§ 4.57 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)
My Lords, I beg to move that this Bill be now read a second time.
Crime and disorder cause fear and misery to individuals, families and communities across the country. We came into government pledged to relieve their distress with tough action against crime and against its causes. This Crime and Disorder Bill starts to deliver that promise.
533 This is the second of two major Home Office Bills introduced in your Lordships' House in the current Session. Together with the Human Rights Bill, it will help to safeguard rights and reinforce responsibilities for all. I pay full tribute to the work done by Home Office officials and advisers and parliamentary counsel in the production of the legislation.
The Bill contains a substantial package of measures, taking forward 12 manifesto commitments. I shall set out its six main themes: first, nipping youth crime in the bud; secondly, combating anti-social behaviour and promoting local action against crime and disorder; thirdly, tackling racist crime; fourthly, expediting justice; fifthly, protecting the public from sexual, violent and drug-misusing offenders; and sixthly, providing greater consistency and clarity in sentencing.
To tackle youth crime, the Bill contains a number of measures from the White Paper, No More Excuses, which I presented to the House on 27th November. These include six manifesto commitments. Youth justice measures appear in each of the Bill's five parts; for your Lordships' convenience I shall take all the youth justice measures together.
Part I of the Bill includes a new parenting order under which parents of offending or disorderly children may be required to attend guidance sessions and to comply with requirements specified by the court.
Provisions in Part I will also protect children under 10 from turning to crime or anti-social behaviour. The child safety order will enable a court to make requirements to ensure a child's care and protection and prevent further disorderly or would-be criminal behaviour. Local authorities may apply to establish local child curfew schemes to prevent unsupervised young children being out late at night, putting themselves and others at risk.
Part II of the Bill abolishes the presumption that children aged at least 10 but under 14 are doli incapax. It was of course the judgment of the House of Lords which confirmed in March 1995 the doctrine's currency in English law but recommended that Parliament should review it since it could produce inconsistent results.
Part III of the Bill establishes in law for the first time that the principal aim of the youth justice system is to prevent offending by children and young people. It also requires local authorities to ensure that appropriate youth justice services are available in their area and to establish inter-agency youth offending teams. A new youth justice board for England and Wales will help Ministers to set standards and will monitor performance across the youth justice system.
Part III of the Bill also provides for mandatory time limits for juvenile criminal cases and includes other measures which will help us to halve the time between arrest and sentence for persistent young offenders.
Part IV of the Bill abolishes cautioning for young offenders in favour of a new police reprimand and warning scheme. Youngsters given a final warning will normally participate in a community intervention programme to tackle the causes of their offending. New 534 community disposals—the reparation order and the action plan order—will encourage young offenders to face up to and make amends for the harm they have caused.
Part IV also establishes the detention and training order in place of the current sentences of detention in a young offender institution and the secure training order. The detention and training order will be served half in custody and half in the community with scope to shorten or extend the custodial element to encourage good progress. It will be available initially for 12 to 17 year-olds, with provision to extend it to 10 and 11 year-olds. Provisions in Part V of the Bill pave the way for implementing powers for courts to remand young people to local authority secure accommodation where this is necessary to protect the public.
The Bill's second theme takes forward manifesto commitments to protect communities from anti-social behaviour and to harness their efforts to tackle crime and disorder. As long ago as 1991 the Morgan Report recommended a key role for local authorities in crime prevention. The previous administration missed that opportunity—and every subsequent opportunity—to take advantage of the pivotal position of local authorities to bring together statutory and non-statutory agencies, and all local communities, to prevent and reduce crime.
To focus and enhance local efforts, Part I of the Bill places a joint responsibility on local authorities and the police to develop and implement local strategies to reduce crime and disorder. Strategies will be based on the results of local crime and disorder audits, conducted in consultation with local communities. Strategies will include objectives, and performance targets and will be published.
Local authorities will also, for the first time, be placed under a duty to consider the crime and disorder implications of all their policies. This will bring crime reduction considerations into the very heart of local decision-making.
Part I of the Bill also creates a new anti-social behaviour order which will prohibit behaviour which could cause harassment, alarm or distress. Breaching the terms of the order will be a criminal offence, with a maximum penalty for adults of up to five years' imprisonment. Anti-social behaviour orders will also be introduced in Scotland.
The third manifesto theme embodied in the Bill is protection against racist crime. These crimes are particularly odious, damaging, as they do, not just the victim but the very fabric of the multi-racial society in which we live. Part II of the Bill introduces new racially aggravated offences parallel to the main existing offences of violence and harassment under the Offences Against the Person Act 1861, the Public Order Act 1986 and the Protection from Harassment Act 1997. For each new offence, if the racial element is proved, significantly greater maximum penalties will be available. An offence will be held to be racially aggravated if either the offender demonstrates racial hostility towards the victim at or around the time of the offence, or the offence itself is motivated by racial hostility.
535 Clause 68 makes clear that, in general, racial aggravation in connection with an offence is an aggravating factor, meriting a stiffer sentence. This confirms in statute the 1995 judgment in the case of R. v. Ribbans, Duggan and Ridley.
For Scotland, the Bill will provide for a new offence of racially aggravated harassment and require that a proved racist element in any crime should be taken into account by the court when sentencing.
The Bill's fourth major theme is improving the speed and efficiency of the criminal justice system. Part III contains provisions springing from the Review of Delay in the Criminal Justice System, the Narey Review, published by the previous government. These include measures to improve case management, to bring cases promptly to court, and to provide for cases which must be tried in the Crown Court to be sent there immediately.
To reinforce these improved arrangements, we will introduce time limits for the prosecution of all criminal cases under the Prosecution of Offences Act 1985. The Bill will enable more exacting time limits to be set for cases involving juveniles than for those involving adults and for even tougher time limits for cases involving persistent juvenile offenders. It will also provide tighter criteria for granting extensions to prosecution time limits.
The Bill will also provide that where a person is charged with an offence and the prosecution time limit is exceeded, rather than this resulting in the defendant's acquittal, the proceedings will be stayed. Such prosecutions could be re-activated in exceptional circumstances on the authority of a very senior designated prosecutor.
To enhance the ability of courts to manage business efficiently and expeditiously, Clause 40 provides for a number of powers to be exercised by single justices. It further provides that the Lord Chancellor may, following local consultation, authorise clerks to the justices in a particular area to exercise these powers. It is the Government's intention that, initially, on a pilot basis clerks should be authorised in some areas to exercise these powers.
The Government will also be bringing forward amendments at Committee stage to allow the delegation of some functions to lay staff in the Crown Prosecution Service. These would enable members of the CPS who were not lawyers to present guilty plea cases at the magistrates' court.
Under provisions in Part III, the police and courts will be allowed to impose more demanding conditions on bailed defendants to reduce delays caused by defendants' failure to appear in court.
Other provisions in Part III will enable remand prisoners to take part in pre-trial hearings by means of a live television link. This will save the time and expense involved in escorting remand prisoners to court, and reduce the risk of prisoners absconding under escort.
The fifth aspect of the Bill is protection against sexual, violent and drug-misusing offenders. Almost nothing so alarms and incenses communities as the 536 threat posed by sex offenders, particularly those who would prey on children. Part I of the Bill provides for sex offender orders in England, Wales and Scotland. They will be extended to Northern Ireland under Clause 93. This order will forbid a known sex offender from specified conduct which poses a risk of serious harm. For example, a convicted paedophile might be barred from going near a school or playground. If an order is breached, a penalty of up to five years' imprisonment will be available. Orders will carry with them a requirement to be listed on the sex offenders register.
Part IV of the Bill provides for extended supervision after release for certain adult and juvenile violent and sex offenders. Under Clauses 46 and 47, convicted sex offenders will be liable to up to 10 years—and violent offenders up to five years—extended supervision after release. Released prisoners who break their licence conditions will be liable to recall by the Parole Board. Clauses 70 and 71 contain similar Scottish provisions for the extended supervision of sex and violent offenders.
A new drug treatment and testing order, as promised in the manifesto, will require the courts to take an active role in monitoring the progress of drug-misusing offenders who agree to undergo drug treatment as part of their sentence. The order will require regular drug testing. Failure to comply with the order's requirements will lead offenders back to court where they will face the possibility of imprisonment. Clauses 72 to 78 make similar provisions for Scotland.
The Bill's final theme is clarity and consistency in sentencing. Our current system benefits from judicial discretion to sentence in the light of all the circumstances of the individual case. The disadvantage of this approach is that sentencing can sometimes appear unpredictable and inconsistent. The Bill therefore places a duty on the Court of Appeal to consider producing sentencing guidelines for the main offences.
The noble and learned Lord, Lord Bingham of Cornhill, in his Police Foundation lecture earlier this year, acknowledged that providing guidance was an important function of the Court of Appeal Criminal Division. He noted our manifesto commitment and helpfully suggested that the Court of Appeal Criminal Division should rise to the challenge.
Court of Appeal guidelines will take account of the need for consistency and the need to secure public confidence in the criminal justice system. They will be informed by data on sentencing practice and on the relative effectiveness of different sentences in preventing re-offending. They will help sentencers to determine seriousness and to decide the weight to be given to an offender's previous offending history and response to previous sentences.
A new sentencing advisory panel will be appointed by the Lord Chancellor in consultation with the Home Secretary and the Lord Chief Justice. It will advise the Court of Appeal on sentencing, and may—at the request of the Home Secretary—suggest that the Court of Appeal produce guidelines for a given category of offence.
537 Our manifesto promised that courts should explain at the point of sentence what the sentence would mean in practice. After consultation with the noble and learned Lord, Lord Bingham of Cornhill, it has been agreed that this will be best achieved through a practice direction to sentencers rather than by primary legislation.
Part V contains other miscellaneous provisions, most importantly new home detention curfews for short-term prisoners. These will be available for that group of prisoners serving sentences of more than three months and up to four years who at present are automatically released once they have served half their sentence. Under Clause 82, selected prisoners will be able to serve up to the last two months of the custodial part of their sentence at a specified address under a curfew enforced by electronic tagging rather than in prison. That should provide a safer, managed transition between custody and life in the community. Any breach of the curfew conditions could result in immediate recall to custody.
Part V also provides that offenders recalled to prison for breaching their licence conditions, or for offending before the end of their original sentence, will be subject to a further period of supervision following their second release.
This major Bill lays the foundations for the Government's long term assault on crime and its causes. It should equip the criminal justice system better to serve and to protect the public and should improve the quality of life for many people across the country. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
§ 5.13 p.m.
§ Lord Henley
My Lords, I start by offering thanks to the noble Lord, Lord Williams of Mostyn, for that clear and commendably brief introduction to a Bill that is 96 clauses in length. I imagine that we will require the noble Lord to speak at much greater length over the days in Committee, on Report and Third Reading as we seek explanations on those parts of the Bill into which we believe the Government should go in some detail. I am sure that the noble Lord will understand that when, in due course, he sees the large number of amendments coming from these Benches, the Cross-Benches and—dare I say it?—from behind him.
From these Benches perhaps I can give what might be termed a qualified welcome to the Bill. That does not mean that we welcome all parts of it, nor that we believe that the Bill cannot be improved in many places. But we accept that it is building on our recent developments under the previous Home Secretary, my right honourable friend Mr. Michael Howard. I refer particularly to the consultation paper that my right honourable friend published in March of this year, Preventing Children Offending, and the other report, Review of Delay in the Criminal Justice System, that we published in February of this year. We welcome the new Home Secretary's acceptance of so much of his predecessor's work—an acceptance that can be seen through the great similarities between his White Paper, 538 No More Excuses—A New Approach To Tackling Youth Crime in England and Wales and our Green Paper. I do not at this stage wish to indulge in textual matters. But if noble Lords look at those two documents, certainly at the passages on the causes of youth crime and the key factors relating to criminality, remarkable similarities will be found.
I know that governments do not always welcome the wholehearted support of the Opposition. We saw a degree of embarrassment in the party opposite when it saw the support for the Government on some social security issues only last week. But I can assure the noble Lord that on this occasion we shall be taking a constructive approach to the Bill. We shall want to examine it in considerable detail and there is much that needs careful scrutiny in what is a long Bill. But we shall certainly offer support to those parts of the Bill that build on what we achieved over earlier years. We shall try to build on those parts that go so far, but could go further towards reducing crime, particularly youth crime.
We welcome the stress on youth crime. We believe that, despite the hype behind the launch of this Bill, the White Paper and the Statements in July and November, much more can be done. One thing that we can say about the Bill is: "Is that all?". It does not take us as far as the manifesto implied or, for that matter, what was implied again with the great deal of hype that I mentioned by the launch of the White Paper and the Bill itself. I suspect that we all want to see something more.
I wish to make one other opening remark and that is to offer my thanks not to the noble Lord, but to the business managers for securing a start in this House for such an important Bill. We know in all parts of the House that we shall experience enormous problems next year in getting through the vast legislative programme that has been set before us by this Government. The problems in this House next summer will be particularly severe when both devolution Bills finally emerge from another place—if they ever get there. We have now seen the Welsh Bill and we are waiting to see its counterpart for Scotland. I trust that the Government are not having any problems in the drafting of that Bill.
I say that in all seriousness as this Bill again has a considerable number of purely Scottish clauses. From these Benches my noble and learned friend Lord Mackay of Drumadoon may well have a word to say about those. Whether they will be affected by the Scottish Bill can only at present be a matter for conjecture. It is something that we would certainly wish to have resolved before the Bill goes to another place, just as we wish to see the Scottish devolution Bill before we make any further progress on the Human Rights Bill, which the Minister mentioned in his introduction.
I turn next to the Bill itself. We have a number of anxieties, most of which we wish to raise in detail at Committee stage and later. I am sure that the noble Lord will accept that. This afternoon I should like to concentrate on one or two specific points raised by the Bill.
I start by saying a little about the role of local authorities and their position in the fight against crime and disorder as dealt with by Part I of the Bill, Clauses 539 1 to 17. Obviously I speak in relation to England and Wales and I dare say that my noble and learned friend Lord Mackay may have something to say about the Scottish clauses in this regard later on.
Under Clause 1 we see that the districts, or in London the boroughs, will have new powers to make anti-social behaviour orders. We want to know why the districts have been chosen and what their specific expertise is as opposed, for example, to the counties which have both a social services and educational background. I speak now of the two-tier rather than the single-tier authorities. In the case of most districts, I dare say they will have very little relevant experience, other than the experience that comes from being a housing authority, but even that experience is one increasingly diluted as many of them divest themselves of their housing role and contract out their housing concerns.
I suggest that the counties might have been more appropriate for this role because of their educational and social services background. Obviously, I accept that there are arguments to the contrary. For example, one could argue that the districts are nearer the ground; they have, as I said, that housing background. However, I would certainly be very interested to hear the reasoning behind that particular choice.
Under Clause 1 the districts are given that role. When we move to Clause 5, we see that the counties are to be involved in the crime and disorder strategies. In Clause 5 they are to act in co-operation with the police authorities, the health authorities, the probation committees and anyone else prescribed by the Secretary of State. Again, one has to ask who it is that the Secretary of State might prescribe as appropriate to act with the counties.
Clause 6, if I have it right, then brings the districts back in, formulating strategies and implementing them. It may be that I have simply misunderstood what is going on. It might be much simpler than I believe, but there appears to be a recipe here for confusion and bureaucratic muddle, with unnecessary duplication involving both the counties and the districts in producing these strategies. I would certainly welcome the guidance and elucidation of the noble and learned Lord the Solicitor-General on this matter, as well as a more general justification for involving the local authorities in what is undoubtedly a very new role, for which many might he insufficiently prepared.
There is one further point I should like to address in relation to the anti-social behaviour orders. We see at Clause 1(1)(a) a definition of what is anti-social behaviour. As I understand it, that is something possibly already covered by the Public Order Act as amended. Again, I would welcome the views of the noble and learned Lord. There have been some concerns expressed about that particular definition of anti-social behaviour. The noble and learned Lord will have seen a letter from the Howard League for Penal Reform in The Times today. We have to be very clear that such an order cannot be used simply to penalise the eccentric and should be limited to very real anti-social behaviour. Having said that, I welcome the concept of such an 540 order, despite having some reservations concerning who seeks it—the local authority—as well as concerns about the definition.
In relation to the new duties being imposed on the local authorities, I must also ask something about cost. This will be dealt with in greater detail later on by my noble friend Baroness Anelay of St. Johns, but it appears at the moment that the proposals are to be cost free. I find this somewhat remarkable. The Government are proposing an immense bureaucratic structure crossing a range of agency boundaries and it seems strange that the Home Office believes that this can be done for nothing. That is certainly what the consultation paper said. There is also the danger that the Government are being over-prescriptive and that many local authorities which at present run perfectly successful local crime initiatives might find that they are forced to adopt things when they do not particularly wish to do so by the more mandatory approach being set out by the Government.
Moving on through parenting orders, which we promised in our own manifesto, and provisions which we broadly welcome, although they will require very careful scrutiny and might need tightening, I come to racially motivated offences and the provisions in the Bill from Clauses 22 to 26. I believe that we are all agreed in all parts of the House that this is an issue about which everyone is quite rightly concerned. Our position in this party is quite clear. Racism and incitement to racial hatred are wrong. We certainly legislated, as I believe the noble Lord made clear in his opening remarks, to deal with the problems of incitement to racial hatred. That was in the Public Order Act 1986. We made the publication of racially inflammatory material an arrestable offence in the Criminal Justice and Public Order Act 1994. That Act also created a new offence of intentional harassment, which allowed the courts and the police to deal adequately for the first time with that sort of behaviour.
This Bill proposes a new offence of racial harassment and a new crime of racially motivated violence. I accept that those are perfectly laudable aims. No one would dispute that. What I question is whether they are necessary in the Bill itself. I put it to the noble and learned Lord who will be winding up for the Government, am I not right in thinking that the courts already have sufficient power? Do we need to clutter up the statute book with extra and unnecessary words? The noble and learned Lord will be aware of the remarks of the former Lord Chief Justice, the late Lord Taylor of Gosforth. The noble Lord, Lord Williams of Mostyn, referred to them, but it may help if I quote exactly what he said:It cannot be too strongly emphasised by this court that where there is a racial element in an offence of violence, that is a gravely aggravating feature…it is perfectly possible for the court to deal with any offence of violence which has a proven racial element in it. in a way which makes clear that that aspect invests the offence with added gravity and therefore must be regarded as an aggravating feature". (Regina v. Ribbans, Duggan and Ridley, Court of Appeal, 15th November 1994).That important point was confirmed by the current Attorney-General, the right honourable John Morris QC MP, when he stated that: 541the Home Secretary has made proposals to introduce new offences of racial violence. In my professional experience, the Court of Appeal has long said that such matters should be taken into account by sentencing judges".—[Official Report, Commons, 6/11/97 col. 390.]That is an acceptance by the Attorney-General that this is not necessary. I do not want to accuse the Government of gesturism, particularly as we in no way wish to send out the wrong messages from Parliament by seeking to strike out this particular clause, but I ask whether it was necessary to put these matters in the Bill, and I believe it is right to ask what precisely they add to the current position.
I move on from that to one admirably brief part of the Bill, the abolition of doll incapax. That is a mere two lines in Clause 27. Would that all clauses could be as brief as that. I have only one very small question. I quite agree that the time has come for this rule to go, and this is probably a suitable time for it to go. However, is it one that has been affecting many people over the years? Has it been used much in defence? Has it been cluttering up the courts unnecessarily by allowing that particular line to be pursued? I believe it would be worth receiving an answer on that particular point.
Turning to Part III of the Bill, dealing with the criminal justice system and the provisions setting out the principal aim of the youth justice system, I do not believe that now would be the time to explore in detail Clauses 28 to 45 or Part IV that comes after that, dealing with the offenders in Clauses 46 to 69. We will have time enough for all that detail in the New Year.
Although there is material here to be welcomed, there are also a number of concerns. There are new burdens on the local authorities and there are the omissions. For example, we still have no commitment to introduce a mandatory minimum sentence for third-time burglars, although I understand that the Home Secretary said in July of last year that this will be considered in the light of the resources and the prison service's capacity. I would certainly welcome any further thoughts that the noble and learned Lord might have on this when he comes to wind up, but I suspect we will have a further indication that the Government do not believe that taking tough action against house burglary is a top priority. Could they not now agree to implement our proposals, as they did as regards the other parts of the Crime (Sentences) Act?
Perhaps I may add a word or two here about electronic tagging. We welcome the conversion of the Government to the merits, on occasion, of using this facility. The noble Lord will remember how strongly the Opposition opposed its introduction on civil liberties grounds with the Criminal Justice Bill in 1990. But we are concerned that the Government's welcome conversion is motivated merely by a desire to reduce prison numbers. We believe that prisoners should serve their sentences and that tagging should be available as an extra sentencing option for the courts and not merely as a means of securing early release.
542 We also have concerns about secure accommodation orders for young offenders. Again, I seem to remember the party opposite opposing such measures when we put them forward as merely leading to the creation of an academy of crime. Now I take it that the Government endorse them—certainly, in Clauses 80 and 81, that seems to be the case—and actually want to increase the risk of creating an academy of crime by increasing the age band of young offenders who would go in. I hope that I have misunderstood that. I would welcome an explanation from the noble Lord.
We have a number of concerns relating to the financial aspects of the Bill. I think that the Government have not properly set out just what the costs will be on the Government, on the police, on the probation service and on local authorities. My noble friend Lady Anelay will be dealing with that matter later on but I hope that the Government can reassure us as to just exactly what the costs will be. The Bill is necessarily rather vague.
There is much in the Bill that we welcome but it is clear that there is much that is merely presentational. There is much meat which we will invite the Committee to consider inserting to strengthen the Bill. As I said in my opening remarks about the Bill, "Is that all?" Just exactly what do Her Majesty's Government hope to achieve with this Bill? How will they hope to measure its success? What exactly are they promising will be the result of the Bill? Those are the big questions.
§ 5.32 p.m.
§ Lord Rodgers of Quarry Bank
My Lords, the Bill before us today for Second Reading is what the Home Secretary has called his flagship Bill. We were told about it during the debate on the gracious Speech and on numerous occasions until its publication a fortnight ago. We on these Benches are pleased to see it in your Lordships' House, though, like the noble Lord, Lord Henley, we recognise that it may occupy a good deal of time. There is a good deal that we welcome in the Bill and those parts will have the support of these Benches. But there is much else that deserves the most careful scrutiny. We shall play our part in that.
Before turning to the Bill itself, and perhaps as an overture to my further remarks, I wish to draw attention to a fascinating story in the Guardian newspaper last Thursday and ask the noble and learned Lord, Lord Falconer, to comment on it during the course of his closing remarks. The story in the Guardian refers to an aspect of the Bill. I quote:The Lord Chancellor, Lord Irvine, and the Home Secretary, Jack Straw, are engaged in an increasingly acrimonious and personal battle over barristers' near-monopoly of the criminal courts. The tone has deteriorated to the point that the Home Secretary sent an angry letter to the Lord Chancellor pointing out that Mr Straw represented the elected government, a reminder that Lord Irvine owes his place in cabinet to Tony Blair's patronage. The feud has become so intense the Prime Minister has been called in to adjudicate".Then, further on in what is really a long, rather enjoyable and entertaining story, the article says:Earlier this week, Mr Straw appeared to have come out on top but the Lord Chancellor has mounted a rearguard action and the issue remains deadlocked. Mr Straw had been hoping to announce the change next week, when the Crime and Disorder Bill is in the Commons"—543 the article has that wrong—for its second reading, but that has been put on hold. 'The ducks are not yet lined up', a government source sympathetic to Mr Straw said".To coin and readapt a phrase. "some duck", if it is referring to the noble and learned Lord the Lord Chancellor. I think all Members of this House will be deeply concerned if another member of the Government is attacking someone who is dear to us all. However, on the point of substance, I hope the noble and learned Lord who is to reply will tell us who is now on top. Will he give us a report from the front on how the war is getting on? If we were led to believe that there would be an announcement today, we have not had it yet, and perhaps the noble and learned Lord, Lord Falconer, is not going to give it to us either.
As for the Bill, what it will certainly not do is solve all the country's problems of crime and disorder. At most, it will make a modest impact on them. I would gently advise the Minister—and through him, the Home Secretary, perhaps less gently—not to claim too much in advance. In four or five years' time the Bill will not be judged by its good intentions but on the results which have flowed from it.
The Home Secretary—this needs to be said—is not in the mould of his predecessor, whose prime concern always seemed to be to impress his party conference and the tabloid press. But his real knowledge of—I refer now to Mr. Straw—and genuine concern about lawlessness as it affects ordinary people on housing estates in his own constituency may lead him into well-meaning remedies that simply will not work. Aspects of the Bill in relation to parenting orders and child curfews may come into that category.
Perhaps I may say in passing to the noble Lord, Lord Williams of Mostyn, that I hope the time will come when Ministers do not refer, as he did, to a Bill in terms of 12 manifesto commitments. It is a job of a government to introduce legislation which is justified on its merits. We all know or should recognise that many manifesto commitments are more foolish than wise. I am not suggesting that the Bill does not have merits—on the contrary—but to refer to it by reference to manifesto commitments is to get off on the wrong foot.
In the debate on the Address on 19th May I drew attention to the number of men and women then in prison. I said that 60,431 was an outrageous figure and that the Home Secretary should aim to get it below 50,000 by the end of this Parliament. But the prison population last Friday was 63,856 and, according to figures given to me by the noble Lord, Lord Williams of Mostyn, it is expected to rise to 71,800 by September 1999, with the average during 2001-2002 projected as 74,800. The alternative scenarios, as the Minister frankly admits, could put that figure very much higher. So instead of a prison population falling to 50,000 through the Government's first term, which might always be the last—who knows?—it is set to rise by at least 15,000.
This is a serious prognosis and many of the welcome provisions in the Bill seem trifling beside it. Prison takes men and women off the streets and to that extent, during 544 that period, reduces the level of offending. But it does so at a high cost to the taxpayer and diverts money away from crime prevention. Above all, as prisons become more and more overcrowded and education and rehabilitation are neglected, prison turns first-time inmates into hardened criminals.
The position of women in prison is particularly disturbing at the present time. Numbers have doubled in the past four years. Many have a drugs or alcohol problem, but only 7 per cent. receive any help while in prison. There are no programmes to break the cycle of deprivation that brings them there. So far as I am aware, there is no constructive thinking on the Government's part to deal with this problem. I hope that the Minister will recognise that we are bound to judge the Bill in the wider context of penal policy as a whole.
The Minister did not do so, so perhaps we should remind ourselves of the injunction first heard from the lips of the Prime Minister, then the Shadow Home Secretary, almost five years ago. He said, in a resonant phrase, that we should, "be tough on crime and the causes of crime". In illustration he referred to poor education, bad housing, lack of employment and broken families living in sub-standard conditions. He spoke of the social fabric being ripped apart and deplored the growth of inequality. There was much in that speech, and in similar speeches, with which I agree. They struck a sympathetic note. But I wish that I was more confident now that the causes of crime still loom large in the Government's programme. No doubt the Prime Minister would say that welfare-to-work is about reducing unemployment, which is about reducing crime, but I doubt whether even he would dare to claim that cutting benefits means cutting crime.
We now have a Social Exclusion Unit in the Cabinet Office, which is fine as far as it goes. But yet another Whitehall think-tank is no substitute for properly funded policies to meet the huge shortfall in social housing, to redeem dilapidated sink estates and to transform our inner cities. If the rich get richer and the poor get poorer through the next five years, there will be more crime on our streets and more disorder, despite the provisions of this Bill. If we are not prepared to pay to end poverty and mend the fabric of society, we shall do nothing to reduce the causes of crime.
In the debate on the Address, to which I have already referred, I also said that there was one expression in the gracious Speech which gave me pause, which was, "measures against anti-social behaviour". I found "anti-social behaviour" a dangerous catch-all description and not one that I readily associated with the spirit and language of a free society, and I am not reassured by the text of the Bill.
As the noble Lord, Lord Henley, mentioned, Clause 1 deals with anti-social behaviour orders and seeks, in the following terms, to define what it calls, "an anti-social manner". That is,a manner that caused or was likely to cause harassment, alarm or distress to two or more persons not of the same household as himself".545 As the Bill shows, behaviour of that kind can lead to an order made by a magistrate, on the application of a local authority or a chief police officer, prohibiting the defendant,from doing anything described in that order".Then, if the defendant continues to misbehave he can be imprisoned for up to six months on summary conviction and up to five years on indictment.
Let there be no doubt about it. We all know of the distress and misery caused to neighbours and others by thuggish behaviour, constant abuse, including racial abuse, and, for example, all-night parties, with the most vulnerable becoming victims. If local authorities and the police need more powers to deal with such cases and to deal with them quickly, the provisions of the Bill are very welcome.
But where are the limits? The behaviour of minorities, especially immigrants, is often claimed to be anti-social when it is in an hostile environment. Older people can find the high spirits and irreverence of the young intimidating. Working-class children straying into a nice neighbourhood can upset some householders by their presence and language. I would not trust every policeman fairly to invoke the provisions of Clause 1 if a manner "likely to cause harassment" is initially his to judge.
We must be careful that we are not introducing into statute wide powers which can be used against anyone who does not conform to a standard pattern of respectable behaviour or a lifestyle which is acceptable. I hope that it is not a device to take beggars and squeegee merchants off the streets, if that is still the Home Secretary's intention. Until the Bill is debated in Committee, I shall remain concerned about the disturbingly authoritarian overtones of "anti-social behaviour". We on these Benches shall certainly want to explore the safeguards against any interpretation that goes beyond the carefully considered circumstances that I am sure Ministers have in mind.
Having referred at some length to Clause 1, the House will be relieved to learn that I do not intend to go through the Bill clause by clause, although, like the noble Lord, Lord Henley, I am grateful to the Minister for so carefully taking us through it.
I wish to refer quickly to one or two other clauses in passing. I have already mentioned Clause 8 about parenting orders and Clauses 14 to 15 about child curfews. I would only add that we are doubtful about how effective compulsory court orders will be in respect of the former and believe that there are problems of enforcement as regards the latter—that is to say, child curfew.
We shall certainly need to be persuaded about Clause 27 and 10 year-olds being held to be as fully criminally responsible as adults. There are also serious objections to Clauses 80 and 81, which appear to turn their backs on the widely held view that sending juvenile defendants to penal establishments should end. As noble Lords will know, so often that is a step towards turning them into 546 adult criminals or making them the victims of bullying and intimidation, with suicide seen to be the only way out.
Throughout our scrutiny of these clauses and others, we shall cast doubt on the wisdom of all those provisions that threaten to send more people to prison when there are acceptable alternatives available. I hope that that will be the approach of Ministers, given the figures I referred to earlier. We shall also ask where the resources are to be found for many of the proposals that we support; for example, the crime and disorder strategies described in Clause 5 and subsequent clauses.
In so far as this Bill seeks to get to grips with real problems, sometimes in an innovative way, we shall support it from these Benches, but where it proves to be ill-thought through and cosmetic, we shall be among its sharpest critics.
§ 5.47 p.m.
The Lord Bishop of Leicester
My Lords, I believe that many people in the Church of England will generally welcome this Bill, and, perhaps more than most people, we are affected by it. As noble Lords are well aware, it is a tradition of the Church of England, through its parochial system, to maintain a presence in all parts of our land. For that reason, unlike other professional people, our clergy live where they work. With their families and congregations they share the life of their parishioners. We have, then, first-hand knowledge of life—yes, in the comfortable areas such as the suburbs, commuting villages and the country towns—but also we are very well aware of the pressures on those who live in the uncomfortable areas such as the deep, rural villages, the inner cities and the outer housing estates. It is on those outer housing estates that life can be made an utter misery through the activities of thoughtless, heartless or criminally-minded people and their children.
I was interested to see that a recent issue of Which? magazine devoted several pages to how to deal with problem neighbours. It took its middle-class readers through the problems of noise, building extensions, stray dogs, wayward children, troublesome trees, boundary disputes, unsightly gardens, parking difficulties and privacy. All of these can be, of course, a great nuisance. I, and other readers of the magazine, are now much better equipped to deal with them.
But the problems faced by many people on housing estates are of a quite different order. They can turn perfectly ordinary and respectable people into nervous wrecks as they encounter threats and violence from belligerent adults. It is often the youngsters, sometimes out of the control of their parents and bringing themselves up on the streets in peer groups, who cause the most intimidation. So, I for one am pleased that the Bill gives such close attention to the issue of youth crime and vandalism. Of course, we must take care not to over-react to problems that are caused simply by over-exuberant and naughty children. Nobody wants to subdue the energy and creativity of youth which can sometimes get them into trouble. The cut-backs in recent years in youth service funding and other family-oriented 547 projects have not helped. However, the Bill tackles the hard core of nastiness and crime, which is of a quite different order altogether.
I am fortunate to live in a city, one-quarter of the inhabitants of which are of Asian origin. They believe in the old-fashioned virtues of family life, hard work, and law and order, but even in our city we have pockets where life can be made very hard by anti-social people, young and old alike.
This is an enormous Bill and I should like to focus on just two clauses, Clauses 1 and 5. My friend the right reverend Prelate the Bishop of Hereford will refer to other clauses later. Clause 1 focuses on dealing with anti-social behaviour through the use of court orders. I should like us to start one stage further back, however. In our experience, the most productive way to bring social harmony is to work with the people themselves.
Just because they live there, clergy in several cities around the country have involved themselves in lessening social conflict by helping to set up mediation and conciliation services. Local residents, after a period of training, act as mediators. They sit down with willing neighbours and help them to solve their disputes or the disputes caused by their children. Of course, neighbours are not always willing to involve themselves in mediation but, where it is possible, it is far cheaper in time, money and aggravation than involving the police or the housing authorities. Such a service, set up on one estate in Leicester, has been such a success that it is now on offer throughout the city. I believe that we should not totally lose sight of the co-operation principle demonstrated in such mediation services even when social disputes or disorder have gone past the point where they can he solved by friendly neighbours.
That principle of mutual co-operation shows up in embryo in Clause 5, which is at the heart of the Bill, where a duty is put upon local authorities and the police to formulate (in partnership with multi-agency teams) local strategies to tackle crime and disorder. That is vital because no one agency has all the resources necessary.
Perhaps I may give your Lordships an example. One estate in Leicester is more run down than most. It is the kind of estate that is unlikely to benefit from City Challenge or an SRB bid because it is difficult to get commercial partners interested. It was first brought to my attention by a young community worker who was simply at his wits' end. He came to see me, accompanied by his local vicar. He did not say a word. He simply started to put photographs down on my study table. They showed one road with one-third of its houses boarded up. I asked why, when there was such a shortage of housing. "People simply can't survive here", he said, "It's too tough". So, I began to visit the estate. In the past year I have visited its schools, churches, housing department, advice centre and the police. I have heard hard stories on each visit and I have been impressed by the determination and the dedication of the staff.
Perhaps I may give your Lordships a flavour of that. The head teacher of one of the primary schools told me that 18 months ago there was a little money left in the school budget at the end of the year and she spent it, to 548 the pleasure of the children, on creating a garden—a green oasis in a dreary landscape. Every morning now on coming to school, she and some of her pupils replant the rose bushes which have been dug up and thrown around overnight by the local hooligans. "They will tire before we do", she said—and I hope that they do. People with that spirit will be those most helped by the provisions of this Bill.
Another visit that I made on that estate was to a family consisting of a young mum with two children and a Rastafarian husband. They told me in stark terms what life can be like if you stand up to some of the people in the neighbourhood. The man said, "I do it because I have two brothers who live just around the corner and we will have no nonsense but, mostly, people are too frightened".
However, changes are taking place there. The school, the police, the church, the housing department and a few of the residents, like our Rastafarian friends, are getting together. The police have agreed to establish a permanent presence. The housing department has set aside a house so that they can do so. The school, which has the trust and the confidence of the parents, is encouraging the parents to co-operate with the police in forming what would be called a "neighbourhood watch" in smarter areas of town. The clergy, as always. through their networks of care, are spreading the news that something better is being created.
That is a small example of the multi-agency teams which could emerge through the working of Clause 5, although I should like to see the necessity of involving voluntary agencies being given a clearer place in that clause or in the accompanying code of practice. Frankly, I do not think that it matters overmuch whether the police or the local authority is the lead player in such teams. What does matter is that the partners involve the statutory services, but they must also involve the voluntary agencies because they often have the confidence of the local people. It is absolutely vital that local residents are involved in any crime or disorder strategy for, without the involvement of the people themselves, such strategies are doomed to failure.
There is much to commend in the Bill. We look forward to engaging with its details in Committee. We in the Church would wish to be involved, as good partners, with others in helping to bring more peace and tranquillity to some of the most difficult parts of our land.
§ 5.58 p.m.
§ Lord Watson of Invergowrie
My Lords, although almost a month has passed since I was introduced into your Lordships' House, I still feel that something of the surreal persists whenever I enter this Chamber. It is quite unlike the other place: altogether more solemn, richer in both history and characters and containing, I need hardly say, a breadth and depth of experience—indeed, expertise, as is shown by the speakers' list for this debate—with which the other place simply cannot compete.
It was a memorable experience when I was introduced, as Hansard quaintly described it, 549between the Baroness Smith of Gilmorehill and the Baroness Ramsay of Cartvale".—[Official Report, 19/11/97; col. 5630.]—and what a secure and comforting place it was to be, a place to which I would happily return at any time.
In passing, perhaps I may record my congratulations to the noble Baroness, Lady Ramsay, on her recent appointment as a Government Whip. I am relieved that not even her association with me could prevent her foot gaining a grip on the first rung of the governmental ladder. I look forward to working under her firm but fair direction in the months ahead.
It is customary at such times to pay tribute to the support which new Peers receive from your Lordships' House in its broadest sense. In doing so, I trust it will not be thought that I am merely observing tradition. I am genuinely grateful for the warm welcome which I have received and for the friendly faces which always appear, as if from nowhere, whenever I stop in a corridor wondering, often quite literally, which way to turn. There is no difficulty in finding an answer to the question of the moment; the trick, as ever, is knowing which questions to ask!
The debate in which I make my first contribution in this Chamber is one of considerable importance. A society should be judged by the extent to which its citizens are able to live peacefully, pursuing their own interests without interference from others. This country has its fair share of social problems, which has led to it having an unfair share of prisoners. Indeed, we have the unenviable record of having the highest prison population per capita in the European Union.
The numbers have reached a level that places an intolerable strain on the system. New prisons are to be built, but without complementary measures the problem will return in a few years. Emphasis needs to be placed on prevention rather than cure. That means grasping the nettle of youth crime firmly and decisively. Statistics show not just that crime committed by young people has increased dramatically in the past decade but, more worryingly, that seven out of 10 young offenders re-offend after their release from prison. That suggests that prison is not serving its intended purpose, and if future generations are to have a reasonable expectation of life in an ordered and orderly society, young people must become the main focus of law and order legislation.
For that reason I welcome the legislation introduced today by my noble friend Lord Williams of Mostyn. The Bill is understandably wide-ranging and in the time available to me I shall concentrate on three main areas.
In eight years as the Member of Parliament for Glasgow Central I came face to face with the many serious social ills associated with inner-city living. Crime was endemic. It is, I believe, well established that the poor are the first victims of crime. There were certainly many poor people among my constituents. The most graphic example of that concerned drug abuse and the drug culture. These days such problems are not, sadly, restricted to our cities but it is there that the most serious effects are felt.
550 In 1995 there were 69 drug-related deaths in Glasgow. That figure fell to 55 in 1996, and I am relieved to learn that the present figure this year is 25a dramatic reduction. I hope that that trend can be sustained. I give credit to those people and agencies who put great effort and resources into fighting the scourge of drugs among young people.
Much of that reduction in fatalities has been due to the controversial methadone substitute programme which has been more successful than in other British cities. The range of services provided in Glasgow is among the most comprehensive anywhere in the world and is due to funding provided largely by the Scottish Office. That has had as its main benefit a 50 per cent. reduction in injecting drug users. I say in passing that there are 4,000 in the city, which is still a very large number. The police estimate that each injecting drug user commits the frightening number of 26 crimes each month to feed his or her habit. The consequent effect of crime in the city of Glasgow or anywhere else can be well illustrated by those figures.
It is for that reason that I regard the clauses relating to offenders dependent on drugs as being particularly welcome. However, I point out that drug treatment and testing will succeed only if accompanied by adequate resources to provide medical assistance and addiction counselling. I believe that the example of Glasgow underlines the need to underpin legislation with appropriate back-up services.
The Bill also deals with an evil that is now encountered with increasing regularity in this country: racism and racial attacks. Too often we in Britain take refuge in the apparently secure knowledge that racism is not a problem here. It is sad to say that that is simply not the case. I can speak of personal experiences in Glasgow, yet that city has a much smaller ethnic minority community than major cities in England, which consequently have greater problems. Earlier this year the New York-based group, Human Rights Watch, published a report which showed that Britain has one of the highest rates of racially motivated crime in Europe. As a result of that and other studies, there is absolutely no room for complacency.
I greatly welcome the inclusion in the Bill of clauses to allow judges to increase sentences to take account of a racist motive and I believe that it is long overdue. The new racially aggravated offences will in future attract higher sentences. In turn, that should have the effect of providing an incentive to police and prosecutors to search for a racial motive behind crimes in a manner that hitherto has been rare. I believe that racism is primarily the product of attitude, and attitudes take time to change. I am convinced that this measure will prove to be an important step in that process.
Finally, I should like to say something about anti-social behaviour. Of course, this can take many different forms, although the Bill defines it quite effectively. I disagree with the noble Lord. Lord Rodgers, who was dissatisfied with the definition. I believe that those who suffer anti-social behaviour do not need to have it defined; they know what it is and experience it daily. Legislation must be introduced 551 which tackles it effectively to reduce its incidence. Times without number I was faced with constituents who suffered the abject misery of neighbours who not only gave little thought to the effect of their antics on others but went much further, actually intimidating or threatening, often gratuitously.
Housing authorities in Scotland I particularly single out the cities of Dundee and Glasgow—have made determined efforts to evict the culprits rather than rehouse the victims. The Law Society of Scotland—a body that I know and for which I have considerable respect—has questioned whether the introduction of anti-social behaviour orders under this Bill is necessary. I believe that it is. Existing legislation proved inadequate to deal with many of the cases brought to me, with evictions taking an inordinate amount of time to achieve. Often the threat of a breach of the peace charge proved to be little disincentive to people who possibly already had a string of such convictions to their name.
I believe that local authorities need additional means to remove offending families, with the interests of the law-abiding community being given prime consideration at all times. In conjunction with the crime reduction strategies which the Bill requires councils to prepare with police forces, I believe that there is a genuine chance to bring about a dramatic improvement in the quality of life for people unfortunate enough to be subjected to anti-social behaviour.
This Bill forms a major plank in the Government's first term programme, and rightly so. I am pleased that it has been prioritised in such a way. There are many areas in which the law is in need of overhaul, but I believe that none will have greater impact on the day-to-day lives of our citizens. Such is the scope of the Bill that few, if any, will remain untouched by its provisions, because we all benefit from measures that reduce crime and its effects.
I thank your Lordships for the courtesy shown me this afternoon and look forward to participating fully in the work of this House.
§ 6.7 p.m.
§ Lord Ackner
My Lords, it is not only a privilege but a pleasure to rise immediately to congratulate the noble Lord, Lord Watson, on an admirable speech. It was vigorous, constructive and beautifully timed. The noble Lord brings to this House a wealth of experience in another place. He was a Parliamentary Commissioner for Administration between 1990 and 1995 and then a Member of the Public Accounts Committee. He demonstrates the breadth of his interests by being the author of a book entitled Rags to Riches. That is not an autobiography but the official history of Dundee United Football Club. We all know that it is very dear to his heart that a Scottish parliament should be established and succeed.
Clearly, a great deal of thought, research and imagination has gone into the preparation of this Bill. The Home Secretary is to be congratulated on emphasising preventive activity to reduce the incidence of crime and provide more options to deal with 552 offenders, or potential offenders, within the community. My main concern is whether the resources will be available to make reality of an important crime prevention Bill. I give the example to which the noble Lord, Lord Watson, referred: drug treatment. Research in the United States shows that every dollar spent on drug treatment programmes saves the taxpayer seven dollars during the programme and a year afterwards. Most of the savings result from a reduction in crime, while the remainder is due largely to the reduced demand on hospital services. The sharp reductions in offending during treatment mean that treatment programmes can pay for themselves in immediate savings to the criminal justice system.
However, the availability of drug treatment and rehabilitation services varies across this country. Much of the funding for such services is insecure and this has discouraged the development of residential services and put some day programmes at risk of closure. Where drug misusers can gain access to treatment and rehabilitation services, there are often long waiting lists. If this provision is to work it must be tackled with adequate resources.
I agree with the criticisms which the noble Lord, Lord Rodgers of Quarry Bank, made in relation to the existing disastrous prison situation, but I feel some degree of sympathy for the Home Secretary. For the past three or four years the public have been misled into thinking that prison really works. They must be re-educated. That is not easy. I do not expect that the press are keen on so doing because it will not sell more papers, it will sell fewer. I have suggested that there should be a Royal Commission or the resuscitation of the Council on Penal Policy to look in depth at why we send more people to prison than any other country in Europe and at what is the sensible way of dealing with punishment. That suggestion has yet to be accepted.
If the public can be persuaded that what is proposed in the Bill will succeed the present harsh climate in regard to sentencing may be softened and funds can perhaps be redirected from the costly and counter-productive excessive use of imprisonment, resulting in this current acute overcrowding.
There are two matters to which I wish to pay particular attention. The first relates to Clause 27, which deals with doli incapax. In England and Wales the age of criminal responsibility is set at 10 years. In Scotland, it is as low as eight. That means that below the age of 10 a child may not be arrested or prosecuted for a suspected criminal offence. The presumption of doli incapax then applies up to the age of 14. That presumption obliges the prosecution to prove not only that a child under 14 committed the criminal act, but also that he knew that the act was seriously wrong as opposed to being merely a naughty or mischievous activity. To prove that, the prosecution must put before the court evidence beyond the facts of the offence itself. The maxim recently quoted by the noble Lord, Lord Mishcon, in this House, res ipsa loquitur, has no application. Such evidence could include an admission in an interview with the police that the child knew what he was doing was 553 seriously wrong, or the testimony of a teacher or other adult concerning the child's mental capacity and appreciation.
Recently, we had a case in the Appellate Committee of which I was a member in which the point of the appeal was precisely the issue with which your Lordships are concerned. It was:Whether there continues to be a presumption that a child between the ages of 10 and 14 is doli incapax and, if so, whether that presumption can only be rebutted by clear positive evidence that he knew that his act was seriously wrong, such evidence not consisting merely in the evidence of the acts amounting to the offence itself".The facts were very simple. At about 3 p.m. on 8th June 1992 two policemen on mobile patrol saw a motor cycle parked in a private driveway of a house in Liverpool. Two boys were tampering with the motor cycle. The appellant was holding the handlebars while the other boy tried with a crowbar to force open the chain and padlock securing the motor cycle. The police approached on foot and both boys ran off. One policeman chased the appellant who then climbed over a wall at the rear of the property and was arrested by another policeman. The damage to the motor cycle included the detaching of the leads to the coil and the battery and the dislodging of the mounting. There was no evidence of any admission or statement by the appellant.
At the conclusion of the prosecution's case, the appellant's solicitor called no evidence, but submitted that the prosecution had not adduced sufficient evidence to prove that the appellant, who was born on 29th June 1979 and was therefore just under 13 years-old at the time of the alleged offence, had guilty knowledge and knew that what he was doing was seriously wrong as opposed to being merely naughty or mischievous.
The magistrates found the case proved, relying essentially on the fact that the boy had run away and also on the boy's age. The Divisional Court, consisting of Mr. Justice Laws and Lord Justice Mann, took an entirely different approach. Mr. Justice Laws said:Whatever may have been the position in an earlier age, when there was no system of universal compulsory education and when, perhaps, children did not grow up as quickly as they do nowadays, this presumption at the present time is a serious disservice to our law. It means that a child over 10 who commits an act of obvious dishonesty, or even grave violence, is to be acquitted unless the prosecution specifically prove by discrete evidence that he understands the obliquity of what he is doing. It is unreal and contrary to common sense; and it is no surprise to find that modem judges"—that is, Mr. Justice Forbes in a case in 1981 and Lord Justice Bingham, as he then was, in a case in 1992—have looked upon the rule with increasing unease and perhaps rank disapproval".The judge went on to say that he would hold that the presumption relied on by the defendant is no longer part of the law of England and he therefore dismissed the appeal.
Members of the Appellate Court, when the case come to us, were taken through a whole mass of history and authorities. There were reports by committees and White Papers from 1927 to 1990. In the last paper in 1990, Parliament decided that it did not wish to make 554 any change. However much we sympathised with Mr. Justice Laws, we therefore concluded that it would be usurping your Lordships' legislative function for us to have supported the decision made by the Divisional Court. We therefore allowed the appeal, answered the question affirmatively in both its aspects, but hoped that this House would look at the matter again, as it is now doing.
The only other matter to which I wish to draw attention is that of sentencing guidelines. When I came across the clause, it brought back a certain degree of nostalgia. The noble Earl, Lord Longford, may recall that in May 1990 he initiated a debate on sentencing levels. It was designed to attack the judges for handing out excessive sentences. The noble Earl was intent that he should not be robbed of the increased fun that occurs if you have a live judge present to be the subject matter of the criticism. So he sent a copy of his intended speech to the Lord Chancellor; the Lord Chancellor. as he hoped, sent it to the senior presiding judge of the Law Lords. It appears that matters involving volunteers are decided strictly on an alphabetical basis, and I was accordingly sent here.
In the course of my speech in relation to the proposal that there should be sentencing councils which would lay down guidelines to be followed by the courts, I said this:Over the years the Court of Appeal has laid down sentencing guidelines encompassing imprisonment in general-1 have already quoted one case—and offences in particular; namely, causing death by reckless driving, riot, violence at football matches, robbery, kidnapping, rape, unlawful sexual intercourse, buggery, gross indecency, living on the earnings of prostitutes, theft in breach of trust, benefits frauds, offences involving drugs and offences involving obscene publications. Very recently, in exercising the new powers … to increase inadequate sentences guidelines were … provided in the very difficult subject of incest".—[Official Report, 23/6/90; col. 990.]I pointed out that those guidelines were all published, they were contained in the Judicial Studies Board Handbook, and in fact I caused a copy to be put in your Lordships' Library.
I went on to say:I have never heard any public criticism by criminologists, by police officers or by welfare authorities of those guidelines",—and I observed that until there was any criticism of such guidelines I did not understand why they were not considered adequate.
It is not appreciated frequently enough that judges welcome and depend upon other people's views. When this debate took place I was then involved in the Appellate Committee with a case which had the distinction of being presided over by seven Law Lords instead of the usual five. We had the advantage of authorities from New Zealand, Canada, Australia and the United States, and learned articles from professors at home and abroad. I virtually ended my address by saying what I still say now: by all means let the judges have further and better assistance but do not interfere with their discretion.
§ 6.23 p.m.
§ Baroness Flather
My Lords, I will confine my brief 555 remarks to Clauses 22 to 25. I welcome the intention which is manifest in those clauses as three years ago I tried to do the same thing.
The most important thing is that we manage to achieve the end result for which these clauses are designed. That is the point that we shall have to test in Committee to ensure that we come to the right conclusion and stop this kind of behaviour, and make people realise that it is not acceptable to behave in this way in a civilised society.
It does no credit to this nation which prides itself on its fairness and its tolerance towards newcomers. Indeed, we are no longer newcomers—there are second and third generations—but, because we look different, we are still being treated as if we have another form to which we shall return. It is absolutely essential that public policy should reflect the displeasure with which society views that kind of behaviour. I congratulate the Home Secretary on attempting to put in this Bill the clear intent that this behaviour is not acceptable.
Three years ago, on a criminal justice Bill, I brought forward a much simpler amendment—and I see the noble and learned Lord, Lord Ackner, looking at me because, in the end, he supported me on that amendment. It was in two parts. One part simply provided that when racial motivation was proved in any crime before a court, then it should form an aggravating factor increasing the penalty automatically. The point was that instead of isolating different types of crimes for this particular purpose, we should have a blanket rule that any crime where racial motivation was proved in court would carry a higher penalty than other crimes.
The other part of that amendment, which was equally if not even more important, imposed a duty on the Crown Prosecution Service to disclose to the court any racial element—not motivation—that was contained in that particular crime. It has been experienced—and I hesitate to be precise because my information is anecdotal—that when there is plea bargaining and when a defendant pleads to a lesser charge, it is not necessarily the case that any hint of a racial element is put before the court. It is fudged over. I have had conversations with members of the Crown Prosecution Service and have been asked a very precise question: "Would you rather that the defendant got away or would you rather that that defendant was found guilty of a lesser offence?"
I have no hesitation in answering that question. It is for the court to decide whether or not a defendant is guilty. It is not for the Crown Prosecution Service to make a decision on its own. If it keeps fudging the racial element in various crimes, the courts will never become familiar—nor will the public—with the incidence of racial elements in different crimes, particularly in certain areas.
It is extremely important that the duty should be laid on the Crown Prosecution Service in all cases, whether or not there is a plea to a lesser offence, to put before the court any racial element in that crime so that that can be taken into account even when the defendant is pleading guilty. That has to be the way forward.
556 I am concerned that there will be certain types of situations which these clauses will not cover. Indeed, the Commission for Racial Equality is concerned about certain things which it feels will not be covered, particularly the offence of racial criminal damage. We have not had this Bill very long; we have not had an opportunity of getting together as a group, as we usually do, to look at these clauses in detail and to get proper advice to see if there are any elements in these clauses which need to be strengthened or changed.
Therefore, at this stage I flag up the point that I hope that at the end of the day, what we get is what we deserve.
We have waited long enough for this. Sadly, I was not helped by the noble and learned Lord the Lord Chancellor in my attempts to get the amendment through because he was pursuing the path of a special offence of racial violence which did not meet with much support from noble Lords. This is an essential area of concern. One cannot say that a racial crime is worse than an old lady being bashed up or a child being beaten up and so on. I do not wish your Lordships' House to start making moral judgments about whether one crime is worse than another. But a civilised society must necessarily look very seriously at those issues. I am grateful to the Home Secretary for putting those clauses in the Bill so that they can be examined properly and all agencies which have had the opportunity to think about those issues can get together and produce the right answers.
Perhaps I may just touch on a few other issues. In the other clauses there are some very heavy points made about guidance, counselling, explanations and complicated issues which will have to be put across to families and to children. I make a plea on behalf of people from ethnic minority groups who may have linguistic difficulties and so on. Quite often the proper financial resources are not provided for those needs to be met. If such complex matters are to come into force, it is clearly essential that the needs of all must be looked at on an equal basis. Some people should not be left out because they have certain other difficulties.
I congratulate the noble Lord, Lord Watson of Invergowrie, on his maiden speech. He really did echo my feelings in relation to the question of living free from fear. There are citizens in our society who do not live free from fear. I know that that is not confined to members of ethnic minorities but a number of such people do live in constant fear of attack. I thank the noble Lord for making that point.
On a slightly different point, I should say that the United Kingdom need not wear a hair shirt as regards the number of racial attacks and the way things are going in this country. For three-and-a-half years I have been your Lordships' representative on the Advisory Commission on Racism and Xenophobia in the European Union. The only reason that we are put forward as an example of bad things is that we are the only country in the European Union which dares to keep any records. Therefore, we know how many racial attacks have taken place because they have been logged; 557 no other country does so. Therefore, we are not here to wear a hair shirt in that regard. We are here to make things better.
§ 6.34 p.m.
§ The Lord Bishop of Hereford
My Lords, first, I add my own thanks and congratulations to the noble Lord, Lord Watson, on his maiden speech. It was extremely wise and helpful and drew eloquently on his constituency experience.
Like other noble Lords, I should like to express a general welcome to many aspects of the Bill. No one can be unaware of the devastating effect of crime on families and communities and not least on young people. Serious and persistent anti-social behaviour can be almost as damaging, as many previous speakers have shown us already. I warmly support the intention of the Bill to make the prevention of crime a central pillar of the youth justice system. I should like to return to that issue in a few moments.
I turn now to those provisions of the Bill which seem most helpful and encouraging and I shall then draw your Lordships' attention to some areas of concern for the churches and voluntary organisations most closely involved in crime prevention and the welfare of young people.
We welcome and applaud the principle set out in Clause 5 of setting up multi-agency teams to tackle crime and disorder. The right reverend Prelate the Bishop of Leicester has spoken of that from his own first-hand experience. We welcome also Clauses 22 to 26 which deal with racially-aggravated, sexual, violent and drug-dependent offences.
Similarly, we are extremely grateful for the provisions in Clauses 52 to 55 in relation to reparation orders which fall in line with the principles of restorative justice, which is a refreshingly positive, creative and relatively new element of the criminal justice system. And so also the action plan order in Clause 56 is greatly to be welcomed.
I believe that the provisions of Clauses 82 to 84 to allow early release from custody by means of electronic monitoring, now that the technology is reasonably satisfactory and reliable, is a thoroughly sensible way to reduce what has been referred to already—our desperately excessive prison population.
Those are substantial areas of support and affirmation of what this Bill seeks to achieve. If I spend a little longer on concerns and caveats, that is only because I believe that this Bill could be so much better than it is and could do even more to draw on the expertise and enthusiasm of many people who have much valuable experience in the field of crime prevention.
I very much wonder whether there is not a considerable risk of abuse of the anti-social behaviour orders for anyone over the age of 10, not least the possibility, in the last resort, of imprisonment. I share the doubts expressed by NACRO over the proposed criminal penalty of up to five years imprisonment which seems excessive and perhaps also doubtful in principle in view of the likely difficulty of obtaining proof to the 558 standard expected in a criminal case. If anti-social behaviour were to remain a civil offence, it could still lead to imprisonment of up to two years, and I believe it to be true that gaining a conviction would pose fewer difficulties.
I believe also that parenting orders are a doubtful method of coping with the problems which we face. By definition, they will come into effect, if they work at all, too late in the day to prevent young people being caught up in bad company and acquiring bad habits. They seem to be contrary to the spirit of partnership, which is at the heart of the Children Act. The threat of financial penalties on parents who are often already poor, inadequate and sometimes in despair is unlikely to achieve very much that is positive. Many of the parents involved will probably be single mothers. How will parenting orders be applied to absent fathers?
Clause 14 providing for a local curfew for children under the age of 10 adds nothing to the powers which are already available under the Children Act but are seldom used.
We have concerns about Clause 60, with its extension of the powers of courts to make detention and training orders for 12 year-olds and potentially for children even younger than that. As previous speakers have mentioned, there are very alarming provisions in Clauses 80 and 81—further sanctioning the locking up of children and withdrawing, by implication, the long-standing commitment to the removal of 15 and 16 year-olds from prison custody.
Those are detailed and specific reservations about what is proposed. But there is a fundamental underlying weakness of all this legislation: in practice it will be about containing the problem rather than preventing it, although the claim is made that the Bill is about prevention. It seems to ignore much excellent work which was done from 1983 onwards under the intermediate treatment programme through the voluntary sector. Sadly, that programme was granted only short-term funding and although it was remarkably successful and had an excellent track record, the tragedy is that countless good projects with families and young people run by, for example, the Children's Society, the NCH Action for Children, Save the Children and similar organisations have been curtailed or cancelled through lack of funds. Perhaps it is true that the inter-agency work and the action plans spelt out in this Bill will enable the work to be retrieved and expanded. I hope that is so, but it would be helpful if the noble Lord, Lord Williams, could give us assurances about that.
But behind these schemes, admirable though they are, and similar ones which I hope we shall see developing, remains the question: what actually works in terms of crime prevention? I am not sure that this Bill addresses that question. Fear of detection works, certainly; community policing works up to a point; zero tolerance perhaps with minor misdemeanours works, although that has seemed to run into trouble lately. Surveillance cameras work, although they tend simply to move the problem on somewhere else. But these measures, like the anti-social behaviour orders, serve only to contain the problem. They do not solve it or prevent it.
559 I believe the provisions in the Bill overestimate the rationality of criminals and delinquents and the almost complete removal of inhibition by alcohol or drugs. What we need to emphasise above all are good parenting, which goes back to early childhood, strong, non-criminal role models of responsible behaviour and, even more important than anything else, a network of community relationships which provide powerful informal sanctions against crime and anti-social behaviour. These have to be in place even before the excellent mediation work referred to by the right reverend Prelate the Bishop of Leicester can be effective.
The enormous variations in the incidence of crime between, say, two housing estates, outwardly similar in character, with similar degrees of unemployment, poverty and other measurable social indicators, are also clear proof that what governs the amount of crime is mainly the nature of the community. This is true of communities in our own country now. It explains the fact that much greater degrees of poverty and deprivation in, for example, the 1930s produced much less crime, and that in infinitely poorer countries than ours there is often hardly any criminal or anti-social activity, simply because the community networks are strong and healthy. So if we are in the business of crime prevention we must be in the business of community building. This is something which the Church Urban Fund has been doing with great success for more than 10 years. It is of course infinitely more cost-effective than resort to the criminal justice system, even if the proposals in the Bill succeed in the long run in reducing slightly the enormous cost of that system.
Next, I emphasise the crucial role of women in crime prevention. Mothers have the first and, sadly, often the only responsibility for bringing up young children. In some of our least favoured areas—Meadowell on Tyneside or Grimethorpe in South Yorkshire, for example—women have taken an impressive lead in organising support and providing excellent opportunities for young people. They themselves need encouragement and some modest professional support, such as that offered by the brilliantly successful but desperately underfunded Home Start organisation. These women probably do not need parenting orders and punitive fines when things do not work out well. I believe such measures may simply drive them further into social exclusion.
The Bill offers much that is encouraging, with some new and imaginative and creative thinking, but I believe it could have built more strongly on established good practice, which cries out for more adequate funding and more active encouragement.
I end by painting two pictures which are vividly in my mind. About 10 years ago I had from time to time to visit a youth offenders institution at Portland. It was one of the saddest and bleakest things I have ever done in my ministry. There were young people from broken homes with broken lives, and despite the best efforts of some of the staff, the chaplains and the social workers, the prospects for those young people were grim. It was 560 eloquent testimony to the desperately destructive effect of incarcerating young people. Do we really want more of that?
The second picture came about last Saturday, when I went to a community day in one of the areas of the city of Hereford which is, to put it mildly, not among the more affluent. It was a brilliant day, and the event was held in one of the junior schools. The schoolchildren had made an enormous scale model of their part of the city, with streets, model buildings and everything else set out. All sorts of organisations were there: the schools, the local authority, the churches, the volunteer bureaux and the disability organisations. There was lots going on. There was plenty of fun. The police were there, one police officer dressed as Father Christmas, and another policeman was saying "There are some pretty hot spots in this place". That exercise in community building did more, I believe, and will continue to do more to prevent crime than perhaps anything in this Bill, good though it may he.
§ 6.46 p.m.
§ Lord Bingham of Cornhill
My Lords. I should like to join previous speakers in offering congratulations to the noble Lord, Lord Watson of Invergowrie, on his most interesting speech. I should also like to express my gratitude to the noble Lord, Lord Williams of Mostyn, for his lucid and comprehensive introduction of the six main themes of the Bill. I think these are themes which address acute contemporary concerns, to which the Bill offers imaginative and well designed solutions. The fair operation of these procedures will, I think, call for very great judgment and restraint on the part of those seeking, making and enforcing some of these orders, and also considerable precision in drafting the orders if they are to be enforceable. I am sure that all those who are concerned in administering justice will wish to see the broad objectives of these proposals achieved and will do all they can to promote their achievement.
May I say a word about two specific components of the Bill? The first concerns the sentencing clauses, Clauses 66 and 67. I am particularly grateful to the Home Secretary for consulting me in some detail on these clauses. As he knows, the final drafting is not 100 per cent. to my taste. I have reservations about the reference to cost in Clause 66(3)(c), not because cost is unimportant or irrelevant but because the courts must strive to find the right penalty even if it is expensive, rather than opting for the wrong penalty even though it is cheap.
I am, however, broadly content with these provisions. As the noble and learned Lord, Lord Ackner, has pointed out, the setting of sentencing guidelines is not a novel function to the Court of Appeal (Criminal Division) which over many years has been providing guidance to the lower courts. The only fault in the list given by the noble and learned Lord, Lord Ackner, of offences governed by guidelines is that it was a quotation from his speech in 1990, and many more offences are now the subject of such guidelines. Within the last few months burglary and manslaughter 561 involving the use of knives have been the subject of such decisions, and firearms offences as recently as this morning.
Guidelines of course have on occasion been reconsidered and revised in the light of changing conditions and new maximum penalties enacted by Parliament. But these provisions will, I think, enable the Court of Appeal to perform its task with the benefit of expert advice from the sentencing advisory panel and, I very much hope, reliable independent research. With that assistance the proposals will, I hope, enable us to build on existing practice and give guidance with greater confidence and authority.
Secondly, I wish to say a few words about the proposal in Clause 40 of the Bill to allow certain powers of a magistrates' court to be exercised by a single justice of the peace or, subject to the making of rules, by a justices' clerk. I preface my observations by saying three things. First, I am an almost unqualified admirer of the magistracy, and particularly because of their numbers and their enormous contribution to our system of justice, the lay magistracy.
Secondly, I am a close friend and strong supporter of justices' clerks, the maintenance of whose role is, in my judgment, essential to the survival of the lay magistracy. Thirdly, I have no objection to the powers of magistrates' courts being exercised by a single lay justice. Indeed, when I say I have no objection I am being somewhat grudging. I fully realise the need for greater expedition in magistrates' courts. I am vividly aware of the adjournment culture which seems to have afflicted those courts in particular. I recognise the high desirability of a Bench, once assembled, being able to get on and try the case. I see good sense in allowing a single justice to exercise the powers of the court. But I regard it as vital that a clear and categorical distinction be preserved between the role of the justice as judicial decision maker and the role of the justices' clerk as objective, professional, legal adviser and, on occasion, administrator.
There are some powers listed in Clause 40(1) which can quite unobjectionably be exercised by a justices' clerk, for example,and, probably,
- "(b) to mark an information as withdrawn;
- "(c) to dismiss an information…where no evidence is offered by the prosecution"These are formal, administrative acts; they are not judicial acts. But some powers listed in the clause are quite different, for example in (f) to require,
- "(j) to extend, with the consent of the accused, a custody time limit".a medical report and, for that purpose, to remand the accused in custody or on bail".To send a defendant to prison is a judicial act; it is not an order which anyone not exercising judicial authority should make, and it is certainly not a matter of administration. There should be no power to make rules which would enable a justices' clerk to make such an order. The same, I suggest, is true of (e), to require, 562a pre-sentence report following a plea of guilty and, for that purpose, to give the probation service an indication of the seriousness of the offence".That is, if power were delegated and rules were made, the justices' clerk could tell the Probation Service whether custody or community service or probation was the likely outcome. That is not an appropriate function for anyone but the judicial decision maker and could be gravely embarrassing to the court. I take as my last example,(o) to give, vary or revoke orders for separate or joint trials in the case of two or more accused or two or more informations".Those are significant discretionary decisions as to whether two or more offenders or two or more offences can be tried together. The making of such decisions is a regular ground of appeal in the higher courts, the complaint being that unjust decisions have been made. It is, again, not a decision for anyone not exercising judicial power. The terms of the subsection permit an order previously made, perhaps by a justice or justices, to be varied or revoked, if rules were made and this power were delegated, by the justices' clerk. That, I suggest is not acceptable.
I shall not weary your Lordships by examining all these provisions. I make it clear that I have no objection to the exercise of these powers by a single justice. But I object to the possibility that some of these powers might by rule be exercised by the justices' clerk because such a rule would erode the fundamental distinction between the justices and the justices' legal adviser and in the longer term—as I fear—signal the demise of the lay magistracy which would be an irreparable loss.
If the justices' clerk were to be entrusted with these important decisions and judgments, judicial in character, the time would inevitably come when people would reasonably ask whether he or she should not be left to get on and try the whole case. That is a result which might be welcome to some; I would not be among that number. Most of your Lordships would not, I think, be among that number either, and nor would most of those with knowledge of how justice is administered at a local level up and down the country. I am sorry that I appear to devote my time to a criticism of the Bill which in general I welcome but I feel concern about this power. I hope that the Government, valuing the magistracy as of course I am sure they do, will think again about this provision and remove what I believe to be a potential blemish.
§ 6.57 p.m.
§ The Earl of Mar and Kellie
My Lords, I, too, congratulate the noble Lord, Lord Watson of Invergowrie, on his excellent maiden speech. We shared a radio programme on the day of his introduction at the unparliamentary hour of 7.45 a.m. for the benefit of "Radio Scotland" listeners. The noble Lord, Lord Watson, reminded the House that the Bill applies in Scotland and, I would add, despite being given the title of an English and Welsh Bill. I shall say more about that anon.
The Bill sets out to clarify many areas of the law in Scotland by introducing specific names for existing offences, both civil and criminal. Although the 563 clarification is good presentation and raises public awareness, I wonder whether it introduces many new substantive points of law.
In Clause 18 the anti-social behaviour orders are clearly designed to deal with neighbours from Hell and, I hope, among others, off-road motor cyclists driving on legally asserted public footpaths. At present, if they dare, people can report such activities to the police, or to the procurator fiscal, as a breach of the peace at least, unless there has been a more specific offence committed. Perhaps what is new is that the anti-social behaviour order is more forward looking than the common law charge of a breach of the peace. As a civil law matter it attempts to control the future behaviour of the individual, whereas the prosecution of a breach of the peace looks back only and leaves the offender to draw his own conclusions if he wishes.
It is, of course, already possible to control future behaviour by seeking an interdict from the sheriff court. I see some merit in promoting this in a repackaged form. If it becomes popular—and by that I mean that people will come forward with sufficient evidence—the local authorities will have to set up a new section to deal with these orders. It falls to the local authorities alone in Scotland to promote these orders in the sheriff court, presumably having filtered them to reduce the volume and promote only the most serious.
It seems to me that there will be a need for local authorities to set up conciliation services to deal with less serious complaints and frustrations. These already exist in Scotland in the limited form of "diversion from prosecution" projects. SACRO. for example, runs two community mediation projects which act to resolve disputes between neighbours in conflict—I believe that is the polite term for neighbours from Hell—and three mediation and reparation schemes which accept referrals from the procurator fiscal. They act to achieve a mediated settlement between victims and accused, some of whom are neighbours in conflict. For those who must sort out the complaints, the distinction between a clash of lifestyles or personalities, and serious anti-social behaviour, will need to be clearly drawn.
I am not against these orders, but I do wonder whether local authorities are yet facing up to a task which is not a current responsibility and for which there are unknown costs, particularly in gathering evidence to the appropriate civil standard. In practice, distressed neighbours may still find it quicker to report their difficult neighbours to the police for a breach of the peace. The response time may be shorter than that of the local authority.
I turn to the proposed sex offender orders in Clause 19, which were, until very recently, trailed as community protection orders. Like the anti-social behaviour order, the sex offender order is a civil remedy, and is similarly forward-looking. It clarifies that it is possible to ban sex offenders from, for example, hanging around near children's playgrounds, schools or anywhere they may appear to pose a threat to potential victims. It will be applied for, following complaints, by the local authority and/or the police in the sheriff court in order to prevent specific activities by 564 sex offenders, convicted or cautioned. Of course, that can already be done by application for an interdict: but that is a rather theoretical matter for most citizens. The local authority or the police will be able to act on receipt of sufficient evidence of the appropriate standard and promote the order. It is already possible to curtail specific behaviour within the conditions of a probation order.
There are two spin-offs which may not have been intended and which may not be permissible or even constitutional. The first is the appearance of the police in the civil court, promoting the order and using civil standards of proof. I wonder whether the procurator fiscal may have a role here. The second spin-off is the appearance of the procurator fiscal in the civil court for the prosecution of a breach of a sex offender order. While the order is a civil matter, the breach is a criminal matter. My final comments on these two orders have to be that they are both unsupervised orders: and it is not clear whether the subjects have to give their consent before the order is made.
Turning to Clause 72, the drug treatment and testing orders are a sharpening up of an existing remedy. The usual approach has been to place the offender on probation and make an additional condition of the order requiring him or her to undertake treatment at a named treatment centre. The proposed order improves on that remedy in the respect that the subject of the order is under far greater scrutiny, both by being tested on a regular basis and by having to appear in the dock in open court for monthly reviews. Those two additions will certainly test the sincerity of the offender in his desire to overcome the drug-taking habit. I am pleased to see that, when the offender is progressing well, the monthly review can be undertaken by the sheriff in chambers without the offender having to he present.
There will be a clear need for sufficient resources to be made available to fulfil the orders—in social work, health and housing provision. I am concerned that the level of supervision offered by the local authority will be minimal, and will be restricted by statute to the needs of reporting for monthly reviews, reporting any failure of compliance, and the need for variation or revocation of the order. Presumably the supervisor will be allowed to discuss other relevant issues but cannot insist on doing so.
Clause 70, dealing with the extension of post-release supervision of violent and sex offenders, is to be welcomed. The provision will of course be a further burden on Scottish local authorities, but then they are already tied into the post-conviction lives, certainly of sex offenders. The response of those offenders to the imposition of extended supervision will be important. There will be breach proceedings, and some will return to prison. It is important that they have post-release supervision in order seriously to resettle them into the community. Will their extended supervision extend beyond the period after they have been returned to prison?
I now turn to the proposed tackling of racial crime under the provisions in Clauses 26 and 79. To someone trying to talk up Scotland as a tolerant, multi-cultural 565 society, these clauses present a challenge. I am pleased that the approach taken is that of adding a racial harassment or motivation dimension to a substantive charge. This "add on" approach is preferable to a racially specific charge. The court will decide the extent of the racial aggravation, on top of the evidence of the basic offence.
The Bill recognises as an offence—to make a slightly more light-hearted remark, but one apposite to the development of our constitution—calling someone, for example, "an English whatsit". It is quite right that that should be regarded as an offence. However, I note that the Bill does not recognise as an offence calling someone an "upper-class twit". Why is it that class discrimination always left out in these contexts?
Finally—and now I wish to "get quite heavy"—after reviewing a Bill which I seem to approve, I must come to the matters of which I disapprove. The Bill is, on the face of it, an English and Welsh criminal justice Bill. But it contains substantial alterations to the law of Scotland. Those changes have not been given much publicity in Scotland. There was a brief consultation period, but the legislation cannot be said to have been well trailed in Scotland. Why was this Bill not promoted as a criminal justice (Scotland) Bill? Should not the lesson of 11th September have been heeded? The principal beneficiary of devolution/home rule is the Scots law. Should not a moratorium on altering the law of Scotland have been implemented until the decisively chosen Scottish parliament is in place? In lighter vein, I ask: should that be seen as an aggravation? In even lighter vein: should the Government be made the subject of a "bad government order". Perhaps the remedy would be an "action plan order", requiring that a Scottish Select Committee of this House take evidence in Scotland. (That is a serious point.) That action would alert the people of Scotland to what was happening to the law of Scotland.
§ 7.9 p.m.
§ Lord Hardy of Wath
My Lords, a number of noble Lords have almost damned the Bill by faint praise. My praise is almost unqualified. It is a matter on which this Government should be congratulated. They inherited serious problems. In many parts of the country dime, disorder and lawlessness had reached such proportions that the urgency with which this Government have approached the matter was certainly needed.
Crime has risen enormously, but the increase in unrecorded crime in parts of the country where crime has risen most sharply is astonishing. I was reminded of it only this morning because my wife told me that my gardener's shed had been broken into during the night. Fortunately, I was aware that gardeners' sheds in areas like mine have long been the target of burglars so there was nothing in it for the thief to take.
Twenty years ago in an area like mine I would unhesitatingly have gone to the police station to report the astonishing crime and it would have been taken seriously. Now the police are swamped and I would not 566 dream of informing them of the offence. Many parts of the country are like this. The nature of our society has been disfigured.
I have to look no further than my local newspapers. Two weekly newspapers serve my area. Over the past few years the editorial content of those newspapers has been dominated by reports of crime. In last Friday's edition, an 85 year-old widow was burgled. She encountered the burglar, suffered an attack and had to he rushed into intensive care, where she died. An 81 year-old widow was burgled. She had £150 and it went. The police did not catch the burglar, but they had a whip-round in the police station so that the old lady did not lose the money.
A landlady was drenched in beer and five joyriders were arrested. It was found that they had committed a large number of crimes. Two young men were mugged. Vehicles were stolen, drugs were found in houses in an area which 25 years ago would never have encountered the drug problem. It exists now in large measure.
The scale of offences, lawlessness and horror is acute and has risen dramatically. On Sunday a friend of mine told me about her parents who live in a pleasant bungalow with a warden scheme. A gang of youths is desperately terrorising them night after night. When one of her neighbours was gravely ill in his bedroom a thief was in the living room taking the television set. That kind of thing is now common in areas like mine and I am glad that the Government have decided to tackle the matter.
I am also pleased that the Government have begun to recognise rather more profoundly than the previous government did that local authorities have a major role to play. The combination of joint work with local authorities and the police can be helpful. I entirely accept the point made by the right reverend Prelate the Bishop of Leicester that voluntary organisations should be brought into the mechanisms. I wish to make one suggestion: once the bodies are set up, they ought to be monitored and the results published. It would perhaps establish a competitive situation, because local authorities and police forces would not wish to be at the bottom of the league. They would seek to be successful.
We must have more resources for the youth service. A number of noble Lords made the point that public youth services have been operating on a shoestring for a long time. I referred to my area and no doubt I shall do so again in your Lordships' House. When I entered the House of Commons in 1970 there was no unemployment problem, certainly not for young men. There is now.
Reference was made to the Children's Society. One of the saddest experiences I had in my last years in the House of Commons was when the Children's Society brought to London some 14 and 15 year-old children from a difficult estate in my constituency. I had them in Westminster for a little while and it was a distressing experience. They were 14 and 15 year-old boys and girls, the kind whom the noble Lord, Lord Henley, might have met during his numerous visits to my area. They attended a good school; they were not particularly academic although they were not stupid. I made the 567 point in an earlier debate that they were the kind of boys who would have worked in the colliery, the steelworks, the glassworks and the engineering works. Unfortunately, however, the glassworks have closed, the engineering works have closed, the collieries have closed. As the noble Lord, Lord Henley, will recall, the steelworks are about the most successful in Europe but they employ only about 10 to 15 per cent. of the people who were employed 30 or 40 years ago. Idle hands make mischief. What we need to do above all is to make sure that those hands are not idle.
The difficulty for those boys and girls whom I met is that they saw no economic prospects. They saw little in the way of challenge; they had little in the way of resources. So when they got fed up with watching television at home—which is not difficult—all they could do was to gather on street corners. The moment two or three young people gather together on a street corner, everyone over the age of 40—perhaps with increasing reason nowadays—starts wondering how to get them moved on because the group is perceived as a threat. The youth clubs should be opened.
More than that, we need to encourage people to give service to youth organisations. In my area we have a long-established Scout and Guide movement which helps hundreds of young people. What about the hundreds and hundreds more who are not involved at all, whose parents perhaps do not want them to be involved, do not care whether they are involved, or are fearful that if they are involved it might lead to costs which they can ill afford? We do not esteem the youth organisations adequately.
I hope that the former Minister will not take this as a personal criticism because it is directed at the Minister who preceded him in his role as a monitoring Minister for my area under the city grant scheme. We saw moved into the former vicarage in my parish in Wath-upon-Dearne the national headquarters of the Church "Lads" and Church Girls Brigade. I am sorry that the two right reverend Prelates are not present, because we saw that not necessarily large but important national organisation move to my area. The headquarters is one-and-a-quarter miles from the Dearne Valley Partnership headquarters which the noble Lord frequently visited.
I suggested to the Dearne Valley Partnership that it was wonderful to have brought a virtuous, meaningful and worthwhile organisation into our area but their people would not cross the road to visit it. I saw the noble Lord's predecessor and asked him to visit it, hoping that it would be a mark of approval of the establishment of the new headquarters. He visited it but he had it taken out of his official programme and the time he spent there was marked as a private visit, so it was not terribly useful. Fortunately, Her Majesty the Queen and the most reverend Primate the Archbishop of Canterbury have visited it since then.
I make the point to stress that we do not sufficiently esteem and encourage voluntary organisations. The public purse will not at this time allow the resources that are needed to fund the youth service and we should therefore seek more positively to encourage the voluntary sector.
568 It is not an easy problem, but the Government must sent out signals that there must be an improvement in the standards of conduct virtually everywhere in Britain and certainly in the distressed and affected areas. They must say to people that conduct of the kind to which we have become accustomed over the past two decades is not tolerable.
All kinds of fiddly points will be made, and perhaps serious ones, in the further stages of the Bill, hut one hopes that this House will allow the Bill to go to the other place in such a condition as to make a contribution to establishing the degree of law and order that the country needs. It is no good people saying that we must not let our prisons become even fuller. The reason we have many people in prison in this country is that we have a lot of crime. Much of it is not even measured because people no longer feel confidence in the organisations which have a responsibility.
As a Government we must now see that the country is told clearly that irresponsible behaviour, terrorising behaviour and violent behaviour will merit the kind of response which might make a contribution to deterring its continuance.
§ 7.20 p.m.
§ Lord Windlesham
My Lords, like other speakers I welcome the emphasis in the Bill on youth justice. Some of the proposals have attracted criticism and there are certainly a number of matters which will call for close scrutiny in Committee. Nevertheless, the broad thrust of this part of the Bill is timely. It was carefully worked out, both before the election and after the present Government came to power. Moreover, many of the key elements have been the subject of intensive, albeit hurried, consultation.
Since the 1980s, as a result of steeply rising crime rates and the consequent pressures on legislators to respond, we have experienced in this country a series of increasingly frequent enactments aimed at dealing with some part of the overall crime problem. In addressing those issues inside as well as outside Parliament, there has been a clear divisiveness between those who put their faith in more effective law enforcement and punishment and those who urge that the priority should be to strike at the roots of poverty and social deprivation which are so often associated with offending. Let us hope that this Bill represents a departure from the stereotypes of the past and marks the start of a new era.
If there can be any doubt now about the scale and destructiveness of offending by young people, let alone anti-social behaviour, it will be dispelled by the most cursory look at the statistics. What I am about to say will perhaps complement the vivid anecdotal experiences of the noble Lord, Lord Hardy.
Home Office research estimates that 26 per cent. of known offenders are under the age of 18 and that 3 per cent. of offenders—a very small proportion—commit 26 per cent. of youth crime. Most telling of all is the finding of the Audit Commission in a survey published last year that young people commit around 7 million offences each year. If that were not bad enough, national population projections indicate that 569 unless effective action is taken, the worst is yet to come. Both for males and females in age groups 10 to 14 and 15 to 19 the numbers are on the increase and are forecast to reach a peak between the years 2001 and 2006. If the forecasters are correct, that will be followed by a sharp decline in youth population from the year 2006 with numbers stabilising by the 2020s. The unavoidable conclusion must be that the next two or three years are absolutely crucial.
If attitudes can be changed, with the police, the courts and the prisons working closely with the schools, social services, probation and other services to contain and, if possible, to reduce the scale of deviant behaviour, then there will be some hope for the future. But if the effort is not made and reliance is placed disproportionately on punishment, imprisonment and deterrence, there is a near certainty that things will get worse.
There is therefore a need, recognised in the White Paper and translated into the Bill, for a sense of urgency at local level to turn young people away from crime. I find Part III of the Bill encouraging reading. It adds an important component to the system of criminal justice. The purpose is plainly stated in Clause 28 which reads:It shall be the principal aim of the youth justice system to prevent offending by children and young persons".In future, all persons or bodies carrying out functions in relation to youth justice will have a statutory duty,to have regard to that aim".As far as I can tell, creation of a general duty is an innovation not to be found in other parts of the system of criminal justice. While it sounds desirable enough in principle, there may be difficulties in reconciling it with international treaty obligations on the rights of the child and there will be an awkward question to be faced as to whether or not it should extend to defence counsel in criminal proceedings. But they are good intentions and good intentions often have practical consequences which must then be faced and resolved in some way that is regarded as satisfactory to the legislature.
The crux of the proposals in Part III is that the new initiatives, as often stated in today's debate, will be local in character. Under Clause 31 each local authority—which, in Part III of the Bill and subject to correction, I take to mean in general county councils—will have a responsibility to draw up and implement an annual youth justice plan. It must also establish for its area one or more multi-agency youth offending teams. They will draw on the expertise of the police and the probation service, together with the education, health and social services.
At national level there is to be a non-departmental public body known as the Youth Justice Board for England and Wales. Its remit will be to monitor the working of the youth justice system and the provision of services, to advise the Secretary of State on the operation of the system and to help with the setting of national standards for youth justice, including the accommodation in which children and young persons are held in custody. The latter is likely to prove particularly important.
570 The accountability of this non-departmental public body, it is suggested by some, should not be to the Home Office, as proposed in the Bill, but to the Department of Health which has a responsibility for child welfare services. I do not agree. The Home Office has many restrictive functions and, over time, the performance of those restrictive functions may influence the cast of mind of the officials. It is most important for the departmental culture of the Home Office that it has responsibility for some areas of more constructive, more positive policy to act as a humanising force over the department as a whole.
The vulnerability of Part III of the Bill lies not in the structural design, but in the lack of ring-fenced funding for the youth offending teams in carrying out the local plans. That point has been made in several speeches today. The necessary money, it seems, is expected to be found from the financial resources which are available year on year to the police, to the probation service, to the health authority and to the local authority for education and social services. As a consequence, youth justice will have to compete with many other claims on hard pressed existing public services. It is a familiar picture and, apart from its relatively weak negotiating position as a hybrid newcomer, the compartmentalisation of spending in the criminal justice system means that if effective savings are made in one area, for example, lower court or prosecution costs because of diversion programmes, they are not transferred.
Similarly, savings achieved in the hugely costly prison service as a result of dealing with offenders in ways that do not involve sending them to prison will not be transferred to the operational agencies. Coopers & Lybrand calculated in a recent study that each youth crime costs £2,300 and that, if prevented, half of that cost would be recovered. Therefore, there is a benefit coming in from more effective prevention and it would be desirable to see if there were some way of linking that to the increased expenditure rather than leaving these new services subject to the already capped public services in each county authority.
I wish to say a brief word about the importance of voluntary organisations in supplementing the work of the new statutory youth crime service. Organisations such as NACRO will be able to play an invaluable part in making the provisions of the Bill successful in practice. NACRO has had long experience in bringing agencies together at local level in order to plan and carry out strategies to implement legislation. The combination of paid staff and willing volunteers can enthuse overloaded and sometimes reluctant members of the criminal justice professions to see the potential opportunities offered by new policies and can provide the commitment to make them work.
Without pre-empting a later speaker who has closer connections than I with NACRO, I conclude by saying that it would be a tragedy if the present sharply reduced core funding for NACRO prevented it from making the contribution it could so well make towards the successful implementation of this Bill.
§ 7.33 p.m.
§ Viscount Tenby
My Lords, perhaps I may say what a pleasure it is to speak on this important piece of legislation. I believe I am correct in saying that it is the first Bill which will be shepherded through this House by the Minister. I wish him well in his herculean task. I am confident that we can count on his courteous and sympathetic ear throughout all the stages of the Bill, especially since some of us may be voicing the fears and aspirations which he so ably presented when on the other side of the Chamber not so long ago. Ah, the warp and woof of politics.
This is an important Bill and, in contrast to some of its predecessors, it covers new and productive ground. It is big. I believe there are as many as seven new orders contained in it. That is more, one is tempted to observe, than on the chest of a musical comedy general. Each is designed to address specific problems. In any case, the continued increase in the crime industry, whatever statistics may say, is too serious a subject for flippancy and, dare one say, for party politics, too.
The Bill covers far too great an area for me to raise more than a limited number of points and, in any event, there have been far more persuasive and authoritative voices than mine to pinpoint the major issues. I intend to concentrate on three concerns.
The underlying theme of shortening the time between the commission of an offence and the sentence, particularly where juveniles are concerned, is to be warmly welcomed. The Bill contains many practical ways of achieving this desirable result. I should declare an interest as a magistrate only recently seconded to the supplementary list.
I applaud the proposal that single magistrates should be able to act on a whole range of court tasks, although I suspect there may be more reservations about granting this power also to magistrates' clerks. I have realised since writing this speech that there could not be a more distinguished reservation than the one already heard this evening. I am extremely grateful to the noble and learned Lord the Lord Chief Justice for so tellingly pinpointing the difference between the administrative tasks of justices' clerks and the legal implications involved. Clearly, care will have to be taken about the choice of magistrates who are to sit alone. They should probably be drawn from a specially prepared list of a Bench's chairmanship committee. As to justices' clerks officiating, if it comes to that, certainly great care should be taken as to the seniority and experience of any so chosen. Although the Bill does not say so, I assume that only justices' clerks themselves and not clerk assistants would be eligible. That point should be addressed when the appropriate order comes to be made.
I welcome very much the partnership envisaged between local authorities and the various appropriate agencies. Once again this is of particular importance where juveniles and their parents are concerned. If I may be permitted one passing thought on the subject of breaching a parenting order—the right reverend Prelate, the Bishop of Hereford, also touched on this point—it would be this. I believe that we would accept the justice of imposing a financial penalty on those parents— 572 regrettably, there are many of them—who have no intention whatever of taking their responsibilities seriously. But what of the single parent mother with, say, three sons, possibly by three different and absent fathers, where the subject of the order is literally out of control and physically intimidating? It is not enough to categorise mothers in this predicament as being inadequate. That is almost certainly so. Equally, they will almost certainly be in fear of their sons, making compliance impossible. Almost certainly, too, they will be unable to pay any fine imposed as a result of their inability to control them.
In another part of the Bill I can see a possible conflict of interest arising where a bail condition might be that the accused makes contact with a legal adviser. As one who has suffered endless delays in court because legal help has not been sought in time, I welcome the thought behind the provision. However, advice of a breach of such provision can surely only be provided by the accused's legal adviser himself—hardly a propitious beginning to their relationship, one would think.
I now come to the reservations which I mentioned earlier. My first concern relates to the detention of young offenders. Clause 62(1) the Bill states:An offender shall serve the period of detention and training under a detention and training order in such secure accommodation as may be determined by the Secretary of State or by such other person as may be authorised by him for that purposeWhat exactly does "such other person" mean? Is it the appropriate court? Is it someone in the prison service acting on behalf of the Secretary of State? Is it a holding device so that at some unspecified time, perhaps when various administrative arrangements have been made, the Secretary of State can authorise the appropriate authority to pick from these options? I have to say that leaving questions like these hanging in the air indicates that the drafting of the Bill in some cases does not always equate with the wholly admirable and oft-repeated assertion in it of using—I quote at random—"ordinary language".
In subsection (7), we are told what "secure accommodation" may be. From the menu, I pick two choices; first, a secure training centre. Way back in 1994 it was announced that five such institutions would be built. I remember the noble Lord the Minister—I hope he will not object if I quote him—saying on this subject:The proposal … will not work"—[Official Report, 25/10/94; col. 459.]He also, quite rightly in my view, pointed out that there would be no STC in Wales. So not only would parents have to make the long journey to eastern England, where most are due to be situated, but local probation contacts would be similarly inconvenienced. That was three years ago. And where are we now?
I believe that the first—Cookham Wood—is being taken into the service next April. But what of the others? Have any yet received planning permission, where such permission is necessary? Is it intended that girls should be included in the net, with all the attendant problems that that brings, a point with which I know my noble friend Lord Allen of Abbeydale, who regrettably cannot be here tonight, is much concerned? I am not trying to embarrass the Minister by these remarks, but even 573 allowing for the interminable delays of bureaucracy and a change of government, I feel that some of these urgent matters could have been addressed and resolved in three years.
The second selection from the menu relates to secure local accommodation, one of the options available for committal for detention and also, under Clause 80, available as somewhere to which juveniles of 12 and over can be remanded. Most of us will applaud this long-overdue provision. But what is available? Is it sufficient? Can we be satisfied that, in a service which is in the hands of local authorities, a sufficiently high national standard is maintained? Have the Government plans for a national inspectorate, for example? After all, if such inspections are deemed appropriate for magistrates' courts and the prison service, why on earth not for local secure accommodation?
On the question of availability of places, we have been told that the final 10 of 170 additional places will become operational in August next year. But should we not be laying plans now for many more? After all, the provision in the Bill will enable courts to remand juveniles of 12 and over direct to such accommodation, together with vulnerable 15 and 16 year-olds. In practice, I suspect that places will be at a premium and that, as a result, 15 and 16 year-olds deemed to be "non-vulnerable", in this curious phrase, will continue to be remanded in custody; that is, prison. That is surely no longer acceptable in this day and age. Further, from a detention point of view, having visited both youth detention centres and secure local accommodation over the years, I am quite sure which of them makes the more positive contribution in weaning youngsters off crime. Will the Minister undertake to get his colleagues to look sympathetically and urgently at the need to make a substantial increase in the stock of appropriate secure local accommodation over the next few years and put in train plans to have a national standard of efficiency inside them?
Finally, I come to the question of resources. The implications in the Bill for local authority participation must imply the need for further funding, sooner rather than later, since it seems unlikely at a time of major reorganisation for local government that the finance for what in some instances will inevitably create the need for additional posts will be forthcoming under existing limits. In addition, the Bill specifically identifies a need for a further 600 places within the probation service. Where will such personnel come from? Will the depleted Armed Forces be raided, as the previous administration threatened to do? What qualifications will be required of them? The Minister may recall that some of us were less than enchanted by the previous government's attempt to dumb down the professional qualifications of the service, an attempt which, in fairness to them, they seemed to modify as the months passed. Can the Minister now tell us how matters stand in this respect?
I hope the Minister does not feel that I have been grudging in my admiration of the Bill merely because I have voiced certain reservations over parts of it. My defence is that they are very important parts to some 574 of us. In many respects—very many respects—it is an exciting and innovative piece of legislation which ought in general to demand the respect and support of the House and the country. I wish it well on its journey through the upper House.
§ 7.45 p.m.
§ The Earl of Longford
My Lords, it is always a pleasure to follow the noble Viscount on social matters, as regards which he speaks with so much first-hand knowledge. I had one memorable encounter with his grandfather, the famous Prime Minister, Mr. Lloyd George, as he then was. I had written a book on the Irish treaty, of which he was the prime British architect. I was taken to see him by a beautiful woman. He was always happy to meet beautiful women. He put up for a time with me asking him questions about Arthur Griffiths and Michael Collins. He listened with visible impatience and then he saw a way out. There was a bell on the wall. He got hold of the bell and tugged it and then a whole lot of dogs rushed in and overwhelmed us. That ended the interview. I realise that he was a man of genius but I prefer the social record of the noble Viscount who has just addressed us.
I was honoured and almost excited by the recollection of the noble and learned Lord, Lord Ackner, about a debate I initiated in 1990. I had been initiating debates in this House for 35 years before that. The noble and learned Lord brought a special quality to those debates and he has done the same ever since.
I realise that the most important things I intended to say have already been said by the noble Lord, Lord Rodgers, and the noble and learned Lord, Lord Ackner. Nevertheless, I shall briefly say them again. About 40 years ago, with a lot of expert help, I wrote a book on the causes of crime which I believe is still in the library. If noble Lords are interested in my views on the causes of crime and have a few minutes to spare they can look them up there. So I shall not go into the fundamental causes of crime. One must put the Bill into perspective as an attempt to curb the terrible fact of the increase in crime. It is doubtful whether it is increasing at the moment, but certainly since the war it has increased ten-fold. So it is obviously an important issue and an international issue.
What are we to make of the present attempt? In my few remarks I am scratching the surface of the subject and, if I may say to the Minister with enormous respect, so are the Government. The Bill is full of good intentions. Certainly, if I am called on to vote on the Second Reading of the Bill, which of course will not happen, even apart from party loyalty, I would have no difficulty in supporting it. However, it is a limited measure when one thinks of the problem of increasing crime.
What has happened in this country—it was alluded to by the noble Lord, Lord Rodgers, and the noble and learned Lord, Lord Ackner—is that in the past four years the prison population has increased by 50 per cent. It is going up and up. As the noble Lord, Lord Rodgers, said, it was 60,000 a few months ago and now it is nearly 64,000.
575 Can anyone tell me why that is so? What is the explanation? It does not lie in the mouth of any official spokesman to say that it is due to an increase in crime, because official spokesmen of all parties say that crime has diminished. We were given rather thought-provoking figures by the noble Lord, Lord Windlesham. In passing, I cannot help but say yet again that his memorable books on penal treatment, written since the war, stand alone.
The figures are for crimes of all kinds. But if one considers indictable crimes, according to the figures given to me, the number has declined. It has declined from over 5 million to under 5 million. On the face of it, therefore, crime has decreased in the past four years yet the number in prison has increased by 50 per cent. That is the kind of fact which the brilliant government representative will no doubt manage to pass over quickly in his reply. But those are the facts. For no obvious reason the number of people in prison has increased enormously and with what result?
In practice it makes rehabilitation impossible. There is an enormous increase in expenditure. We have been told that 30 prisons are to be built in the next few years. People say that we cannot afford it and therefore the probation service is being cut. What about the education service? That is also being cut. Because of the insane policy of sending far more people to prison than we need to, we are lowering the standard of treatment in prison. Therefore, it is now impossible to give adequate, rehabilitative treatment to prisoners. What is more likely to create crime in future than sending a great many people to prison, lowering the standard of their treatment, and making sure that they are not treated properly?
Up to a point, for some months we have been able to blame the previous government, but not the long-term representative, the noble Lord, Lord Windlesham, and the other ex-Home Secretaries who are now in this House. Through their labours the prison population had been reduced to just over 40,000. But, suddenly, there was a sea change and for no obvious reason the prison population has gone up and up and it is doing that now.
Until the Government do something about that they are toying with the problem. I have written an article somewhere or other as though I were Jack Straw. I never had the chance of being Jack Straw. When a Labour Cabinet was formed in 1964 I became the Leader of the House. Evelyn Waugh wrote to a friend and said that he was glad that I was not going to be Home Secretary otherwise we would have all been murdered in our beds. So I am not going to say, "If only I had been Home Secretary I would have known how to deal with the problems".
The Home Secretary has a very difficult task. The question is what will happen when he comes before St. Peter? He will not arrive as soon as I do, but, nevertheless, the time will come when he will arrive there. I know that the Home Secretary is a good Christian. St. Peter will say to him, "What did you do down there? We have some brief up here about your prison population going up and up when you were Home Secretary. Did you do anything about it?" The 576 Home Secretary will say, "I'm sorry, but I was very busy at the time". So I believe that St. Peter will relegate him to the same part of purgatory as I shall occupy. The Home Secretary has to face the moral problem of doing something about the situation or not.
What can he do about it? I believe that the noble and learned Lord, Lord Ackner, pointed us in the right direction. There was an atmosphere, which was not created by the judges. In the old days the judges were regarded as "the baddies" and the elected politicians would, somehow or other, improve matters. Now the judges are relatively "the goodies" compared with their political leaders. So it is not the top judges, but the people who pass the sentences. They are dishing out very heavy sentences not because of increasing crime but because of the atmosphere created by, I am sorry to say, the previous Home Secretary in a tragic phase of the Conservative Government. That is the situation.
I have said it before, but I cannot help saying it again. Is the present Home Secretary and the Cabinet ready to take on the responsibility of trying to re-educate the public about penal matters?
§ 7.55 p.m.
§ Lord Dholakia
My Lords, no one can be in any doubt at all that tackling youth crime is a priority for the Government. Public perception, backed by the media, is that the problem is out of control. There is a continuous demand for tough action; more powers for the police and the courts; more punishment for parents and more teenagers behind bars.
The Government have responded with a variety of proposals, from boot camps to tagging; from naming and shaming to curfews. The Bill contains some positive measures, including early help for children and intensive community supervision schemes for those who repeatedly offend. Equally, there are many aspects of the Bill which appear to look tough rather than seriously address the problems.
I do not intend to be critical, but there are bound to be occasions when one has to be. But I hope that my kindness will be noted by the Minister because I have a request to make at the end of my contribution. I certainly welcome many of the measures outlined in the Bill. But let me declare an interest at this stage. I am vice-chairman of NACRO and in that capacity it is pleasing to note that that organisation has contributed in a positive way to some of the measures that we are seeing in relation to youth justice. In fact the Home Secretary's Task Force on Youth Justice is a body of which one of NACRO's senior staff is a member.
Perhaps I may declare another interest. I am also a member of the Police Complaints Authority. That organisation yesterday produced a report about the racist murder of Stephen Lawrence. The report was published by the Home Secretary yesterday. I therefore particularly welcome the provisions of the Bill which deal with racially motivated offences. They are contained in Clauses 22 to 25 and also in Clause 68. They rightly reflect the fact that racial motivation is an aggravating factor which it is proper to reflect in sentencing decisions and also in terms of maximum penalties.
577 However, I have serious concerns about the ability of the criminal justice agencies to identify that particular motivation. In September of this year the Crown Prosecution Service produced a report on its Racial Incident Monitoring Scheme. It has succeeded in bringing admissible evidence of racial motivation to the courts' attention in about 84 per cent. of cases. But it comments that there still remains over 15 per cent. of cases where that is either not being done or the information is not being recorded. It comments also that when passing sentence the court has not necessarily reflected that by increasing the sentence or has been unwilling to state that it has done so.
What is even more worrying is the fact that the police identified only 37 per cent. of the cases submitted to the CPS, the remainder being identified by the CPS. What it shows is that the multi-agency strategy on which the previous and the present Government are placing considerable emphasis is not necessarily working well.
We need to examine not only the provisions in the Bill but the very definition of "racial attack". We must also accept that there is adversarial contact between police and the black community and ethnic minorities. Therefore, if this provision is to be effective, it is essential to back it up with proper training for police officers to enable them to recognise and properly record racial incidents; for the CPS to recognise racial motivation and to reflect that in its selection of charges and presentation of cases; and for sentencers to ensure that they consider racial motivation as an aggravating factor when deciding on sentence.
I say that because the British Crime Survey and a number of other research papers have identified the fact that racial incidents in this country vary in number from about 130,000 to as many as 250,000 a year. That is an unacceptable figure in any civilised society. Furthermore, a racial attack is not simply a phenomenon that occurs between two individuals. The psychological impact of what happens to the community is great, and that point has to be taken into account. Now that we have the opportunity as we assume the presidency of the European Union, we need to ensure that such incidents are highlighted when they occur in Germany and France. I hope that the Government will do that when they perform that particular role.
I welcome another feature of the Bill, Clause 5, which places requirements on local authorities and the police to draw up crime and disorder strategies in consultation with other agencies. In many ways this is the most crucial clause in the Bill because agencies working together to prevent crime can do more to protect the public than any number of changes in sentencing and penal policies.
Many of the Bill's provisions on youth justice should greatly improve the prospect of steering young people away from criminal activity. I welcome the establishment of a national youth justice board to set national standards for youth justice services; the setting up in every area of inter-agency youth offending teams to run diversion programmes, bail support schemes and community sentences for young offenders; a statutory 578 duty on local authorities to provide a range of youth justice services; and measures to speed up the youth justice process. I am sure that all those working in the criminal justice system will welcome these measures which should greatly improve the consistency and effectiveness of the way in which young offenders are dealt with. I believe that NACRO has played a very important role in identifying the need for such measures.
I hope that the new reparation order will give the courts a useful low tariff penalty when dealing with young offenders. Experience with cautioned young offenders shows that apology and making reparation to their victims can have a salutary effect and that many victims appreciate it. The new action plan order of a short but intensive programme of work to tackle the causes of offending is also welcome. All those who have worked on supervision schemes will confirm that constructive supervision programmes offer the best hope of steering many young offenders away from crime.
There has been considerable publicity about those who reoffend when on bail. The provisions in Part HI of the Bill will help to speed up the youth justice system, thus reducing the risk that young people will dig themselves deeper and deeper into trouble by reoffending on bail. I hope that we shall not think that speedier justice means harsher justice. The sooner sentencing takes place, the sooner the constructive programmes of court-ordered supervision can start.
I believe that the new treatment and testing order for drug-dependent offenders can make a significant contribution to reducing both crime and imprisonment. Drug use now provides the motivation for an enormous amount of crime. Its use in penal institutions is even more worrying. The government-funded National Treatment Outcome Research Study recently found that a sample of 1,100 drug misusers entering treatment programmes had committed 70,000 crimes between them in the three months before starting treatment. That is a horrifying statistic. I am delighted that the noble and learned Lord, Lord Ackner, pointed out the research in America which has shown that every dollar spent on treatment programmes saves the taxpayer seven US dollars by reducing the cost of crime and the demands on the health service. That is a progressive way to tackle this matter.
Electronic tagging has aroused considerable controversy. With the prison population at an all-time high, Clauses 82 and 83 provide for the early release of selected prisoners under electronic tagging. This will provide much-needed relief for an overstretched prison system. How refreshing it would be (if we are to look seriously for a solution) to remove mentally ill prisoners from prison establishments and also reduce the use of remands in custody. I have served as a member of a board of visitors of a prison for over 15 years. There is a danger that lack of action on this front would cause control and discipline problems. The tighter pre-trial time limits will help to cut remand time. Let us hope that this measure will help to reduce the large prison population. I also welcome the statutory duty which Clauses 66 and 67 place on the Court of Appeal to issue sentencing guidelines with the advice of a Sentencing Advisory Panel. This is an important move towards 579 fairer and more consistent sentencing which should help to reduce the excessive use which some courts make of prison for less serious offenders who would be better punished in the community.
NACRO has consistently pressed for extended periods of compulsory post-release supervision for sex offenders and violent offenders. I therefore welcome Clauses 46 and 47. Home Office research has shown that supervision on release markedly reduces the risk of re-offending. Supervision can include conditions (for example. requiring the offender to live in a specified place or to take part in a treatment programme) and failure to co-operate can result in recall to prison. Extended supervision periods will both increase public protection and may improve the prospects of the successful resettlement of serious offenders.
I have concerns about a minority of the Bill's provisions. Clauses 80 and 81 will further postpone ending the practice of holding 15 and 16 year-olds in the prison system. As recently as last month the Chief Inspector of Prisons published a hard-hitting report which argued for the removal of all young people under 18 from the "corrupting influence" of prison service custody. The previous government instituted a programme to build 170 more secure places for juveniles in order to end the need to remand them to the prison system, yet the Bill will change the law in order to use the places to lock up 12 to 14 year-olds instead. Earlier this year, during the passage of the previous government's Crime (Sentences) Act, Labour criticised the delay in ending remands of 15 and 16 year-olds to prison service custody. These clauses would extend the delay which the Government rightly criticised when in opposition.
Perhaps I may identify another area of concern. At any given time about 16 per cent. of the male prison population is black. The proportion is even higher in female establishments—at about 26 per cent., or one in four female prisoners, against a proportion of no more than 5 per cent. in the community as a whole. Why they are there is less important; what we need to find out is how the criminal justice system produced such a discrepancy. I have argued for a proper system of monitoring for the past 20 years. I accept that monitoring is the end product of a system where differential treatment has already taken place, but it is important to ensure that any measure that we promote has a proper monitoring system so that we can analyse the outcomes and ensure that the system treats everyone fairly.
I hope that NACRO will be able to play a full part in making the majority of the Bill's provisions a success. I welcome and applaud what the noble Lord, Lord Windlesham, said. The previous government cut NACRO's core grant from £1 million to £400,000. Unless those swingeing cuts can be reversed, NACRO will have to make extensive reductions in those core staff who are so crucial to developing services and strategies to prevent crime, resettle offenders and promote constructive changes to the criminal justice system. I hope and expect that the Government will look favourably on NACRO's application for the level of core funding that it needs. Raising money to work with 580 offenders has never been an easy task. The Government's commitment to preserve the role of voluntary organisations in this crucial area of work requires financial help. NACRO is important to the Government. If it is not there the Government will have to invent it. The cutback in its resources will damage not only the organisation but the prospect of combating crime and disorder which this Bill embodies.
§ 8.10 p.m.
§ Lord Northbourne
My Lords, I have been beaten by the two Statements and I apologise to the House for the fact that I must leave before the end of the summing up. I believe that the noble and learned Lord, Lord Falconer, has forgiven me, and I hope that the House will also forgive me.
I intend to speak only briefly on one particular issue. First. I congratulate the Government on this innovative and thoughtful Bill. I hope that its provisions work, and I shall do everything that I can to that end.
The right reverend Prelate the Bishop of Hereford said that the provisions of the Bill would not work unless they addressed the fundamental causes of crime at a much earlier age. He referred to the family. parenting and support for parents, which many noble Lords will know is a matter very close to my heart. The right reverend Prelate also referred to communities. I agree entirely with what he said in that context. He also referred to role models, and it is on that subject that I should like to speak for a few moments this afternoon. I speak about role models in the context of boys. Boys and men are responsible for the vast majority of crime. Girls are catching up a little but they are still way behind. I believe that it is useful to look at this issue in the context of boys.
It may well be that we underestimate the importance of role models. I refer the House to a very interesting and elegant piece of research carried out in Washington DC. I acknowledge that one swallow does not make a summer and that a piece of research done in one particular community in one country is not necessarily applicable elsewhere. However, one hopes that that can be replicated in this country in different communities. If it shows, as it clearly has in the United States, that for boys a role model is absolutely fundamental to their behaviour, to their acceptance of education and their being able to get on in school, then we have a lot of thinking to do. There is a great deal that we can do.
It was found in certain areas of Washington DC that African-American boys emerged from school almost totally uneducated having rejected education, while African-American girls did as well as any other racial group. When the matter was looked at more closely it was discovered that up to the age of six or seven boys and girls progressed pari passu. At about the age of seven boys peeled off and appeared to reject the teaching that they were being given by female teachers. It was hypothesised that the reason might be that those boys had come from single-parent families where they had no males in their lives and that they were being taught by women and were rejecting the guidance and education with which they were being provided. A 581 group of African-American males—good guys—volunteered to go into a school for an hour or two each day. It was the same man in the same class each day. When little Johnny said, "I'm not effing doing that"—or whatever the equivalent is in America—the man would say, "Johnny, come here. You do what Mrs. Peacock tells you to do. I shall be here tomorrow and I shall want you to show me what you've done". It was as simple as that. Fascinatingly, those boys, now aged 15 and 16, are doing just as well as the girls.
I do not say that that can necessarily be replicated in another group in this country, but I ask the Minister to draw the attention of his right honourable friend to this work and the possibility of replicating it. It may be something that the Social Exclusion Unit can take on board. If the simple input of a male role model can be so important—it is not because women cannot teach boys but because boys look to men to see what it is like to be men, which is what they will do whether we like it or not—the implications may be enormous. We have to think much more about the role of men in families and the roles of grandfathers, uncles and aunts in the community. We must also think about the ratio of male to female teachers in schools and the youth service that has been almost destroyed over the past 20 years. We must also give consideration to sport and to training men to lead in these areas where they can be heroes and role models for boys. I believe that we must install a proper vetting system to ensure that the men we put into those positions do not damage the boys and, equally, that those men are not terrified of doing the job for fear of being accused of abusing the children.
I leave that thought with the House. This is perhaps one of the underlying causes of crime that we should address if we want the provisions of the Bill to succeed.
§ 8.16 p.m.
§ Lord Mackay of Drumadoon
My Lords, I should like to begin my few remarks by joining in the congratulations of the noble Lord, Lord Watson of Invergowrie, on his eloquent maiden speech. I hope that the causes that he supports in your Lordships' House bring him greater rewards than his support of Dundee United football team in recent years. He comes from a constituency in Glasgow which has a lot of the problems with which this Bill is concerned. I am quite sure that at Committee stage he will speak with considerable authority on the issues to be debated then.
At this time of the evening I confine my remarks to a few observations on the provisions of the Bill as they relate to Scotland. I deal first with certain clauses which I welcome with a considerable degree of enthusiasm. I refer to the clauses that deal with drug treatment and testing orders. These clauses find a great welcome in Scotland from both SACRO and other quarters. This is a new and extremely worthwhile idea worth pursuing particularly as it is to be tested in a pilot scheme before full implementation occurs. Those of us who have been involved in the criminal justice system over the years know that drug dealing and drug use bedevil all levels of criminal conduct from the most serious to the relatively petty. The statistic given by the noble Lord, 582 Lord Watson, that 26 crimes are committed per month per drug user indicates that in many instances it is the frequency of the offending rather than the gravity of the individual offence that gives rise to the greatest cause for public concern.
For many less serious offenders the last place to which they should be sent is some form of detention or imprisonment. Therefore, the greater range of alternatives to custody that is available the better. That is why this new idea is certainly worth trying out in the way that the Government suggest. The issue of resources is clearly relevant to its success. I hope that at Committee stage the Minister will explain to the House how this new idea will be funded both north and south of the Border.
I have greater difficulty in giving unqualified support to the proposals for anti-social behaviour orders and sex offender orders. I am aware that in recent months in Scotland the activities of bad neighbours and the whereabouts of convicted sex offenders in housing schemes have given rise to considerable public concern, but I have reservations about whether the right course is to give power to a local authority to initiate action in this field.
That will draw the local authority into disputes. If it is the landlord of both neighbours it may have to depart from the neutral position which one would normally expect and begin to take sides. Furthermore, individual councillors may be put under pressure to act. They in turn will encourage officials to do so. The decisions as to whether the applications are to be initiated may become motivated by political considerations and not a proper pursuit of public interest. There is also a problem with resources and of having a common policy throughout the country. It would be wrong for one local authority to have an aggressive policy and for a neighbouring authority with similar problems to have a different policy.
My greatest difficulty with the idea is how the local authority will be seized with all the relevant information to decide whether to take action. No doubt it will receive a complaint from the neighbours who are concerned about the anti-social conduct, but it will not have access to information which the police have and it certainly will not have access to the information which the Procurator Fiscal has. If there is disagreement between the chief constable and the local authority, and the local authority decides to proceed, that, too, could be a cause for concern. While not completely ruling out the idea, the issue must be looked at in great detail in Committee.
Another aspect of the proposals which causes me great concern applies to Clauses 18 and 19. I refer to the scope of the power which would be available to the civil court to regulate the behaviour or conduct of the individual concerned. As I construe the provisions, they would entitle a court to exclude an individual from the house which he tenanted and even the house which he owned. That raises certain issues under the European Convention. I would welcome an indication from the noble and learned Lord that in his view all the provisions of the Bill comply with that convention and with the provisions of the Human Rights Bill which is going through your Lordships' House.
583 I turn briefly to the provisions relating to extended sentences. Again, some European Convention points may arise and I should welcome guidance on that. More importantly, I should be interested to hear the views of the Scottish judiciary on whether they welcome the proposal. I understand that the power would be available to sheriffs dealing with sexual offence cases and therefore it is important that their views, as well as those of High Court judges, are known before your Lordships enter detailed consideration of the clauses.
Finally, I turn to the provisions relating to racially aggravated harassment, taking into account racial aggravation, in sentencing. As your Lordships who have studied the Bill in detail will know, the provisions for Scotland are more limited in scope than those which are to apply to England. That acknowledges the fact that the Scottish criminal law is more flexible in dealing with such behaviour than may be possible in England.
Notwithstanding the fact that the provisions are more limited in scope, there is a considerable body of concern as to whether the Government are following the right lines. In the consultation responses which were submitted to the Government, a large number of bodies expressed opposition to the proposals and a large number expressed considerable reservations. Many welcomed the sending of a signal that racial violence and racially aggravated conduct should be seriously addressed, but when the detail of the proposals was considered a great deal of anxiety was expressed. The Faculty of Advocates, the Scottish Bar, has indicated that it requires to be persuaded of the advisability of making new statutory provisions. The Sheriffs' Association believes that the provision of new statutory offences would be unnecessary. It anticipates considerable problems in demonstrating and proving racial motivation.
Perhaps surprisingly, the proposals have met opposition from local authorities' social work departments. The East Lothian Council expressed the view:We are concerned that the creation of new offences, while sending out a clear statement of government views, may serve only to enable individuals to escape successful prosecution and punishment for their behaviour, and accordingly we do not support this course of action".The body representing senior police officers in Scotland, ACPOS, believe that the proposal may be counter-productive. That view is shared by the sheriff principals, who consider the proposal to be contrary to principle and unworkable.
Those strong criticisms come from a wide range of consultees. I hope that when we discuss the provisions in Committee the Government will be prepared to answer them. As was said by the Lord Justice General, the noble and learned Lord, Lord Rodger of Earlsferry, in his response:So far as I am aware there is no aspect of racially motivated criminal conduct which cannot be properly tackled under the existing law if the racial element is brought to the attention of the police and prosecution and can be substantiated".He remains to be persuaded by the arguments for the introduction of a new offence.
584 The concern must be that if in the face of those objections the Government press ahead with the proposals for Scotland they will give two false messages. First, they will give the impression that this will achieve something for ethnic minorities in Scotland which cannot be achieved under the present law. Secondly, as was said by the Lord Justice General, the Government might send out the wrong signal to other sections of society. He stated that in Scotland:there are crimes inspired by religious hatred and hatred of homosexuals. If Parliament were to single out racial motivation, that might be perceived as suggesting that it was downgrading the seriousness of these other motivations… I am not sure what signal any enactment would send to society or to the courts about these kinds of behaviour".Those are serious observations and I hope that when we discuss their detail in Committee each and every one can be addressed.
§ 8.23 p.m.
§ Baroness Amos
My Lords, this is an extremely wide-ranging Bill and I welcome the Minister's clear exposition of it. A significant part of it concerns youth justice and I was pleased to see the move to a more restorative approach to the problems of youth crime. I also welcome the recognition within the Bill that tackling crime requires effective local and national partnerships. I particularly support the objective of nurturing the existing partnership process and establishing a legislative framework to ensure that the crime and disorder agenda is taken up and maintained locally to reflect local needs and priorities.
Other speakers in the debate have commented on some of the specific proposals relating to youth crime and anti-social behaviour. I wish to pay particular attention to Clauses 22 to 25, which deal with racially aggravated offences. For many years, I have campaigned for racial equality. As part of that campaign I have argued for the creation of a specific offence of racial harassment and racial violence. I have seen the impact of repeated acts of victimisation and violence on individuals and families and I have seen the build-up of anger, fear and resentment within ethnic minority communities.
In 1995–96, over 12,000 racial incidents were recorded by police in England and Wales. There is evidence to suggest that this is an underestimate. In May last year a survey was carried out for BBC Radio 5 on racism in the UK. There was a widespread view from participants in that survey that racism is a increasing problem in comparison with five years ago. Among African Caribbean and African participants in the survey, 60 per cent. felt that they had suffered some form of racial harassment. The figure for Asian participants was 40 per cent.
This is only a single survey—and I acknowledge that it dealt with perception—but data from the British Crime Survey also suggest that police statistics understate the extent of the problem. I therefore agree with my noble friend, Lord Watson, that there is no room for complacency.
We need to instil in our communities confidence that crimes of racial violence and racial harassment will be dealt with seriously. That is why I welcome the 585 Government's commitment to tackling racial violence and harassment and their determination that the criminal law should be adequate to protect victims of crime which is motivated by intentions amounting to racial hatred.
I also welcome the related developments within criminal legislation, particularly the applicability of the Protection from Harassment Act 1997 to incidents of racial harassment, and within other legislation the positive opportunities arising from community safety orders and local community safety planning. It is a major step forward and offers some reassurance to ethnic minority communities about the Government's stated intention to be tough on crime and on the causes of crime.
I do, however, have some anxiety relating to implementation of the Bill and to an omission from it. There are a number of areas where the impact of the legislation should be strengthened and the Government's expectations of key agencies made clearer. I have been involved in a series of joint discussions on the practical implications of the proposals. These discussions have included the police, local authority representatives, community organisations and lawyers. There was concern at those meetings that, despite previous guidance and public consultation on using the powers in existing legislation, we have not seen a consistent application of those powers, or indeed adherence to existing guidance, across the main agencies.
The success of this legislation will rest on the consistency and priority afforded it by key agencies—particularly the police, the Crown Prosecution Service and local authorities. We shall need to ensure that mechanisms are put in place to enable us to judge how well those agencies are doing. This is particularly the case in the light of the findings of the Police Complaints Authority investigation into the death of Stephen Lawrence, which were published yesterday and which have already been referred to by the noble Lord. Lord Dholakia.
The results of the investigation show how under-performance and a low priority can lead to the mishandling of cases, and it shows how such failures undermine public confidence—particularly the confidence of ethnic minority communities—in the justice system.
I hope that the Government will take steps to ensure effective implementation of the Bill. There are three ways in which this can be achieved. Firstly, we need a review of existing guidance to all agencies on racial violence and harassment and the development of new, simplified guidance to all agencies. This would include information and some training. Secondly, a specific duty should be placed on all local authorities to tackle racial violence and harassment. This could be linked to the community safety partnership proposals elsewhere in the Bill. Thirdly, it is important that we put in place a mechanism to ensure independent scrutiny of the performance of agencies which are involved in dealing with cases of racially motivated crime. It could also be a requirement of policing plans and community safety 586 plans that they include a section on dealing with racial violence and harassment. We need to be able to assess what progress we are making in creating a more equal and inclusive society.
Before finishing, I shall touch on one area of omission. It relates to criminal damage and particularly to racist graffiti—something which has been referred to by the noble Baroness, Lady Flather. Racist graffiti in particular can contribute to and underpin a culture of racial violence and harassment in some areas. The omission of criminal damage means that a substantial number of incidents will be outside the scope of the legislation. This will leave a confusing gap which will not be understood by local communities.
Although I have focused on my areas of concern. I repeat that I welcome the proposals on racially motivated crime. This is a good step forward but its effectiveness will have to be proved in practice.
§ 8.35 p.m.
§ Lord Goodhart
My Lords, this is something of a curate's egg of a Bill. Parts of it are excellent—indeed much of it is excellent—but some other parts need amendment or should be approached with scepticism, and one or two need outright rejection.
We have listened to many valuable speeches tonight, notably the distinguished maiden speech of the noble Lord, Lord Watson of Invergowrie. I propose to be a little more detailed in my speech than most speakers in order to illustrate why the Bill will need great attention in Committee.
Let me start by looking at Clause 1, the anti-social behaviour order. We do not oppose it in principle; we accept the need for a stronger, more effective remedy against the so-called neighbours from hell. But its powers look, certainly at first glance, a good deal too wide. I share the concern of my noble friend Lord Rodgers of Quarry Bank and of the right reverend Prelate, the Bishop of Hereford.
There are also many problems with the text. Let us look at them briefly. The order is triggered by acts which cause alarm and distress, but what if the neighbours to whom the alarm is caused are unduly sensitive? Should there not be a requirement that the behaviour must be such as would cause alarm and distress to reasonable people? What is the proof of anti-social behaviour which is required before the order can be made? Is it the civil standard, the criminal standard or something in between? What happens if the subject of the order moves to another local authority district? It would obviously then be pointless to retain the order in force in the original district, but there is no procedure under the Bill for the transfer of the order so as to make it effective in the place where the subject of the order now lives.
I turn to Clause 2, the sex offender order. There is a serious human rights problem here. A sexual offender order will almost certainly contravene Article 7 of the European Convention on Human Rights if it is made where the offence has been committed before the Bill comes into force. The Bill certainly appears to permit this. Article 7 states that no heavier penalty should be 587 imposed than the one that was applicable at the time the criminal offence was committed. I draw attention to the decision in the European Court of Human Rights in the Welch case, where a confiscation order in a drug trafficking case was held to be in breach of Article 7 because the offence was committed before the confiscation order was introduced by legislation. Indeed, I ask the noble and learned Lord, Lord Falconer of Thoroton, whether this Bill has been tested against the European Convention on Human Rights. Even if it is not necessary to do so until the Human Rights Bill is enacted, it is surely good practice to start doing so now.
Again, one might ask why, under Clause 2, there is no power to discharge a sex offender order within five years without the consent of the police. Clearly the police have a right to express a view on whether or not an order should be discharged, but it is a bad principle that the police should have a right of veto on whether or not to discharge an order made by a court.
I have serious reservations about the value of Clause 8 and parenting orders. Such orders require parents to attend counselling sessions. It is well known that counselling is useless unless the client is willing to accept it. Compulsory counselling is likely to be a waste of time and money and very difficult for the counsellor. Surely what is needed is a greater availability of family psychologists to help families that need help and are willing to accept it or can be persuaded, not compelled, to accept it.
Indeed, in many cases a parenting order would obviously be inappropriate. For example, what about a single mother with a violent 16 year-old son? She may risk being beaten up if she tries to control him and if an order is made, she is liable to a fine if she fails to control him or does not try to do so. Clearly in such a case, no order could be made.
I note and welcome the Government's proposal to run a pilot scheme but a modification is needed before the pilot scheme is introduced and I must say that I am sceptical as to whether parenting orders will work at all.
We welcome in principle Clauses 11 to 13 which deal with child safety orders. I have some problems with the drafting of Clause 11 and it should be noted that the standard child safety order appears to be made for too short a period. In the absence of special circumstances, the maximum period for which an order can be made is only three months. Surely an order needs to be longer if it is to be useful.
Clause 14 covers the local child curfew scheme. In that regard also there are serious problems. We certainly accept that children should not be out unsupervised late at night. But as drafted, Clause 14 produces some rather odd consequences. Where the order applies, it will be a breach for a nine year-old to be out kicking a football at five past nine on a bright June evening. It will be a breach for a nine year-old who has spent the evening with his grandparents to be brought home at five past nine by a 17 year-old brother or sister. Most extraordinary of all, it will be a breach for a 17 year-old mother to be out of doors with her baby. Technically, in each case it will be the duty of a police constable who discovers those breaches to report them. No doubt in 588 practice, any constable would be too sensible to do so. But laws which rely on the police turning a blind eye bring the law itself into disrepute.
How will the order be publicised? If the order covers an estate, the notice will no doubt be put through all the tenants' doors. But will everyone read it and what about children who come to the estate from outside? As we all know, there is a very serious problem with gangs of children on some estates, but not all children on estates are unruly and the order should surely be targeted on misbehaving children and not on the area as a whole.
I turn to Part II. Unlike some noble Lords, notably the noble Baroness, Lady Amos, I have doubts about Clauses 22 to 25 dealing with racially aggravated offences. In my view, those clauses are well meaning but could be counter-productive. The problem is that there may well be pressure on the CPS not to prosecute for aggravated offences because of the extra time and cost involved and the evidential problems in proving racial motivation. As a consequence, where an accused is not charged with an aggravated offence or has been charged with an aggravated offence but is convicted only of the simple offence, the judge cannot properly take racial motivation into account as an aggravating factor in sentencing, however clear in practice it may be.
Clause 68, which we wholly support on these Benches, requires judges to treat racism as an aggravating factor. May it not be better simply to extend Clause 68 across the board and if existing maximum sentences are inadequate to cope with racially aggravated offences, extend those maximum sentences?
As regards Clause 27—doli incapax—I certainly agree that the presumption of incapacity is often contrary to common sense. But are the government right to abolish the rule altogether rather than to reverse the presumption so that there is a rebuttable presumption that the accused has capacity? Ten year-olds are not always responsible for their actions in the same way as adults and should it not remain open to the courts to investigate the criminal capacity of the child where there are grounds for believing that the child may lack capacity.
I am happy to say that we can give strong support to Part III. We certainly support the youth offender teams and the youth justice boards. Youth offender teams will of course cost money and we must ask how much central government are prepared to provide to local authorities to pay for them. Are the Government prepared to commit resources to youth offender teams and the other additional burdens falling on local authorities or will they expect the whole burden to fall on increased council tax payments which would cause impossible burdens for most local authorities?
I should say that we express strong support for the fast track approach to the trial of young persons under Clause 35. Trial of all cases should be quick, but that is particularly important for the young.
To Part IV we can give an almost wholly positive response. We support extended sentences and drug treatment and testing orders. We certainly support the principle of the new system of reprimands and warnings, although some aspects of it are too rigid and we have 589 reservations about some of the details; for example, a restriction on the powers of the court to order conditional discharges. We support reparation orders, action plan orders, the strengthening of supervision orders and detention and training orders, although, as has been mentioned, there are some concerns about the reduction in age down to 12. We strongly support the clauses dealing with sentencing guidelines and the sentencing advisory panel.
Part V causes more difficulties. There is some concern with Clause 80 and in particular with Clause 81. Indeed, it can be said that Clause 81 contains what is perhaps the only wholly objectionable provision in the Bill. We do not accept that 15 and 16 year-olds should ever be remanded to prison or remand centres where they will come into contact with adult prisoners. Article 10 of the International Covenant on Civil and Political Rights, to which the United Kingdom is a party, requires accused juveniles to be separated from adults. The United Kingdom entered a reservation to that article, but only where there is a lack of suitable prison facilities or where the mixing of adults and juveniles is deemed to be mutually beneficial. Neither of those grounds appears to be applicable to the proposals in Clause 81. We believe that it is absolutely wrong to mix 15 and 16 year-olds with adult prisoners.
Clause 83 deals with electronic tagging for released short-sentence prisoners. We do not oppose it, but in our view it does not amount to a long-term solution and needs careful monitoring.
At this stage we can give the Bill a general and, in many respects, warm welcome. But it is obvious that many of its clauses will need very careful attention in Committee. That is certainly something that we on these Benches intend to give it.
§ 8.49 p.m.
§ Baroness Anelay of St. Johns
My Lords, I add my congratulations to the noble Lord, Lord Watson of Invergowrie, on his maiden speech. We have had an excellent foretaste of the expertise that he will bring to our debates, particularly because it is experience of life in the inner cities.
We on these Benches support the Bill's objective of reducing crime, especially youth crime. Tonight we heard details from my noble friend Lord Windlesham about the high levels of juvenile crime. I recognise that action is needed to tackle the causes of youth crime and to make young offenders accountable for the actions that they commit. We proved our commitment to this objective while we were in government, and in opposition we will continue to do so. Crime prevention is, and has been, at the heart of Conservative Party strategy in fighting crime.
Like the noble Viscount, Lord Tenby, I too have been a magistrate, and when day after day you have looked into the faces and thereby into the lives of those who pass through our courts, you find yourself committed to finding ways of reducing crime. If legislation comes before this House which effectively seeks to reduce crime it will certainly find me supporting it to the hilt.
590 However, I appreciate that, whoever is in government, there are always problems which have to be overcome in implementing major changes to the criminal justice system, so the comments I make today in winding up the debate for the Opposition are not intended to undermine the main objectives of the Bill but to raise questions about how best they may be implemented.
The Bill seeks to introduce a wide range of measures to tackle crime and, as often happens when governments seek to make a great number of changes in one fell swoop, it can look as though some details have not been thought through thoroughly. One example sprang to mind when reading Clauses 22 to 26 referring to racially aggravated offences. My noble friend Lord Henley pointed out earlier that the Conservative Party's position on this is clear: racism is wrong. Indeed, my noble friend Lady Flather pointed out that it is essential that public policy should reflect the displeasure felt by society against those who commit racist acts. Indeed, at the moment there are powers within the courts when sentencing to take racism into account when it is part and parcel of the reason why an offence has been committed.
When I sat as a magistrate the guidelines issued by the Magistrates' Association pointed out that racism in committing an act was an aggravating feature which had to be taken into account when assessing the seriousness of the offence itself. This Bill introduces racially aggravated offences. I question whether the court will have to specify how much of the sentence it imposes for such offences is for the racially aggravated part of the offence. If the extra penalty is not stated, how would the Court of Appeal deal with the matter later on appeal, and how would it know how to adjust the sentence if it were to be later determined that whoever had committed the offence had not done so in a racially aggravated manner?
My noble and learned friend Lord Mackay of Drumadoon put several questions on the matter of racially aggravated offences and the clauses with regard to Scotland. I never dare to stray into legal matters as they affect Scotland because I know I shall get it wrong; but I am sure that the noble Lord who is to wind up will be able to answer my noble friend's questions.
The provisions of the Bill significantly increase local government bureaucracy and create structures that will cross agency boundaries. There will be a youth justice board for England and Wales; there will be youth offending teams; and the local authorities and the police are required to formulate and implement a strategy for the reduction of crime and disorder in their area. Before formulating that strategy the responsible authority must follow all the directions contained within Clause 6(2), which I shall not read out at this late stage in the evening. But what occurs to me is that when they are publishing these results and keeping under review all these laudable actions that they have to take they will need proper resourcing.
As the Local Government Association points out in its briefing note, the key outstanding issue remains that of finance. Conducting a crime and disorder audit will 591 be a new activity for all authorities, for they assume that any previous audits will not count and all authorities will be starting from scratch. All authorities will need to have earmarked staff in place to administer this strategy. Ultimately, the system will have to be arbitrated in the negotiations for the 1999-2000 local government finance settlement.
The Association of Police Authorities argues in its briefing note to us that it is unrealistic to expect that community safety strategies will be immediately self-financing for the savings achieved. It is essential to have investment to pump-prime developments. Have the Government plans to provide this, and can they give us information tonight about them?
What about the implications for other statutory and non-statutory bodies? Clause 5(2) requires a local authority to co-operate with other specified agencies in drawing up strategies and also refers to other organisations prescribed by order of the Secretary of State. Those could include churches, citizens advice bureaux, charities and a whole range of non government organisations. I certainly hope that they would be involved at that stage. They have an invaluable contribution to make. However, we should not forget that in taking part they would also have a great cost to bear in terms of their management time. The Government say that in time the Bill will produce significant savings for the criminal justice system, but I believe that there are a great number of areas where enforcing the provisions of the Bill will have cost implications immediately, especially for local authorities.
There seems to be considerable confusion on the part of the Government as to what the real cost implications will be. Frankly, the sections on the financial effects of the Bill are completely inadequate. For example, Clauses 80 and 81 amend provisions for remanding children and young persons to secure accommodation and, in the case of 15 and 16 year-old boys, to meet the specified criteria, to prison or remand centre. What estimates have the Government made of the likely increase in such remands and their consequent costs? Clause 80 gives the Secretary of State the power to implement the provisions in stages. How long a period of phasing-in are we talking about?
Clause 82 gives effect to the Government's policy for early release of prisoners who are serving from three months to four years. When opening the debate the Minister referred to "selected prisoners", but human nature being what it is, no doubt all prisoners will apply to be considered for this early release. Why indeed should they not? What estimate have the Government made of the cost of preparing and producing the reports required—costs which will fall upon the Probation Service and the Prison Service? What extra sums will central government be allocating to their budgets to cope with the extra work, and just what will be the criteria for deciding whether somebody qualifies for early release?
The Government have said that they want to use this Bill to reduce delay in the criminal justice system. I and others on these Benches welcome that. It is something that we always tried to achieve while in government. 592 The noble Lord, Lord Williams of Mostyn, has sat as a Deputy High Court Judge, and he will recognise that there is always a tension between the need, on the one hand, to dispose of cases quickly and cost effectively and, on the other hand, to be fair to all parties, including the public. So when making changes we need to be aware of their impact, not only on the level of resources required but also on the role and functions of the courts.
I have concerns, which others have expressed tonight, about the implications of some of these clauses and some of the measures proposed in the Bill on the future of the lay magistracy. I hope measures are not being introduced which quietly, through the back-door, will reduce the value and the work carried out by the lay magistracy. I note the reassurances given recently by the noble and learned Lord the Lord Chancellor to the Magistrates' Association at its AGM. However, I would refer as an example to Clause 39, which gives metropolitan stipendiary magistrates the power to sit alone in youth courts. I ask why. I imagine the reason given is that this will increase speed and efficiency. That is something I have heard before in regard to other matters. But surely this is implying that magistrates should be used only if they are stipendiaries and eventually that lay magistrates will be bypassed.
I note that Clause 53 requires a police constable who warns a person under Clause 52 to refer that person to a youth offending team for assessment and, if appropriate, to make provision for him to participate in a programme to prevent further re-offending and secure his rehabilitation. I do not quarrel with the intention behind that, but is this in itself a way of providing a solution to a problem by imposing a method of treatment that would normally be seen as a court disposal but yet without ever getting the person in front of a court? It seems as though one is trying to obviate going to a court.
The noble and learned Lord, Lord Bingham of Cornhill, has tonight eloquently put the case—quoting from Clause 40—of the value of the lay magistracy. I thank him for the points that he made and merely endorse them in my own inadequate way. I also note that it is not only the magistrates' courts that are immediately affected by some of these changes but the Crown Court and that there appears to be a transfer of some duties from magistrates' courts to Crown Courts.
Clause 42 prescribes that there will be no committal proceedings for indictable only offences. At first sight that seems to be a sensible and cost saving measure. However, it means that paperwork will not be sorted out before it reaches the Crown Court. One role played by the magistrates' court has been to ensure that the paperwork served upon the defence is sorted out as far as possible before it reaches committal stage. That means that the Crown Court is able to get on with the job. Now people will be sent to the Crown Court before the disclosure of documents. It is a matter of transferring case paper management to the Crown Court. It also means that a person will have to wait months before he or she finds out what is the case against him or her. I hope that is not the case.
593 Crown Court judges will have to become case managers writ large—in a way that I suspect they are not quite used to at the moment—reviewing the progress of case papers and the readiness for trial far more than is currently the case. What resources have been allocated to the Crown Court to deal with this? Has a like sum been removed already from magistrates' courts' budgets?
I am aware that there is already provision in serious fraud cases and cases involving children, for example rape of a child, to transfer cases to the Crown Court without the need for committal proceedings, but before they are transferred the prosecution must prepare the case and serve it on the defence and certify that in its opinion there is a prima facie case against the defendant. Could that same principle be applied to indictable only offences?
In opening for the Opposition my noble friend Lord Henley pointed out that we greeted this Bill with a qualified welcome. It is not qualified because we object to the principles behind it of reducing crime and reducing delay in the court system. We, like others tonight, express our concern that some of the provisions in this Bill will simply not be achieved because of the way in which the Bill is presently drafted. Like others we look forward to the Committee stage and the attempts that will be made to improve the Bill.
§ 9.3 p.m.
§ The Solicitor-General (Lord Falconer of Thoroton)
My Lords, I am glad to have the opportunity to speak at the end of what has been a wide-ranging and interesting debate. I know that during the passage of the Bill this House will give the Bill its close and expert examination as regards the important measures which it contains. As everyone knows, the Bill has 96 clauses and addresses six particular topics. It covers a whole range of issues from racially aggravated crime to creating new methods of disposal for the magistrates' courts and makes fundamental reforms as regards procedure in the magistrates' courts. I thought it was a little churlish of the noble Lord, Lord Henley, to ask, "Is this all?" when he made his opening remarks. In our view, this is a sensible, wide-ranging Bill. It is ambitious and innovative. The one thing that could not be said about it is that there is not enough in it.
Before I turn to particular points that have been made on particular parts of the Bill, I mention four themes that have arisen in the course of this debate relating to the principles of the Bill. First of all, the point has been made that we should not forget the causes of crime. That was a point made by the noble Lord, Lord Rodgers, the right reverend Prelate the Bishop of Hereford, the noble and learned Lord, Lord Ackner, and a number of other noble Lords. We do not forget the causes of crime. If I may say so with respect, the noble Lord, Lord Rodgers, slightly down-played the welfare to work provisions and the social exclusion unit. In a Bill which is, as it were, a criminal law Bill and a criminal procedure Bill, one would not expect to address the causes of crime. That is a matter for some other kind of legislation and for government policy.
594 The second theme that emerged in the debate was that of reducing the prison population. It was said that that matter was not addressed by the Bill. With respect, I take issue with that proposition, advanced by the noble and learned Lord, Lord Ackner, the noble Earl, Lord Longford, the noble Lord, Lord Rodgers, and a number of others in the course of the debate. This Government take the view that a certain number of offences are serious and require custody as a response. That is a view that has been taken by successive governments. If one does not take that view, confidence in the criminal law is reduced. This Bill, however, attempts both to reduce offending and to reduce the prison population. As regards reducing offending, there is a large number of measures which are designed to offer the courts alternative methods of disposal which allow the court to provide an answer that the public will have confidence in and which are not custody. In addition, the home curfew proposals will, when fully operative, reduce the prison population by perhaps as many as 6,000. Therefore the question of the prison population is addressed to some extent both in terms of reducing offending and, it is hoped, reducing the prison population.
The third general theme is a concern that was expressed in particular by the right reverend Prelate the Bishop of Hereford; namely, that this is a Bill about containment, not prevention. Again I take issue with that. The Bill contains important preventive measures—for example, antisocial behaviour orders, sex offender orders and crime and disorder strategies. These are all important provisions aimed specifically at preventing crime. As the noble Lord, Lord Windlesham, pointed out, Clause 28 sets out for the first time the principal aim of the youth justice system to prevent offending by children and young people. The work of the inter-agency youth offending teams will focus on preventing offending and re-offending. The many parts of the Bill designed to get agencies in the locality working together to prevent crime are certainly designed to provide not containment but prevention. The Bill is designed to get the community as a whole working on strategies to reduce crime.
The fifth, and final, general point is one that came across in the remarks of many noble Lords; namely, the important part that voluntary agencies can play in developing strategies, dealing with crime and assisting the community to move forward. We entirely agree with that in relation to the Bill. The measures in Clause 5 in relation to the inter-agency panels that the Bill envisages include provision for permitting the Home Secretary to designate the bodies that will sit on those panels, and they will include various voluntary agencies. That is a provision with which I believe we all agree.
To turn to more specific points, it would be impossible, having regard to the wide range of matters raised in the course of the debate, to deal with every point raised. Many will be more suitably dealt with during the Committee stage. However, perhaps I may deal with a number of general themes that have arisen in relation to particular parts of the Bill.
595 First, in relation to the antisocial behaviour orders, a number of noble Lords indicated that they did not want the orders to become a means of getting at people who were simply eccentric. We entirely agree. That is neither the intention nor the effect of this measure. The purpose of the antisocial behaviour order is to deal with behaviour that is so intrusive as to make a real, unpleasant impact on neighbours and others affected by it. The noble Lord, Lord Watson of Invergowrie, made the point in an excellent maiden speech that, although it is difficult to define, one is certainly able to recognise such behaviour when one sees it. The right reverend Prelate the Bishop of Leicester referred to mediation and wondered if that might present a solution. We believe that in some cases it will be a solution; but it will not be in every case—and, if it will not he a solution in every case, then there is a place in the panoply of powers open to magistrates' courts for the antisocial behaviour order as a civil order.
To turn to the section on local crime strategies, the right reverend Prelate the Bishop of Leicester suggested that it was at the heart of the Bill. We see it as a very important means of getting the community working together on crime strategies. It is important to involve all the vital agencies on a cross-agency basis. As I said, we are keen to include all the voluntary agencies.
In relation to the antisocial behaviour order, perhaps I should have dealt with the point made by the noble and learned Lord, Lord Mackay of Drumadoon, as to whether people can be excluded from their own home under such an order. You can only be prohibited from living in your own home if it is established before the court that that is necessary for the protection of the public. That is the same test as applies under Article 8.2 of the European Convention on Human Rights and therefore would not offend against that convention.
The noble and learned Lord, Lord Mackay of Drumadoon, and the noble Lord, Lord Goodheart, asked whether the Bill has been "ECHR-proofed". We accept that, like other criminal justice measures, there may well be challenges to the legislation under the European Convention on Human Rights. We have accordingly considered the provision most carefully and have concluded that it is compatible with the convention. I believe that that answers the question of both noble Lords.
To turn to doli incapax, the noble Lord, Lord Henley, asked rather optimistically whether it was causing any problem at the moment. The position in relation to doli incapax was very well described by the noble and learned Lord, Lord Ackner, during the course of his remarks. The position is that at the moment it has to be proved that the defendant knows that what he or she is doing is wrong. That process is being used in a manipulative way in many courts by defendants, who say, "You have to bring a teacher, a social worker or some mature adult in order to prove this". It leads to difficulty with the calling of witnesses; it is hoped on the part of many defendants that this will make the Crown Prosecution Service bring its proceedings to a halt; it clogs up the youth court; and it is simply designed to make the proceedings more difficult. So the answer to the question is: yes, it is causing real difficulties. It 596 offends against common sense that you have to prove it. The possibility is not ruled out, where there is a child who has genuine learning difficulties and who is genuinely at sea on the question of right and wrong, of seeking to run that as a specific defence. All that the provision does is remove the presumption that the child is incapable of committing wrong.
To turn to the detention and training order, it was suggested by some noble Lords, in particular the noble Lord, Lord Henley, that the detention and training order would simply involve sending more young people to "academies of crime". The detention order is not about locking up more children and putting them into an academy of crime. It will replace the sentence of detention in a young offenders institution of 15 to 17 year-olds and the secure training order for 12 to 14 year-olds. It will not initially be implemented for 10 and 11 year-olds. It has two clear advantages over previous arrangements. It will give a clear incentive to young people to make progress. If they do well while they are in the detention centre they will be released early.
Secondly, there is scope for the Secretary of State to determine where offenders of different kinds should serve the custodial part of the order, allowing youngsters to go to the most suitable accommodation. So far from being an academy for criminals, making them worse, it is hoped that they will improve there and also that there will be a wider range of places that they can go to.
On parenting orders, concern was expressed by a number of your Lordships, in particular the noble Viscount, Lord Tenby, and the right reverend Prelate the Bishop of Hereford that some of the parenting orders would not be of assistance. Examples were given of parents who had completely lost control of their children. How unfair, it was said, that those parents could be made liable themselves for being unable to control their children after a parenting order had been made. Before a parenting order can be made under Clause 8 of the Bill, the magistrates' court must be satisfied that it will contribute to the reduction of offending or similar behaviour by the young person. If the position is that upon examining the facts it becomes clear that the parent will have no effect in relation to the child's behaviour then the provisions of the Bill are such that no parenting order will be made. So the concerns expressed by noble Lords and the right reverend Prelate in that respect may be misplaced.
We believe that there is a place for the parenting order. It includes providing counselling and guidance to parents. It will be ordered by the magistrates' court when that court believes it can help the parents both by giving them guidance and by making it clear to them that they have a responsibility for their children's offending behaviour.
On magistrates' clerks, the noble and learned Lord, Lord Bingham of Cornhill, made the point that he was extremely uneasy—and that may understate his concern—about clerks exercising judicial power. He rightly pointed out that in Clause 40 the Bill gives the Secretary of State power to designate to clerks the power that he can designate to single lay justices. The 597 position is that the clerks already exercise some judicial powers in relation to family proceedings. The judgment of what is suitable for them to do will obviously have to be made at some stage. The scheme will be piloted. We very much take into account the noble and learned Lord's constructive comments about what would and would not be suitable, and they would certainly be taken into account in any order made.
I move on from there to Clauses 80 and 81 on the committal to secure accommodation or prison of boys aged 15 and 16. Points were made from all sides of the House along the lines of, "This is a point that has caused this Government concern when in opposition. What is the present position?". The position is as follows. Remanding to prison 15 and 16 year-old boys is a longstanding issue which the previous Government failed to resolve. We are fully committed to ending prison remands for 15 and 16 year-olds as soon as we can. The courts will, subject to certain criteria and where a place has been identified in advance, be able to consider remanding direct to local authority accommodation those 15 and 16 year-old boys who are the most vulnerable in that age group, in addition to all 12 to 14 year-olds and 15 and 16 year-old girls. But it is not possible to do so for all 15 and 16 year-old boys while practical difficulties exist caused by lack of sufficient secure places.
While a building programme was put in place to provide 170 new secure places in local authority accommodation for that purpose, the number of juveniles remanded in custody has increased significantly since the building programme began, and prison remands of 15 and 16 year-old boys now range between 250 and 300.
The demand from that group alone would significantly outstrip the capacity of the local authority secure estate, even once the building programme has been completed, seven years after the provisions of the 1991 Act were put in place. We shall not lose sight of the problem but we believe that our proposals represent the most effective and practical way forward.
The noble Viscount, Lord Tenby, made a number of important points about local authority secure accommodation, including inspection and the need for more places. It is too late in the evening and I have spoken for too long to answer all the specific points that he made, but perhaps I may write to him with answers.
§ Lord Henley
My Lords, on that point perhaps this may be a suitable moment to ask the noble and learned Lord whether he would agree to this suggestion. He has been most conscientious in the replies he has given and has covered a great many points put forward by Members on all sides of the House. However, we would like the guarantee that he will answer by letter all the points which he was not able to deal with. He might then find that it would speed up the Committee stage process, since he said that many points would be more appropriately left to that stage. If he or his noble friend 598 could write to noble Lords on points not covered, then I and probably other Members of the House, including the noble Viscount, Lord Tenby, would be grateful.
§ Lord Falconer of Thoroton
My Lords, we would be willing to do that. We shall have to go through Hansard and see which points it will be appropriate to answer. But, in principle, we would do that and one hopes that it would shorten the Committee stage of the Bill.
In the light of that, perhaps I can deal with two further matters of principle that formed an important subject of debate. The first is that a considerable number of questions were asked and points made in relation to racially aggravated offences. It would be fair to say that there was a broad welcome for legislation on racially aggravated offences. Some people asked if it was necessary and, if not, why were the Government introducing it.
The Bill makes two important improvements to the current law. It increases maximum sentences in relation to racially aggravated crime. Also, it creates the offence of a racially aggravated crime. Those new crimes are in the Bill in order to underline the importance that this Government attach to stamping out racially aggravated crime. The effect of including the provision in the Bill and making it a crime is that it will compel the evidence gatherers in specific cases to focus upon the issue of racial aggravation in respect of those matters. We believe that that is a good thing and an important message to send to the world.
The noble Baroness, Lady Flather, asked why it does not apply to all crimes. Practically speaking, one cannot attach racial aggravation as an element to every crime. However, Section 68 of the Bill says that in all crimes racial aggravation will be a factor that can increase the sentence. We therefore believe that we have gone a significant way to meet what the noble Baroness, Lady Flather, would wish.
We note and take account of what the noble Baroness, Lady Amos, said: that is, that effective implementation is important. We agree with that and will bear that very much in mind. We believe that these provisions make a real difference; it is worthwhile to include them in the Bill and therefore we intend to proceed with them.
In relation to Scotland, I take on board what was said by the noble Baroness, Lady Anelay, and stray into Scottish law with considerable reluctance. We are aware that certain elements of the legal order—if I may call it that—suggested that there was no need for this Bill in Scotland. However, certain parts of the community in Scotland, in particular ethnic groups, felt that it would be worthwhile to introduce this provision into Scotland. Taking full account of the consultation we had, including the remarks of the noble and learned Lord, Lord Rodger of Earlsferry, we nevertheless decided that it was an appropriate course to take.
The noble Earl, Lord Mar and Kellie, felt that we should not be legislating at all in relation to Scotland because of the impending devolution Bill. That is one view. But, as it will be two years before the Scottish parliament is capable of passing any sort of Bill, that 599 seems rather a long time for Scotland to wait for any legislation of any sort. We therefore did not accept that view.
The other issue on which I should like to touch concerns sentencing guidelines. The noble and learned Lord, Lord Ackner, said that we should not interfere with the judges' discretion. We do not believe that we are interfering with the judges' discretion. It is good for consistency that judges give guidelines on certain issues. The structure of the Bill is such that, if the court does not think it appropriate to give guidelines, it is not obliged to do so. We are grateful to the noble and learned Lord, Lord Bingham of Cornhill, for saying that he is broadly content with the provisions in relation to sentencing guidelines.
I apologise for going on for so long, and I apologise for not answering every question that has been raised. Speaking for myself, I have found the debate immensely useful, immensely constructive and, having regard to the tone and quality of the debate today, I believe we will have an excellent debate at Committee and Report stages.
§ On Question, Bill read a second time, and committed to a Committee of the whole House.