison workshops. Where there were once prison officers on duty in the workshops now those on duty are civilians rather than prison officers. If the clause had been in place at the time it would not have stopped the escape. Only officers overseeing the workshop would have done so.
§ I suggest that the Government are in a difficulty. I hope that they will respond positively, at least to the thinking behind these simple amendments. I beg to move.
§ 6 p.m.
§ Lord Fraser of Carmyllie
Perhaps I may begin by saying to the noble Lord that while, of course, he is correct in saying that on this side of the Border a prison officer has the powers of a constable, in Scotland he does not have the same powers. That forms part of the provisions in a later clause. It does not bear directly on this provision, but I thought I had better make that point clear.
As the noble Lord explained, the purpose of the clause is to give "authorised employees" in prisons (not only in England and Wales but also in Scotland) limited powers to search prisoners. The amendments would 1854 remove the provisions which provide that reasonable force may be used by authorised employees when searching prisoners.
Clause 135 enables governors to authorise some non-prison officer grades to conduct "rub-down" searches for unauthorised items. In our view it would be useful for certain grades of civilian staff who regularly supervise activities involving prisoners—for example, when prisoners are leaving a kitchen party or workshop and are given a pat-down or rub-down search to check that they have not concealed any knives from where they have been which might subsequently be used as weapons. In those circumstances, I should have thought that there was good reason to do that rather than allow a prisoner to move out of that particular area and to be searched by a prison officer later. To do it immediately would be good sense.
It is certainly not envisaged that civilian staff would be used to search prisoners who would be likely to create difficulties or that they would be required to search forcibly a prisoner who resisted. If that happened they would be advised to call on prison officers to carry out any such search.
The provisions allowing the use of reasonable force are viewed as a sensible protection for staff. They would protect those carrying out searches under this power against allegations of mistreatment arising from normal searching procedures.
The provisions on reasonable force are a necessary part of the clause. I hope that the noble Lord will realise that without it the sort of difficulties which he envisaged might arise in courts would be all the greater if the provision were not included.
§ Lord McIntosh of Haringey
I still see a contradiction in the Government's point of view. They argue on the one hand that authorised civilian employees will not be called upon to search prisoners in conditions where they might resist and therefore force may be required, and at the same time they say that it is a reasonable precaution that they should be authorized to use force regardless.
§ Lord Harris of Greenwich
How could they possibly make such a judgment as to when they should intervene in this way and when they should not? It seems quite extraordinary.
§ Lord McIntosh of Haringey
I am grateful to the noble Lord for anticipating my next sentence. I do not believe that one can tell in advance.
This is not a matter on which I seek to divide the Committee. I shall read carefully what the Minister said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 154G not moved.]
Clause 135 agreed to.
Clause 136 [Prohibited articles in Scottish prisons]:
Lord Carmichael of Kelvingrove moved Amendments Nos. 154H and 154J:
Page 110, line 21, leave out ("in relation to which he has committed or is committing an offence under") and insert ("to which").
Page 110, line 23, after ("1993") insert ("applies").
§ The noble Lord said: Perhaps it will be for the convenience of the Committee if I speak to Amendments Nos. 154H to 154P collectively and also to Amendment No. 154Q.
§ Amendment No. 154H leaves out the offence requirement provisions of the Carrying of Knives etc. (Scotland) Act 1993. As the Committee will know, that Act provides that it shall be a criminal offence to carry or have in one's possession knives and other blades with a length of more than 3 inches. The Bill creates an offence of introducing an article which is contrary to the Carrying of Knives etc. (Scotland) Act 1993 into prison. In our view there is no defence outwith the reasonable excuse of the provisions of Clause 136 for introducing such an article into a prison. Amendment No. 154J is a consequential amendment.
§ Amendment No. 154K is necessary because, on occasion, a child will instruct a solicitor in respect of his business and as this relates to the alleged commission of a serious offence it is important that the child is fully and independently advised as to his rights and responsibilities.
§ Amendment No. 154L is a consequential amendment. Amendment No. 154M ensures that the child's solicitor shall have access to the child who has been detained under Clause 136(3).
§ The provisions in respect of parents who may have been involved in the offence under Clause 136(3) do not apply to solicitors. Accordingly, it is appropriate that such a provision allows a solicitor access to the child in the event of detention under Clause 136(3).
§ Amendment No. 154N clarifies the persons who may be informed of the child's detention under Clause 136(8). Amendment No. 154P ensures that not only those who have physical possession of the child are entitled to knowledge of the detention. I beg to move.
§ Lord Fraser of Carmyllie
I am grateful to the noble Lord for putting forward Amendments Nos. 154H and 154J. These amendments will indeed make the provision easier to apply in providing for consistency of treatment under the proposed Section 41(1) of articles to which Section 1 of the Carrying of Knives etc. (Scotland) Act 1993 applies. It would be my advice to the Committee that Amendments Nos. 154H and 154J should be accepted.
Turning to Amendment No. 154K, the provision in Clause 136 with regard to children reflects the safeguards to be found in Section 3 of the Criminal Justice (Scotland) Act 1980 in respect of temporary detention there by the police. The intention is to ensure that the legal guardian of the child is informed without delay of the child's temporary detention. It must then be for the parent or guardian—not the prison authorities —to inform whosoever he or she pleases, possibly a solicitor.
As regards Amendments Nos. 154L and 154M, the provision for access to the child is solely to provide the child with company in a strange environment. If the 1856 police decide to arrest the child then the child will have the same rights to have a solicitor present as any other arrested person would have in similar circumstances.
Turning to Amendments Nos. 154N and 154P, following the Age of Legal Capacity (Scotland) Act 1991, there are only two kinds of "curator" known to Scots law. A "curator ad litem" is a person appointed solely for the purpose of instructing the conduct of actions raised by, or defences to actions raised against a child. A "curator bonis" is a person appointed, essentially, to administer the property of a child, while a "safeguarder" is a person appointed in our children's hearing system to provide separate representation for the child at that hearing in the unusual circumstances of a conflict of interest having arisen between that child and his parents. The extent to which those persons can act as an agent for the child is limited. I see no need, or advantage, in seeking to inform such a person. It seems to me that the clause as drafted is sufficiently wide to ensure that the appropriate person is informed.
Nor is Amendment No. 154Q appropriate. It is the parent or guardian of the child who should be informed. They have the legal responsibility for the child. The person nominated by the child might not.
I have indicated my view on the first two amendments. I hope that the noble Lord will withdraw his other amendments.
§ Lord Carmichael of Kelvingrove
I am most grateful to the Minister for accepting those amendments. In the plethora of reading, I was not exactly sure which amendments he accepted.
§ Lord Fraser of Carmyllie
Amendments Nos. 154H and 154J.
On Question, amendments agreed to.
[Amendments Nos. 154K to 154P not moved.]
Lord Fraser of Carmyllie moved Amendment No. 154PA:
Page 112, line 28, leave out ("child") and insert ("person under 16 years of age").
§ The noble and learned Lord said: This is a technical amendment. I beg to move.
§ [Amendment No. 154Q not moved.]
§ Clause 136, as amended, agreed to.
§ [Amendment No. 155 had been withdrawn from the Marshalled List.]
§ 6.15 p.m.
The Earl of Longford moved Amendment No. 156:
After Clause 136, insert the following new clause:
("Duty to provide resettlement assistance to released prisoners
(1) Where a released prisoner is subject to a licence, it shall be the duty of the Secretary of State to ensure that the supervision received as a condition of that licence includes advice and assistance to further the resettlement of that released prisoner.
(2) Where a short-term prisoner (within the meaning of section
33(1) (a) of the Criminal Justice Act 1993) is released
unconditionally, it shall be the duty of the Secretary of State to
ensure that that released prisoner receives advice and assistance
to further his resettlement.
(3) In subsections (1) and (2) above, "advice and assistance"
to further the resettlement of released prisoners shall include, in
particular, advice and assistance in connection with finding—
§ The noble Earl said: The amendment has the effect of placing a statutory responsibility on the Government to provide assistance with housing and employment, in particular, for all those who leave prison. I shall speak briefly on the subject if only because I introduced a debate on 18th May and noble Lords may read what I said on that occasion.
§ Perhaps I may venture to repeat one point that I made at the beginning of that debate. I do not believe that anyone will seriously argue that the prospects today for prisoners who leave prison are any better than when I, with the help of others, founded the New Bridge for Ex-Prisoners nearly 40 years ago. On the one hand, a great deal has been done by voluntary bodies, to whom all honour; and the Government have done not a little. On the other hand, there has been a great increase in unemployment since those days and the prison population is much larger. On the whole, if one left prison today the prospect would be no better than it was 40 years ago.
§ At the end of the debate on 18th May I submitted three propositions. I shall refer to only one. I urge the Government to provide more generous assistance to the voluntary bodies and to multiply the number of excellent resettlement provisions that they have begun to establish. That brings me to the subject that I put forward today. I urge the Government to accept statutory responsibility for helping all those who leave prison to find jobs, and accommodation in particular
§ At present, under the 1991 Act there is a statutory responsibility on the probation service for supervising all those who have served more than one year in prison and have been sentenced since the autumn of 1992. My proposal extends that responsibility in more ways than one. On the one hand, I should like responsibility extended to all prisoners whenever sentenced and whatever the length of sentence. On the other hand, I admit that it should no longer be a supervising responsibility—a rather negative role—but a respon-sibility actively to help those prisoners find jobs and accommodation. It is a straightforward case. On the last occasion the Minister showed a good deal of sympathy for what I said. I accused him of painting a rather ideal picture, but that was better than painting no picture.
§ I make no secret of one factor. My proposal is bound to mean an increase of resources; not on a vast scale, but in numbers of probation officers. They are already extremely hard-worked people and this proposal adds to their duties. That means an increase in the government resources devoted to the probation service. I refer to the probation service in relation to its assistance to prisoners. Those resources at present are not large. The Government spend £40 million in helping the probation service to look after prisoners from a total of £1,400 million on the prison service. That sum could be greatly increased—I do not speculate on the figure—without breaking the Bank of England.
§ That is my case. I hope that the noble and learned Lord will show sympathy for it. I recognise that I am asking for an increase in resources and I do not expect it tonight. I do not expect him suddenly to say, "Yes, there is some money available that we had not thought 1858 of before". However, I expect him to say that it is a desirable target and an objective which the Government share in principle.
§ If the Minister cannot go quite so far as that, perhaps he will tell us what guidelines are being issued to the probation service with regard to helping, not simply supervising, prisoners. On the last occasion he indicated that there were such guidelines. I am informed by the Home Office that there are helpful guidelines. May we at least be told that? Perhaps he will go further and express general sympathy for the objective that I have stated. I beg to move.
§ Baroness Seear
I strongly support the amendment. Indeed, I go a little further than the noble Earl. We all welcome the fact that the Home Office has issued guidelines to the probation service to put much greater emphasis on the employment of ex-offenders. The amendment proposes that help should be given to prisoners when they come out of prison. However, it would greatly strengthen the position if more care were to be taken to prepare people while they are in prison for obtaining a job when they are released. The probation service has made it quite clear that the chance of recidivism greatly recedes when an ex-prisoner can obtain a job.
It would be useful for the Government to consider what has become common practice in Germany. From the very beginning of a sentence the question of training for subsequent employment is taken on board and is ranked high in the planning of the sentence so that training can be given in prison to enable the ex-prisoner to obtain a job. The fact is, as the recidivism figures show, that if a man or a woman —fortunately perhaps there are far fewer women involved—has little skill, even with no criminal record it is extremely difficult to obtain a job. If a man has little skill, poor education —those factors apply to a great many prisoners—and a criminal record into the bargain then (as I once dared to say to a meeting of the Metropolitan Police) in his own interests he had better settle for burglary as a career because he has no chance of earning a living in any other way.
The amendment puts great emphasis on the enormous importance of providing relevant—that is the important word—training in prison. The one thing that prisoners have to an unlimited extent is time. Surely we can use that time to train prisoners, and do so for relatively little expenditure compared to the cost of keeping them in prison and returning them to prison, which is so common. Training prisoners with an eye to the jobs that they can obtain after prison involves collaboration with employers. An increasing number of employers are prepared to give that collaboration if the prison service will provide the resources for relevant training—I stress relevant training—while people are in prison.
§ Lord McIntosh of Haringey
I wish to support my noble friend and the valuable points made by the noble Baroness, Lady Seear. I am sure she is right. It is what is done in prison rather than after release from prison that will be effective in ensuring that ex-prisoners find suitable employment.
1859 I disagree slightly with my noble friend when he says that it will cost more money. Of course, in the short term it will do so in the sense that the modest £40 million budget of the probation service in dealing with prisoners will immediately require an increase. But in the longer term, surely, bearing in mind the much larger cost of the prison service as a whole, the amendment will stop prisoners going back into prison. That is the really important point. There are far too many cases of people coming out of prison and finding themselves without either a job or somewhere to live or both and virtually going straight back into prison in order to find something to do and somewhere to live. Even in the most modest, minimal sense, it may well be that the provision of resettlement advice for which my noble friend asks will save money rather than cost money.
§ Lord Fraser of Carmyllie
I am grateful to the noble Baroness, Lady Seear, and to noble Lords who have contributed to this short debate. As the noble Earl indicated, we had an interesting debate last month on just this subject. From that debate it was clear that while there may be differences of emphasis, there is a clear appreciation that it is part of the system for which there should be real anxiety.
Supervision in the community following release from custody has three main objectives: it is intended to protect the public, to prevent re-offending and to help offenders to resettle successfully in the community. Effective supervision challenges offenders to accept responsibility for their crimes and seeks to gain their co-operation in avoiding offending in the future and becoming responsible members of the community.
Effective supervision also helps offenders to resolve personal difficulties linked with offending and to acquire new skills. It follows that the focus of supervision is then primarily on tackling offending behaviour. Intervening to address practical difficulties, including accommodation and employment, forms an integral part of that supervision. However, the point I wish to make to the Committee is that it is just one of the many elements that combine to form supervision.
Offenders are individuals. Some may require assistance and advice in order to secure accommodation or employment where others may not. Some may need, for example, to attend a treatment programme in order to tackle offending behaviour; others may not. To be effective, therefore, a programme of supervision must be adapted carefully to the individual circumstances of the particular offender. It should also take into account and, indeed, build on the work carried out with that individual offender during his time in custody. I wholly share the objective that the noble Baroness, Lady Seear, sought to impress upon us.
To accept the amendment would, in our view, place undue emphasis on what is just one part of the overall picture. It would shift the focus of supervision away from tackling offending behaviour and it could even hinder the supervising officer in determining, within the framework of national standards for the probation service in England and Wales, the most effective programme of supervision for the individual offender.
1860 The proposed amendment extends to offenders sentenced to less than 12 months' custody. As the noble Earl will appreciate, such offenders are released unconditionally at the halfway point of sentence. They are not subject to licence or statutory supervision and no form of assistance or advice can therefore be imposed on them. Having said that, the probation rules in England and Wales make it a duty of a probation officer to advise, assist and befriend any offender who is released from custody other than on licence who is willing to be assisted. Provision already exists therefore for offenders in this category to receive supervision on a voluntary basis. In practice, voluntary supervision often means advice and assistance, again with practical difficulties, including accommodation and employment. So I say to the noble Earl that the amendment would serve no useful purpose other than to duplicate existing arrangements.
While being unable to accept the amendment, the Government recognise that securing employment and accommodation can be very important factors in helping an offender to establish a settled and law-abiding lifestyle. Those issues are being actively addressed by both the prison and the probation services during the custodial and the community parts of the sentence.
It would take time to elaborate and we have been over some of the detail in the previous debate, but I do not consider that there is any real difference between us other than that, although we share the objective, I would not wish to give an undue emphasis when the individual circumstances of an offender might require a different emphasis to be given.
§ Lord Harris of Greenwich
I am rather disappointed by that reply. The noble and learned Lord said that he was not in favour of the amendment because it would give undue emphasis to the two factors spelt out in the amendment. However, that is a wholly bogus argument. As chairman of the Parole Board, I found that when looking at cases my colleagues and I examined those two specific issues because they were absolutely critical in determining whether a person was likely to return to custody at some stage in the future. If there were unsatisfactory accommodation arrangements, the likeli-hood of re-offending increased substantially. The same was true as regards employment.
The real reason why the noble and learned Lord does not want to accept the amendment has nothing to do with the argument he put forward this afternoon. The real argument is about resources. I recognise that this is a difficult matter for the Government. Like previous governments, they have undoubtedly increased resources available to the probation service by a significant degree. They are also increasing expenditure on prison accommodation at a far more rapid rate because of the great increase in the prison population due to the "prison works" philosophy of the present Home Secretary.
It seems to me that it is ill-judged to attempt to resist an amendment of this kind which could have the effect of limiting the likelihood of people getting into trouble with the police after their return from prison. I find it depressing because it seems to me that for a relatively modest increase in resources—and there would be 1861 additional expenditure—one could limit the remorseless increase in the prison population. On Monday this week the noble Earl, Lord Ferrers, at col. WA 83 of Hansard, gave a Written Answer to a Question which I put about the pressure on local prisons. The Answer showed that in the overwhelming majority of local prisons, where short-term prisoners tend to congregate, there is massive overcrowding. Month after month, those figures increase. Here is an opportunity for lessening pressure to some degree on local prisons. Yet the Government resist an amendment which might have a significant effect on some prison service establishments. I find that depressing because we are confronted with a most alarming increase in the prison population in local prisons. We still have a substantial number of prisoners in police cells and yet here is an amendment which could have a useful effect in terms of limiting the likelihood of re-offending by short-term prisoners. But the Government resist it. That is a pity.
§ The Earl of Longford
I am very grateful to my noble friend the acting Leader, to the noble Baroness, Lady Seear, and to the noble Lord, Lord Harris, for their support of this amendment. I entirely accept the correction that was offered by the noble Lord, Lord McIntosh, and the supplements that were provided by the noble Baroness, Lady Seear, and the noble Lord, Lord Harris.
I shall speak very briefly. I am rather conscious of the fact that I made many of the important points on the last occasion. But I am bound to say that I was astonished at the reply that was given by the noble and learned Lord. I accused him on the last occasion of painting an unreal picture. I certainly do so now. For some years I have visited prisons, on average one a week. What the noble and learned Lord told us is unrecognisable in relation to the situation of those who leave prison today. Anyone who visits prisons knows that perfectly well.
In the circumstances I should like to discuss with the noble Lord, Lord McIntosh, the noble Baroness, Lady Seear, and the noble Lord, Lord Harris, how we should proceed at the next stage, but at the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 6.30 p.m.
Baroness David moved Amendment No. 156A:
After Clause 136, insert the following new clause:
§ (2) In paragraph 5(2) after the words "medical practitioner" there shall be inserted the words "or a clinical psychologist".
§ (3) In paragraph 5(3) (c) after the words "medical practitioner" there shall be inserted the words "or such clinical psychologist".
§ (4) In paragraph 5(6) after the words "medical practitioner", in the first place where they occur there shall be inserted the words"or clinical psychologist", and in the second place where they occur there shall be inserted the words "or a clinical psychologist".
§ (5) In paragraph 8(a) after the words "medical practitioner" there shall be inserted the words "or clinical psychologist".").
§ The noble Baroness said: This is a new clause to allow conditions of treatment for a mental condition in a probation order to be carried out by a clinical psychologist.1862
§ This issue has been raised with the All-Party Penal Affairs Group by the North West Thames forensic psychiatry service, which has pointed out that the present law appears to restrict such treatment conditions to treatment carried out by or under the discretion of a duly qualified medical practitioner. However, multi-disciplinary treatment in psychiatric services has ensured that clinical psychologists have developed expertise in providing treatment to offender-patients, and in some cases that is the most appropriate form of treatment.
A note provided to the group by the chief psychologist for the North West Thames forensic psychiatry service states:
'The problem behaviours for which psychological help is particularly applicable are aggressive behaviour, anger control problems and sexual deviancy, which invariably means treatment for associated psychological states, namely anxiety, depression, inter-personal skills deficits, bereavement problems, neurotic and personality disorders. A considerable number of cases are offenders who have themselves been victims of physical and sexual abuse. A psychological approach is particularly appropriate for persistent offending not apparently motivated by gain, for example for shoplifting, talcing and driving away, gambling and arson.
Psychological treatment may be carried out in a number of ways. The offender may be seen by the psychologist individually or together with his/her partner or family members or it may be appropriate for the offender to be seen as a member of a group of offenders. The length of time over which treatment may be provided and the frequency of treatment are also likely to be variable. Some treatments can be delivered intensively over a brief period, others require a regular contact over an extended period while still others may involve a number of episodes of intensive treatment interspersed with breaks in treatment. These variables … may result in complex treatment programmes, in which eg a period of individual treatment might be followed by a period of group treatment while occasional family meetings continue throughout".
§ Courts sometimes use the provisions for making requirements as to activities to get round this problem by, for example, requiring a sex offender to present himself "to Miss X at hospital Y for 100 days". However, this is a clumsy way of approaching the issue because it removes clinical responsibility for the appropriate frequency and duration of contact, which may as time goes on turn out to be more or less than 100 days.
§ The better solution would therefore be to give courts the power in appropriate circumstances to make treatment conditions to a clinical psychologist on the same basis as to a psychiatrist; and this is what the new clause provides. This amendment is very uncontroversial. I hope that it is helpful and that it can be accepted quite quickly. I beg to move.
Paragraph 5 of Schedule 1A to the Criminal Justice Act 1991 provides the courts with the power to attach to a probation order, as an additional requirement, that the offender should undergo treatment for a mental condition.
The Act also specifies that, under those circumstances, the treatment should be by or under the direction of a duly qualified medical practitioner who, under Section 12 of the Mental Health Act 1983, is one who has been approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.
1863 The purpose of the noble Baroness's amendment, as she explained, is to provide the courts with the additional option of a clinical psychologist—that is, a person who is listed on the charter of the Royal College of Psychologists—to oversee or to carry out the treatment.
The amendment would have the effect of clarifying the practice of what is, in fact, already being done. Clinical psychologists already regularly take on the responsibility for the supervision of offenders who are on probation and who are required to undergo treatment for a mental condition and this practice is considered by the Department of Health to be quite effective in treating their offending behaviour.
I recognise the helpful intention which lies behind the noble Baroness's amendment. There is undoubtedly some force to the arguments which she has adduced in support of it. The amendment, as it is, though, would not be acceptable, for technical reasons. What I should like to do, if I may, is to give some consideration to what the noble Baroness has suggested. If she would be kind enough to withdraw he amendment, I should like to reflect on the full implications of what she seeks to do. If after such reflection we conclude that it would be right to amend the 1973 Act, I should like to consider— without commitment—the possibility of bringing forward an amendment at a later stage of the Bill.
§ Baroness David
I thank the Minister very much for that helpful reply. With the promise that it will be looked at and considered, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 156B:
After Clause 136, insert the following new clause:
§ ("Harassment, alarm or distress
§ Offence of causing intentional harassment, alarm or distress In Pan I of the Public Order Act 1986 (offences relating to public order), after section 4, there shall be inserted the following section—
§ "Intentional harassment, alarm or distress.
§ 4A.—(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
- (a) uses threatening, abusive or insulting words orbehaviour, or disorderly behaviour, or
- (b) displays any writing, sign or other visiblerepresentation which is threatening, abusive orinsulting,
- thereby causing that or another person harassment, alarm or distress.
§ (2) An offence under this section may be committed ina public or a private place, except that no offence iscommitted where the words or behaviour are used, or thewriting, sign or other visible representation is displayed, bya person inside a dwelling and the person who is harassed,alarmed or distressed is also inside that or another dwelling.
§ (3) It is a defence for the accused to prove—
- (a) that he was inside a dwelling and had no reason tobelieve that the words or behaviour used, or thewriting, sign or other visible representationdisplayed, would be heard or seen by a personoutside that or any other dwelling, or
- (b) that his conduct was reasonable.
§ (4) A constable may arrest without warrant anyone hereasonably suspects is committing an offence under this section.1864
§ (5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.".").
§ The noble Earl said: The purpose of this amendment is to provide higher penalties for those whose language or behaviour deliberately harasses, alarms or distresses another person. This new clause fulfils a commitment that was given by the Government at an earlier stage of the Bill when it was in another place. We indicated that we wanted to bring forward a provision that would enable the courts to deal more effectively with serious racial harassment, particularly where it is persistent. I must apologise to the Committee for having been unable to table the amendment sooner, but it has proved particularly difficult to draft a measure which does not create anomalies but which is nevertheless effective.
§ Although we set out to address the problems of racial harassment, race is not mentioned in the clause. To have done so would have meant that prosecutors were faced with proving not only the fact of the offence but also that it was racially motivated. Proving motivation beyond reasonable doubt is particularly difficult. We would not want someone to escape the higher penalties which are provided by this new offence simply because it was difficult to prove the motivation, even where his actions were unpleasant and deliberate. The new offence will therefore apply equally to harassment on other grounds, such as being offensive, for instance, to people who are in wheelchairs or who suffer some other form of impediment or disability. It is obviously right that the same punishment should be available for behaviour causing the same distress, whatever the motive may happen to be.
§ We have also deliberately not referred in this amendment to persistence. It proved impossible to define persistence in a way which would allow the police and the courts to operate with any certainty. Whatever definitions were chosen would inevitably have led to anomalies and absurdities. For example, would two offences in two months be persistence; or would it have to be two weeks; or two hours? It would also not be possible to deal satisfactorily with different offences of varying seriousness which were committed against the same victim over a period of time.
§ We have therefore based our offence on the existing Section 5 of the Public Order Act 1986; that is, threatening, abusive or insulting words or behaviour causing harassment, alarm or distress. Section 5, which is the lowest in the series of public order offences does not require anything more than threatening, abusive or insulting conduct within the hearing or the sight of a person likely to be caused harassment. It is punishable with a maximum fine of £1,000. For the new offence there is the added element of intent and the requirement for a person to be caused harassment. Those are important if we are to distinguish the new offence from the very wide range of behaviour covered by Section 5 and to justify moving from a fine of £1,000 to a maximum of six months' imprisonment and/or a fine of £5,000.
§ I do not feel that they will prove a difficulty in dealing with the incidents of racial harassment with which too many people in Britain are only too familiar. 1865 Abuse or threatening behaviour which is directed at individuals or households will clearly have an element of intent and someone will have been harassed. The repetition of offensive behaviour, whether it is within two hours, two weeks or two months, could also indicate intent to cause harassment. A new power of immediate arrest has also been added. In our discussions with the police it was clear that they felt that the new arrest power would help significantly in enabling them to take immediate action against offenders and to reassure the victims of racial harassment.
§ Perhaps I may also say that we have considered very carefully the different possible approaches to dealing with the problem of racial harassment. We believe that this amendment offers an easier and more effective way of tackling the issue than do other suggestions. It does so without creating anomalies and it keeps within the general framework of public order legislation. The Government have wanted to use the opportunity of the Bill to bring forward changes to the law which are effective in dealing with these problems and are consistent with other criminal law provisions. I believe that we have done that.
§ The Government will continue to look at ways of further improving the ability of the criminal justice system to deal with such terrible crimes. Next week we expect the publication of the report of the Home Affairs Committee into racially motivated crime. The Government will look very carefully at its recommenda-tions. The problems of racial violence and harassment are matters which the Government take very seriously indeed. We shall continue to look for effective ways of dealing with them. I beg to move.
§ 6.45 p.m.
§ Lord Irvine of Lairg
There are three amendments on the Marshalled List which relate to harassment: the amendment just moved by the noble Earl; Amendment No. 159E in my name, which we shall come to later; and Amendment No. 159H in the name of the noble Baroness, Lady Flather. The noble Earl's amendment, as he explained, would create a new offence of intentionally causing a person harassment, alarm or distress. It would have to be proved both that the person charged had the specific intent to cause a person harassment, alarm or distress and that that was actually caused.
I have four basic criticisms to make of the proposed new clause. I must also observe that there is nothing in the clause to indicate that in the Government's view racial harassment is a more serious matter than other types of harassment. First, the clause is limited to conduct which involves the use of,threatening, abusive or insulting words or behaviour, or disorderly behaviour, or … a threatening, abusive or insultingdisplay or representation.
As the noble Earl said, that largely repeats the current provisions in Section 5 of the Public Order Act. The words or conduct must be threatening, abusive or insulting.
There is a range of conduct which is either a trespass or a nuisance but which is not covered by this clause. That is our first concern. For example, it would not 1866 cover the intentional playing of loud music outside the home of the victim, nor the deliberate creation of a din in neighbouring premises. That would not qualify as disorderly behaviour, which connotes physical disturbance or disruption. It would not cover entry on the victim's premises which is not threatening but designed to cause annoyance or irritation. It would not cover daubings on the walls of the victim's home unless those daubings were either threatening, abusive or insulting. It would not cover the distribution of pamphlets or other written material to the victim's house which was offensive without being insulting.
In Cozens v. Brutus in 1973, this House, in its judicial capacity, held that conduct which was annoying or irritating, or which showed a disrespect or contempt for the rights of others, did not necessarily qualify as insulting, no matter how much resentment it induced. It must also be highly questionable whether the dumping of refuse in the victim's garden would qualify as insulting as distinct from being deeply offensive. The scope of this provision, therefore, is such that it does not effectively deal with the problem of low level harassment, which the Government recognised in the other place was not covered by the existing Section 5.
Secondly, the amendment refuses to recognise that racial harassment is prevalent, that it specifically selects its victim and singles out him or her because of race or colour. That is not expressly covered by the clause.
Thirdly, it is difficult to understand how it can be possible for conduct involving the deliberate harassment or the intentional causing of alarm or distress to another to be reasonable. I invite the noble Earl to give some examples. Nor can I understand why it should be a defence, as subsection (2) provides, that the harassment is carried out inside a building in circumstances in which the victim is also inside the building. I find that provision puzzling. No doubt the noble Earl will be good enough to explain.
Finally, although the range of conduct covered by this new clause is no wider than that covered by the current Section 5, the prosecution will now have the burden of proving both the intent to cause harassment and that it was in fact caused. The only benefit to be derived from the imposition of those additional hurdles is that the offence is now punishable by imprisonment for a term not exceeding six months.
So the noble Earl's amendment covers broadly the same grounds as Section 5 of the Public Order Act 1986. It does not address other forms of harassment which in the other place the Government described as low level harassment, presumably because they found that too difficult. When, subsequently, I commend Amendment No. 159E to the Committee, I shall endeavour to explain how it fills the gaps from which this amendment suffers.
There is one other concern that we desire to express about this amendment. There is a risk that in one respect it may be inappropriately wide. It covers any kind of threatening or disorderly behaviour or abusive or insulting written words; and it could be a one-off incident because the new clause does not specify that the behaviour has to be repeated. Therefore, having criticised the amendment for its gaps, I now criticise it 1867 on the basis that, because it does not require any racial element to be involved, it is potentially a very wide-ranging offence couched in very general terms.
The concern has been expressed that an offence of such width and generality could be used disproportionately against young black people engaging in what the new clause calls "disorderly behaviour". I invite the noble Earl to respond to the perceived danger that the clause could be of only limited effectiveness in combating racial harassment on the one hand, but that on the other hand it runs the risk of inappropriately criminalising young black people—and indeed other young people—who are engaging in a one-off incident of low level disorder. I suggest that the amendment is subject to those criticisms and invite a detailed response. I imagine that it will not be opposed—not on the basis that half a loaf is better than no bread but rather on the basis that a crumb is better than no bread.
§ Lord Renfrew of Kaimsthorn
I support the new clause which seems to cover much useful ground. As my noble friend Lord Ferrers said, it increases the penalties for threatening, abusive or insulting words or behaviour. It also, usefully, no longer contains the provision found in Section 5 of the Public Order Act that:It is a defence for the accused to prove … that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress".The omission of that defence seems to me helpful and constructive.
I have no doubt that the noble Lord opposite made a number of valid points. However, some of them seemed directed more towards the merits of his own amendments rather than to the demerits of the new clause. I am not at all persuaded that it would be inappropriate for both to be accepted. I see merit in addressing the racial issue specifically, as we shall have the opportunity to do when we debate later amendments. But my noble friend made a good case in saying that often it is beneficial to treat disorderly behaviour which may be racially motivated on the basis that it is causing harassment, alarm or distress without necessarily always highlighting the racial hatred component.
There is only one element which excites my concern a little; it is, the requirement that:A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he … uses threatening, abusive or insulting words or behaviour.At the end of the sentence we see the words,thereby causing that or another person harassment, alarm or distress".I should have thought that if a person uses threatening, abusive or insulting words or behaviour and thereby causes another person harassment, alarm or distress, that would be sufficient grounds for the offence without it being necessary to demonstrate that there was in addition an "intent" to cause a person harassment, alarm or distress. The causing of that harassment, alarm or distress could well be regarded as sufficient without the need to demonstrate intent. I shall be interested therefore to hear my noble friend say a few extra words on that point. In general, the new clause is useful.
§ Lord Mishcon
Perhaps I can first apologise because I shall have to leave due to a prior important engagement and therefore will not be present when the other amendments are being moved on this important issue. Normally I would not have spoken unless I thought that I had something a little constructive to add to the debate.
A substantial number of the citizens of this country as they now are look to Parliament in both Houses—where we are considering this public order Bill—for assistance in their protection. I use the word "protection" advisedly. Members of the Committee will have noted with alarm and sadness the increase in the number of incidents, some of a serious nature, of racial incitement and insulting behaviour towards those of another colour. I hope therefore that no mere argument over words will stop a provision or, if necessary, a couple of provisions being included in the Bill to deal with the serious matter of racial incitement and insulting behaviour.
I agree entirely with the noble Lord, Lord Renfrew, that it is difficult when one reaches court to prove an intent. The burden in the clause is upon the prosecution to do so. One would have thought that a court was well able to deal with the facts before it where the prosecution in any event must prove that there has been threatening, abusive or insulting words or behaviour, or disorderly behaviour, or the display of the writing described in the amendment, and that it caused another person harassment, alarm or distress. Surely the onus is then properly placed upon the defendant to say that he had no intention of so doing, in spite of the fact that the prosecution proved that element. In that regard I respectfully agree with what was said.
Perhaps I may take up a point made by my noble friend Lord Irvine of Lairg; but I go further. When dealing with the defence the clause includes the words:It is a defence for the accused to prove… that his conduct was reasonable".I can foresee, as, no doubt, can other Members of the Committee, what may happen in a case with which we are all familiar. The opportunity is given to a defendant to say to the court, "My propaganda was reasonable". The court must listen to him in order to decide whether or not that plea succeeds. I envisage a case of writing on a wall in a white district and the writing on the wall says, "Wogs back home". In a case of that kind, if the amendment be accepted, the defendant will be allowed to say, "There is a political party in this country that is permitted quite lawfully to propagate the policy that we should repatriate black people who come over here, especially over a certain number." He may even quote the propaganda to the court and say, "I belong to that opinion and from my point of view it was completely reasonable, in a white district, to try and obtain support for that point of view. I am not on a platform—I could have been—on a street corner saying that that is my policy. I am not much of an orator and so I put my belief in short, sharp form by printing on the wall —I have not been accused of any crime connected with writing on a wall—the words, 'Wogs back home'. I am saying that I was reasonably putting forward a point of view. It was 1869 in a white district. I did not even think that anyone who was black would see it. Even if they did, am I not permitted to express that view?"
I ask the Minister and the Committee to concentrate on the amendments which deal with that scourge and to see to it that whatever comes out of the Bill eventually deals properly and practically with something which I know the Committee, like myself, hates.
§ 7 p.m.
§ Baroness Flather
While I welcome the intention behind the clause, I regret that it contains a lot of pitfalls. I hope that at the end of the debate the Minister will have another look at it.
The question of whether racial motive can be proved has been with us since the time of the second Race Relations Act. My memory does not go back to the first Race Relations Act but we have always been told that, if there is a specific law that relates to racial aspects, there will be difficulty in proving those aspects and, therefore, that we should not go down that road.
The time has come when we need to go down that road because there has been a great deal of anxiety about the increase in racially motivated crimes of all kinds, and particularly the increase in harassment. I am delighted that the Government have acknowledged that there is a gap, but the way in which they have chosen to fill that gap will, in my opinion, not work. If there is a need to address the problem of racial harassment, then that is what we should be doing. We should not be trying to create a catch-all situation which may catch nothing at all. I am very anxious that, while there are other forms of harassment that need to be dealt with, we should concentrate our resources on doing something about racial harassment.
Once of the major anxieties about the clause is the fact that there has to be an identifiable victim. One may well ask what is wrong with the requirement that there should be an identifiable victim. However, that victim has to go to court and give evidence. Many incidents of harassment take place on housing estates with the perpetrators living on the same estate as the victim. It is very frightening indeed for a victim to stand up in court, give evidence and then return to his home, with the person who has been fined, or even sent away for a short period, back again in his or her house and more reprisals likely to follow.
One of the problems is that the police can in no way protect those who give evidence from future harassment and violence. In this case it is absolutely essential. It is not a certain type of behaviour, it is not a behaviour which society will condemn, but there has to be an identifiable victim who gives evidence. That is a very serious defect in the clause which will cause an enormous amount of anxiety to those whom the clause appears to be designed to protect.
The noble Lord, Lord Irvine of Lairg, mentioned Clause 2, which is quite incomprehensible to me. In places like Tower Hamlets there have been a number of incidents that have taken place at the homes of people living on estates. It is possible that on some occasions the breaking down of a door might amount to an offence, but anything that happens after the door has 1870 been broken down will not be covered. It is an extremely odd situation; if you push past somebody who has opened the door to you and then you do whatever you wish in their home, if it is a woman or a child, it is not covered by the clause.
Clause 3 should also be looked at very carefully. Both Clauses 2 and 3 need to be reconsidered. If they are not reconsidered, we need a full explanation as to why the draftsmen chose the exclusions. I have not understood them and one or two people whom I relied upon to explain matters to me, have not understood them either.
We are living in a time when we have seen a great deal of violence and the kind of behaviour that is condemned by the clause on the continent of Europe. There has been a rise in that kind of behaviour. The last thing we want is for it to be imported into this country. We have been very well served so far and this is the moment to grasp the nettle and make sure that a very strong message goes out that we are not going to accept that sort of behaviour and that we are not going to accept racial harassment. That is what the clause should be doing: it should be making racial harassment a specific offence.
§ Lord Wigoder
We on these Benches wish to support the proposed clause, but before proceeding I should like to ask the noble Earl to intervene at once if the next point that I raise is based upon a misconception.
The Bill does not repeal Section 5 of the Public Order Act 1986. There is no conceivable reason why both clauses should continue to be part of the law because there are very few practical differences between the proposed new clause and Section 5 of the Public Order Act.
The existing Section 5 provides:A person is guilty of an offence if he (a) uses threatening, or abusive or insulting words or behaviour … or (b) displays any writing, sign or other visible representation … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".The offence may be committed in a public or a private place, except that it is no offence when it is displayed in certain circumstances by a person inside a dwelling and the other person is also inside that or another dwelling. It is a defence for the accused to show that he had no reason to believe there was any person within hearing or sight likely to be caused harassment. There is also the defence, about which there has been much comment, that the accused can prove that his conduct was reasonable. There is a power of arrest without warrant, etc.
Section 5 covers almost word for word the same matters as are covered by the proposed new clause. I can see only two significant differences, both of which I support. The first is that the proposed new clause creates an imprisonable offence. That is a new provision and it is one that we support. The second matter concerns a distinction rather than a difference. In the wording of the existing section of the Public Order Act a person is guilty of an offence if he uses certain words or behaviour within the hearing or sight of a person likely to be caused harassment, whereas the proposed new 1871 clause states that the person is guilty if he acts with intent to cause a person harassment and thereby causes that or another person harassment, alarm or distress.
There is very little distinction in practice between those two forms of words. I slightly prefer the wording in the proposed new clause as against the opinion expressed by the noble Lord, Lord Mishcon. It is desirable, particularly where the offence that is created is an imprisonable one, that there should have to be proved, as an ingredient of the offence, an intent to cause a person harassment, alarm or distress.
I would not wish to see a situation where a piece of disorderly behaviour which happens to cause some passing old lady of an exceedingly sensitive temperament some alarm or distress becomes an imprisonable offence and part of the Public Order Act. If we are going to treat the matter with the seriousness and gravity that it deserves, we should limit it to cases where there is an intent to cause some other person harassment, alarm or distress. Subject to that, it will be a very odd statute which in due course is consolidated. It will contain this new clause followed immediately by another clause almost exactly repetitious but providing for a somewhat lesser penalty.
§ Lord Annan
The previous speech was very interesting. But, if the Public Order Act has not been effective, does it not suggest that we need something much stronger than the amendment which the noble Earl has produced? I very much support the views of those who say that it is too much to expect "intent" to be proved. I very much hope that we shall strengthen this aspect in the debate to come.
§ Lord Monson
Although the new clause as a whole would seem to strike a fair and reasonable balance, like the noble Lord, Lord Irvine of Lairg, I think it goes a little too far in one respect. I refer of course to the absence of any requirement that the conduct in question should be persistent or even repeated. It could refer to a one-off incident of any kind, not involving race or anything remotely like it. Let us take, for example, the case of a motorist who is sitting in his car at a red traffic light with his handbrake on and is violently run into from behind by another motorist who has been chatting away and not looking where he was going. The innocent motorist gets out and uses insulting words, or possibly even abusive words, which undoubtedly will cause and are intended to cause distress—no doubt justifiable distress—to the guilty motorist. The noble Earl may well argue that in such an eventuality the magistrates might find that the conduct was reasonable under the circumstances and that would constitute a valid defence. Indeed they might, but, again, they might not. Magistrates can be very unpredictable, as we know from recent cases. I wonder whether when he comes to reply the noble Earl can reassure us on that point.
I too welcome the determination behind the amendment to tackle the problem of racial harassment and to tackle it in a way which creates a general offence and not a specific offence. However, I have some severe reservations about the wording of the 1872 amendment. First, I believe that it is worded in a way which will make it extremely hard to secure convictions. That is not only my opinion; it is clearly the opinion of the police, too. I refer to the use of the word "intent", which is a very hard test to pass without the qualification that the word has elsewhere in the Public Order Act. Elsewhere it is qualified by "likely" or "awareness". There is also the concept earlier in the Act of a person of reasonable firmness being likely to be harassed under those circumstances. Any of those concepts could well be imported into that first sentence
. Secondly, the amendment states,to cause a person harassment".One has to find a person who has caused harassment. One has to pick on an individual. The amendment later states,thereby causing that or another person harassment".One has to produce him and there has to be evidence. As my noble friend Lady Flather said, that will be extremely difficult to do in many cases. I do not think it is reasonable to ask that. Most of these offences are offences against the generality of the community. One should not have to find an individual to show that an act is offensive.
Subsection (3) imports the wording that is used in other parts of the Act. It basically says that what a person does in his own home is his own affair and should not constitute an offence under the Act. But it includes the rather strange provision which allows a person in one flat of a block of flats to stand inside his door and insult other people in common parts, or in another flat, or to play loud music, or to create a disturbance in his flat which causes harassment to his neighbours. It allows that to pass unpunished under the law, whereas harassing someone in the street is caught by the law. If my noble friend looks at the wording of the original Act he will find that that is an anomaly and should not be imported into this new offence. The new offence ought to cover offensive behaviour to someone else anywhere except within the confines of one person's dwelling.
My other concern echoes the other concern of the noble Lord, Lord Irvine, that in some way the clause runs too wide and that it offers policemen powers which may be interpreted in some sections of the community as a resurrection of the old sus laws. I well remember sus from my long years in Notting Hill Gate. It was not pleasant while it was happening. Those Members of the Committee who have read the Evening Standard today will have seen an amusing account of the assault on a clown who was performing to a crowd outside a pub in Richmond—a white clown to a white crowd. He was stopped from telling jokes by a policeman because the policeman said that he considered the jokes to be offensive to people, that he was causing a disturbance and that he intended to arrest him. The policeman had beer poured on his head, his car keys were thrown in the Thames and the incident ended up as a minor riot.
That was in Richmond. If similar things happened in somewhere like Brixton and action was taken under this Bill there might well be a feeling that there was quite unreasonable imposition being made on members of the black community. If we are to bring this kind of power 1873 into effect we need to put into place in advance arrangements to make sure that any such questionable use of the powers—and they are bound to occur: they occur every day just because policemen are human beings—should be quickly and very visibly dealt with
The powers are broad. It is clear to me from reading the amendment that a builder wolf-whistling from scaffolding could be caught and that a heckler at political meetings could be caught. All kinds of every-day minor acts of harassment could be caught and made into arrestable offences. The potential for the police to misuse the powers is there. It ought to be clear that if the powers are misused the matter will be dealt with. Otherwise we shall have upsets.
§ 7.15 p.m.
§ Lord Lester of Herne Hill
Nothing is more tedious than for non-lawyers to hear lawyers talking about the law, especially when the law can only be understood by looking at a statute that noble Lords will not have in front of them. I speak only to try to clarify what may be obscure in the debate. If I get it wrong, perhaps I may be forgiven because I do not claim to have great expertise in this area.
As I understand it, the position may be summarised in this way. The Law Commission, in an extremely lucid and convincing report on offences against public order, made proposals that Parliament enacted in the Public Order Act 1986. The Law Commission was very careful, as was Parliament, not to include over-broad offences against public order, essentially on civil libertarian grounds. As my noble friend Lord Wigoder indicated, Section 5 of the existing Act penalises harassment, alarm or distress, whether intentional or otherwise, and makes it a summary offence. What the new clause seeks to do is to create the further offence against public order of intentional harassment and to make it punishable by imprisonment as an indictable offence. That is a thoroughly worthwhile thing to do. But what it does not seek to do is to amend the different parts of the Public Order Act—Sections 17 and 18— dealing with incitement to racial hatred.
Therefore, with great respect to those of your Lordships who criticise this provision for not dealing with the serious social evil of incitement to racial hatred, it seems to me that the provision which we are now debating has nothing directly to do with that. That is why it is not tied to incitement to racial hatred or racial harassment. We shall come to that when we discuss the amendments tabled by the noble Lord, Lord Irvine, which are concerned with that separate area of the Public Order Act.
Therefore, for the reasons that were given by my noble friend Lord Wigoder, it seems to me that it is worth while building on Section 5, leaving that provision in place and creating this new offence, which does not threaten civil liberties in any sense because it rightly requires proof of guilty intent. It leaves entirely open the question that we shall come to later of what, if anything, to do about the separate social evil of incitement to racial hatred. I hope that what I have said clarifies rather than obscures.
§ Lord McIntosh of Haringey
I am not sure that it does. I am sure that the noble Lord, Lord Lester, is right in saying that this new clause has nothing to do with the racial hatred section of the Public Order Act 1986. I am not sure whether the Minister claimed in his speech—he certainly made this claim in a letter that he wrote to both me and the noble Lord—thatclause fulfils a commitment which was given by the Government during Report stage … in the Commons. We said that we would endeavour to bring forward a provision to deal more effectively with racial harassment, particularly where it is persistent".The provisions certainly do not do that, but it was claimed that that was the purpose of the clause.
I shall come to that in a few minutes because I think that the noble Lord, Lord McIntosh, is wrong. The clause deals with racial harassment. That is its purpose. However, it goes further than racial harassment. I was glad that my noble friend Lord Renfrew approved of the amendment and, indeed, that it has the approval of the noble Lords, Lord Wigoder and Lord Lester. That is encouraging because we do not always have their approval. I am grateful for it.
The noble Lord, Lord Lester, said that nothing is more boring for non-lawyers than listening to lawyers talking to lawyers about the law. I would say that nothing is more difficult than for non-lawyers to talk to lawyers about the law and sometimes to try to persuade them that they are not right. Fortunately, I shall not have to do that to the noble Lord this evening.
I make no bones about it. This is a very difficult area in which to try to legislate. The noble Lord, Lord Mishcon, said that he hoped that no mere arguments over words would stop an amendment to the Bill which would stop racial harassment. But the noble Lord is a perfectionist over words. He uses words and, as a lawyer, he diagnoses the use of words. He will know that the use of words is a very important thing in a statute. That is why we have tried very hard to find words that deal with the problem with which we are trying to deal and which will not automatically or unfortunately catch a whole lot of other cases which ought not to be caught.
My noble friend Lord Lucas said that he had reservations. If I may say so, I thought that he made a contradiction in terms. According to my noble friend, the police say that it would be hard to secure convictions under the terms of the amendment. My noble friend then said that the powers are too wide. It does not seem to me that the two go together.
My noble friend referred to the sus laws, as did the noble Lord, Lord Irvine, although he did not use those words. He said that there would be suspicion about a person's conduct and that the new offence that we are proposing involves conduct which is already a criminal offence under Section 5 of the Public Order Act. Where the elements of intent and a victim are present, a higher penalty would be available under the new offence.
A criminal offence can be committed by a person of any race or background. If a member of an ethnic minority commits the new offence, he will be liable to 1875 the same range of penalties as any other person. Nobody comes within the scope of this offence unless they are engaged in,threatening, abusive or insulting words or behaviour".If anyone indulges in such behaviour, they may commit an offence under the present Section 5 or the new clause. That applies equally to all races—and rightly so. It is difficult to get it both ways. Where there is an offence which is created by racial motivation, one runs into difficulties in proving that that was the motivation. It would be far more difficult to use such provisions. By avoiding a need to prove motivation, the offence is much easier to prosecute and the provisions would apply—rightly, in the Government's view—in all circumstances and to all groups. Therefore, I do not think that it is right to suggest that there is anything remotely akin to the sus laws in this provision.
Turning to motivation, I should like to refer to the important point that was made by my noble friend Lady Flather. It is here that I defer to the noble Lord, Lord Lester of Herne Hill, and others who are lawyers. There are three steps in deciding a case. Let us take the rather extreme example of murder. A person may murder somebody with a knife. You have to prove first that a person has been murdered. You then have to prove intent. One can prove intent by saying that the first man had a knife with him which he then put into the other man, so he must have meant to murder him. It is much more difficult to prove motivation. If a man murders his wife, was the motivation for the murder that he could not stand his wife, that he thought that his wife might be going off with somebody else or that he thought that his wife had put her hands into the till? Proving motivation is very much more difficult than proving intent. That is why we did not go down that route.
My noble friend Lady Flather referred to discrimination cases under the Race Relations Act. Proving discrimination requires a much lower test. An industrial tribunal can infer discrimination. That is very different from proving a racial motivation beyond reasonable doubt in a swifter criminal case.
There is also the important issue of victim support and housing policy where neighbours are involved. If a person is to be gaoled for six months, evidence of a victim is warranted. There are other problems affecting other criminal offences also.
Perhaps I may refer to the important point made by the noble Lord, Lord Wigoder. He said that the wording of the amendment is almost the same as the Public Order Act—he is quite right—and he wondered why it was necessary to have both provisions. I can answer that best by means of an example. Under the Public Order Act, if you use threatening, abusive or insulting words or display any such writing or so forth, you can be guilty of an offence. Let us imagine that a group of people is standing outside a pub making offensive racial remarks and a Pakistani walks by and hears those remarks. Those words would be very insulting to him and there would be a case to be answered under Section 5 of the Public Order Act because the person concerned heard the remarks which were being made in an offensive way. That is different from a case in which the same people 1876 who were outside the pub take a walk together, see a group of Pakistanis and deliberately make those offensive remarks with intent to upset and to cause distress. In the first case, there is a penalty of £1,000 for using threatening, abusive or insulting words or behaviour or disorderly behaviour. Under the amendment there would be a higher offence of being guilty,with intent to cause a person harassment, alarm or distress".That would carry a penalty of £5,000 and/or six months' imprisonment. So there is a difference, and the amendment provides a higher test.
§ Lord Wigoder
I understand what the noble Earl is saying and I am grateful to him for giving way. However, in the first case involving what might be called the lesser offence, it would not be an offence simply to use threatening, abusive or insulting words or behaviour. That would have to be done within the hearing or sight of a person who is likely to be caused harassment, alarm or distress. The distinction between a person deliberately using insulting language knowing that somebody who is present is likely to be offended by it and that person using insulting language with intent to offend the other person is very tenuous, is it not?
I bow to the noble Lord's greater experience. I believe that it is not. In the first instance that I gave, people could be making such insulting remarks, which happen to be heard by the person passing by, who is deeply offended. In the second instance, those people would be deliberately going out to make the offensive remarks in order to have the intention of harassing people. That is what is behind the whole amendment. Where people intend deliberately to cause offence, and perpetual offence, they should be caught. If they are caught they will receive a substantially increased penalty.
The noble Lord, Lord Irvine of Lairg, said that the range of conduct would not be covered by, for instance, playing music outside someone's house, making a din, daubing paint on the outside of houses or distributing pamphlets. My noble friend Lord Lucas also referred to the issue of making a noise. That is difficult to control or to write into law. Plenty of people find it most offensive to have next door to their house or flat someone who is playing loud music. It is deeply offensive and it can be irritating. However, it is quite difficult to say that that person should be caught under this clause. We can all see the type of reasons which the noble Lord has in mind for catching such people but it is difficult to write into statute that someone who makes a loud noise or plays loud music for a certain reason ought to be caught.
The same applies to what the noble Lord, Lord Irvine, called "making a din". Of course, the distributing of pamphlets could be covered by Part III of the Public Order Act or by the Malicious Communications Act. The noble Lord also referred to the reasonable defence. Of course, the reasonable defence for using abusive language could well be that someone was shouting abuse to someone else in order to alert him that someone was stealing his car.
It is difficult to deal with low-level harassment. The clause provides an effective penalty—for instance, by 1877 covering issues such as name calling, which previously could receive only a low fine. My noble friend Lady Flather and the noble Lord, Lord Irvine, referred to the difficulties of being inside a building. This is a public order Bill and it is difficult to make legislation which relates to public order operate inside a building. The building in question is a dwelling—in other words, a house—and it would be difficult to operate public order legislation inside someone's private dwelling—
§ Earl Russell
I am grateful to the noble Earl for giving way. Would it be possible to make the clause read, "lawfully inside the dwelling"?
I shall have to think about that. Of course, if one is in a building unlawfully, that in itself is an offence. My noble friend Lady Flather asked what happens if someone barges past you and into your house and then makes nasty and offensive remarks. Of course, he could be caught for assault for pushing into the person and gaining entry into the house—
§ Lord McIntosh of Haringey
It may be helpful to recall that when we were dealing with matters of trespass in earlier parts of the Bill we were able to define those on land—and presumably the same applies to a dwelling—as being the occupiers or those there at the invitation of the occupiers. Perhaps that would meet the point made by the noble Earl, Lord Russell.
I return to what I said at the beginning of my speech. This is a difficult area in which to legislate. We are endeavouring to legislate for the people who cause harassment, alarm or distress and who do it with intent and on more than one occasion.
The noble Lord, Lord McIntosh, said that this provision does not address racial harassment. It does and it goes further than racial harassment because it also refers to other forms of harassment. Perhaps I may address my answer to a point made by the noble Lord, Lord Irvine. We believe that racial harassment is awful, despicable and disgraceful. But so are other forms of harassment. I remember reading in the newspaper only the other day that some people had thrown stones at an elderly woman in a wheelchair. That is a most appalling form of harassment and it might be done because the person is in a wheelchair. That kind of harassment, done continuously and with intent to cause unhappiness, would be caught by this amendment.
I hope that Members of the Committee will agree that this amendment will improve the Bill, as have the noble Lords, Lord Wigoder and Lord Lester.
On Question, amendment agreed to.
§ Lord Annaly
I beg to move that the House do now resume. In doing so, perhaps I may suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.