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House of Lords

Thursday, 21st November 2002.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Derby.

National Minimum Wage (Enforcement Notices) Bill [HL]

Lord McIntosh of Haringey: My Lords, on behalf of my noble friend Lord Sainsbury of Turville, I beg to introduce a Bill to make provision enabling an enforcement notice under Section 19 of the National Minimum Wage Act 1998 to impose a requirement under subsection (2) of that section in relation to a person, whether or not a requirement under subsection (1) of that section is, or may be, imposed in relation to that or any other person. I beg to move that this Bill be now read a first time.

Moved, That the Bill be now read a first time.—(Lord McIntosh of Haringey.)

On Question, Bill read a first time, and to be printed.

Address in Reply to Her Majesty's Most Gracious Speech

11.6 a.m.

Debate resumed on the Motion moved on Wednesday last by the Baroness Turner of Camden—namely, That an humble Address be presented to Her Majesty as follows:

"Most Gracious Sovereign—We, Your Majesty's most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament."

The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, there can be no doubt that one of the main obligations of any government is to provide security for their citizens. That means providing protection from crime and the fear of crime. Public protection is one of the central themes of the gracious Speech. It is a key priority for the Government. We believe that public services must improve. That means better healthcare, better transport, better housing and better education. All of that is of little value for our communities, if they do not feel safe.

We have dedicated ourselves to fighting crime and anti-social behaviour since we took office. We make no apology for that. We have made some progress. For five years, crime has fallen overall, and, last year, the chances of becoming a victim of crime were the lowest that they have been since the early 1980s. According to

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the British Crime Survey, overall crime has fallen 22 per cent since 1997. Domestic burglary is down 39 per cent, and car crime is down 26 per cent. The street crime initiative has reduced the number of recorded robberies in the 10 worst areas by 25 per cent, compared with the same period last year. The safer communities initiative, launched in April 2002, has provided 20 million of extra resources to help local crime reduction partnerships to tackle crime locally.

The introduction of anti-social behaviour orders and parenting orders in the Crime and Disorder Act 1998 has been widely welcomed. On 12th November, Mr Frank Whiteley, spokesman on anti-social behaviour for the Association of Chief Police Officers and Deputy Chief Constable of Northamptonshire Police, said:


    "Anti-social behaviour is a blight in too many communities and neighbourhoods . . . The first priority for the police is to protect the public, and ASBOs can help us achieve that, by setting the boundaries of what is acceptable and seeing that the law is enforced".

We have much more to do. The people who most need the changes are those living in deprived communities and members of the black and minority ethnic communities. Black and ethnic minority people's experience of crime is the same as—in some cases, worse than—that of white communities. Ten per cent of black people are victims of personal crime in a year, compared with 8 per cent of white people and 7 per cent for Pakistani, Bangladeshi and Indian groups. The fear of crime is substantially higher than for their white counterparts, and not just for racially motivated crime; the rate is almost twice as high for crimes such as burglary, robbery and rape.

When we arrived in government, the view was that crime would rise and there was little that we could do about it. Levels of crime, the argument went, were pre-ordained by economic factors. Over the years, the factors relied on to explain the crime figures changed. Sometimes, they arose from the poorness of the economic situation, sometimes from its strength. Whichever might prevail as the critical factors, the important message was that crime was beyond the control of mere governments. Those predictions were wrong. I refer back to the figures that I quoted.

We will never eradicate crime. Economic and social factors certainly have their part to play in determining who commits crimes and when, but we do not accept the view that there is little that governments can do to reduce crime. By addressing both crime and its causes, we can make progress—progress that makes a real difference to individuals, communities and society as a whole. However, there must be some clear and accepted building blocks in the fight against crime: improved and reformed policing; real partnership between the criminal justice agencies, who must share goals and work effectively together; and a recognition that anti-social behaviour is as corrosive to communities as other crimes. People must have confidence that that, too, is being fought by the state.

The causes of crime must be addressed as well. That requires real partnership, in particular between the criminal justice system and the wider public, private

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and voluntary sectors. Much crime is now international—drugs, people trafficking and money laundering. International police and judicial co-operation is required to fight crime. Sentencing must focus more on reducing reoffending—on rehabilitation as well as punishment. Drugs fuel much crime. To reduce reoffending, we must address the drug cause of crime. If an offender has been offered and has not taken treatment, he should know that the consequences for him in the criminal justice system will become substantially worse.

The criminal justice system focuses too much on the defendant and too little on the victim. It must be rebalanced in favour of the victim. The court process, from charging to sentence, requires fundamental reform to make it more focused and effective in dealing with crime. It is vital, in reform of the criminal justice system, that certain principles should be regarded as sacrosanct. Those principles—the three fundamental principles on which our criminal justice system is based—are the independence of the judiciary; the presumption of innocence and the principle that a defendant can be found guilty of a criminal offence only when the state has proved his guilt beyond a reasonable doubt; and the use of jury trial as the norm for serious cases. Our reforms maintain those central principles.

Legislation, of course, is only one part of the reform process. It is an important part because it provides a framework, unblocks problems and sends clear messages. Just as important is helping and supporting the people who work in the criminal justice system in the job that they do. We must help them to think and act differently. That is why as much change as possible should go with the grain of those who work in the system. We have crafted our proposals with that in mind. We know that some lawyers have objected to a number of our proposals, but they have broadly supported and endorsed the need for fundamental reform. We hope that we can persuade them that the system can and should change for the better.

English law has never stood still. Its strength has always been its ability to adapt to changing times. Now is the time for change. The people who depend on the criminal justice system and the criminal law are the communities who look to it for protection. We will not compromise the three fundamental principles, but our communities expect a better performing criminal justice system, and they are entitled to it. That is the approach that we have adopted. We have passed Acts to promote partnership and to provide the police and local authorities with better tools to deal with crime and anti-social behaviour. We have passed legislation to reform police practices. We have passed legislation to make it easier to remove from criminals the proceeds of crime. We have passed Bills to fight terrorism. All of those Bills have helped us to progress towards our aims. Now is the time for fundamental reform of the criminal justice system to make it effective in the fight against crime.

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I turn first to the Criminal Justice Bill, which is to be introduced later today in another place. The proposals in the Bill will rebalance the system in favour of victims, witnesses and communities and deliver justice for all by building greater trust and credibility. They will address revolving door justice, whereby offenders are arrested, charged and bailed only to commit further offences. The Criminal Justice Bill will reform the criminal trial processes by making changes to the rules of evidence, double jeopardy, juries and appeals. It will put sense into sentencing through comprehensive reform of the sentencing framework. It will introduce provisions to address drug-related and juvenile offending and it will improve the treatment of victims and witnesses.

In all those criminal justice reforms, we aim to ensure that crime is effectively addressed without risking miscarriages of justice. We want to create a system which convicts the guilty, acquits the innocent and reduces offending and reoffending. The courts reform Bill will bring the administration of the courts below the House of Lords into a new, single organisation accountable to Parliament through my noble and learned friend the Lord Chancellor.

The gracious Speech made clear that the attack on anti-social behaviour will be among the Government's highest priorities in the current Session. Since we came into government, we have focused steadily on improving the prospects of the most deprived communities. Because those communities suffer disproportionately from anti-social behaviour, we have given special emphasis to measures that will help communities to fight back against loutish behaviour in all its forms—whether graffiti, noise nuisance, harassment, abuse, or any of the mindless actions that can make life intolerable for law-abiding people.

The anti-social behaviour Bill that we will introduce will build on well-laid foundations. I cannot yet give your Lordships a definitive list of its provisions, but I expect it to include measures to enhance the use of fixed penalty notices and anti-social behaviour orders; to address the problems caused by the misuse of airguns; further to improve the range of measures available to encourage parents of unruly children to face up to their responsibilities; to ensure that businesses whose activities contribute directly to anti-social behaviour contribute to the costs of policing to which it gives rise; and to improve our efforts to prevent the splattering of buildings with graffiti.

Of course, those legislative measures will not be the whole story. Only by ensuring that they and the measures already in place are enforced vigorously will we achieve success. We are setting up a new inter-departmental team in the Home Office that will bring to the fight on anti-social behaviour the project-focused approach that has already shown its value in the reduction of street crime. The anti-social behaviour Bill will strengthen the armoury of measures available to tackle that insidious problem. The Government will work tirelessly with our partners in the communities to ensure the success of that campaign.

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The Government are committed to combating corruption, which, left unchecked, can undermine transparent and democratic government and cause considerable damage to all aspects of commercial and public activity. Our Bill on corruption, based on recommendations of the Law Commission and of the Joint Committee on Parliamentary Privilege will send out a clear message to all sections of society that corrupt practices will not be tolerated. It brings together the various overlapping offences of corruption into a single statute and puts beyond question that the offences cover everyone, making the law more effective and easier to apply.

The publication of the Bill in draft this Session before its full introduction next Session is to enable full scrutiny and constructive discussion. We addressed the main international corruption issues in the Anti-terrorism, Crime and Security Act 2001 and extended the existing offences overseas. But the existing offences as a whole are in need of rationalisation and modernisation. That is what we intend to achieve.

Tackling international crime and terrorism requires better and faster co-operation with European Union partners. Crime, including people trafficking and drug trafficking, does not stop at national boundaries. The Crime (International Co-operation) Bill will significantly improve our ability to tackle serious crime across Europe. It will implement a number of European Union measures to which the Government have signed up in recent years, including those on the European Union post-September 11th road map or action plan. It will bring down the barriers to successful cross-border investigations and prosecutions. Its implementation of the mutual legal assistance convention, improving co-operation not just between judicial authorities but between police or customs authorities, will be of great importance in the fight against organised crime.

We have brought forward a Bill to modernise and simplify our outdated extradition laws. It is simply ridiculous that at the start of the 21st century we are trying to operate an extradition system that is largely unchanged from that of the 19th century. So the Bill will remove fugitives' current opportunities to raise spurious points time and again, which results in some cases taking five years or more to resolve. Such delays do nothing for Britain's standing in the world and are a great disservice to the victims of crime who are denied justice. Within the European Union, extradition will become a judicial matter rather than a largely political process. For the first time, all of our EU partners will be obliged to extradite their own nationals and those accused of fiscal offences.

If we are serious about fighting terrorism and other serious international crime, we must have in place modern extradition arrangements. That includes the European arrest warrant. The European arrest warrant will ensure that we will be able to get those accused of serious crime in Britain back to stand trial within three months. Despite the scare stories emanating from the Benches opposite, no law-abiding citizen need have anything to fear from the European

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arrest warrant. As the draft Bill we published in June makes clear, there are important safeguards for those here who are the subject of a European arrest warrant.

The issue of sexual offences and the sex offenders register was dealt with in detail in the Statement that was made on Tuesday. With the permission of the House, I shall not say anything further about that.

Since we came to power in 1997, we have been embarked on a methodical process of fighting crime and anti-social behaviour. The result has been an overall reduction in crime since 1997, but there is much more to do. Indeed, it is clear to everyone that the fight against crime and anti-social behaviour is not one to which there are a handful of simple solutions. It is a process which takes time and commitment and an understanding that communities expect us—rightly—to provide the law enforcement authorities and the criminal justice agencies with the appropriate means to fight the scourges of drugs, crime and anti-social behaviour. We hope that the House will join with us to enact those measures to provide the confidence and safety that the people of Britain are entitled to expect.

11.21 a.m.

Baroness Anelay of St Johns: My Lords, the legislative programme for this Session is indeed dominated by the six Bills from the Home Office and the Lord Chancellor's Department. On listening to the noble and learned Lord, Lord Falconer of Thoroton, reciting the huge successes of the Government in sweeping away crime from society, one wonders why they need so many Bills.

It feels as though we are stuck in groundhog day—the ever repeating day that one cannot escape—and facing the same government Bills, Session after Session; the same unwillingness to think through changes before forcing them through another place by guillotine and timetabling Motions and the Government then finding that they need to make substantial changes in this House when the Bill is thoroughly scrutinised, changes that are often made at a late stage.

Surely the Government should have learnt by now that legislation on criminal justice matters is very much a blunt instrument for changing social behaviour. The centrepiece of the programme is yet another Criminal Justice Bill, the 12th or 13th—perhaps unlucky 13—since 1997. Yet the number of offenders brought before the courts has remained static at 218,000 a year. Five years after the Prime Minister said that he would be tough on crime, a crime is committed every five seconds. The number of solved crimes has fallen by 18 per cent in the past five years; street crime has increased by almost a third in the past year.

Rebalancing the criminal justice system in favour of victims sounds a laudable objective—who on earth could complain about that?—but it will only work while the system itself is credible. If all it achieves is the punishment of more innocent people, who are then released at some future date to claim compensation for their ruined lives, the Government will have taken a

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retrograde step back into the 19th century instead of leading us forward into the 21st. In the mean time, it will have done nothing to help the victims of crime.

If the Home Secretary is tempted to be carried away by a desire to appeal to populism and dismisses too lightly the unintended negative consequences of that desire, it is the victims of crime who will suffer. As my right honourable friend Iain Duncan Smith said in another place last week,


    "One does not fight crime by undermining the civil liberties of law-abiding citizens while allowing thugs and criminals to walk free".—[Official Report, Commons, 13/11/02; col. 19.]

Overall, these Bills do not offer a long-term coherent strategy to solve the problem of crime. That is what our own policy proposals, which we have been developing and publishing over this year and will continue to do over the following year, would do.

Looking to the detailed proposals in the individual Bills, of course there are many that we will support, and support strongly. If any Bill escapes the trap of groundhog day, it is the Sexual Offences Bill, to which the noble and learned Lord referred briefly. I accept his reasons for not going into detail as we had an opportunity to do so on Tuesday. I simply take the opportunity to repeat our commitment to ensuring that we have proposals which meet the needs of those who are vulnerable to sexual abuse, whether they are those who have a mental incapacity or children. It is something that this House is well able to scrutinise. I was pleased to hear the noble and learned Lord the Leader of the House say that he anticipated the Bill would start in this place.

As to the Criminal Justice Bill, the Government have made much of their proposals for new sentencing options, those of custody minus and custody plus. Both are interesting, but it will be vital for them to be properly resourced. If the Chancellor of the Exchequer sees them as a cheap way of emptying our overcrowded prisons, he will be sorely disappointed.

Above all, we will need to look very carefully at the points where the Government trespass upon the ancient rights of the subject. Protection of individuals from miscarriages of justice is an essential part of the Government's duty. There will be much debate in this House over any restriction on jury trial; over moves to abandon the double jeopardy rule; and over moves to give foreign police the right to arrest people in this country for activities that are not crimes under British law.

If the double jeopardy rule is abandoned and police and prosecutors know that they can have a second go, that will do nothing to encourage them to ensure that the investigation is competent and exhaustive in the first instance. On the other hand, who can fail to be outraged when a defendant who has been acquitted of an offence promptly presents himself or herself to a Sunday newspaper and sells his or her story on the basis that he or she was acquitted and got away with the crime. That must offend all of us.

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Is there not a danger that the proposals on the admission of hearsay evidence put forward by the Government, and the disclosure of previous convictions, will create more unreliable convictions? As Liberty's Mark Littlewood said last week,


    "blaming fair trial protections for crime rates is wrong and misleads the public".

Less than 10 per cent of people brought to court are acquitted. He continued:


    "The real problem is that in over ¾ of all crimes—over 4 million a year—no-one is arrested".

We are very concerned at the Government's recidivism over jury trial. Yet again they are trying to force through Parliament plans to abolish it having been defeated twice in the past. They seek to get round objections now by abolishing trial for a restricted list of offences.

But the Government's principles seem to be grounded on quicksand. The first time round, when they tried to abolish jury trials it was for offences triable either way and for lesser offences; now they have gone the other way and want to abolish trial for the serious offences they list. We shall question in careful detail where is their logic for that shift of ground. To mix my metaphors, is this the thin end of the wedge for an eventual demand to abolish jury trials in further cases?

I listened with care when the noble and learned Lord said that jury trial should be a norm—one of the three key principles that the Government put forward. We believe that it is a norm that should not be breached, and we believe that the Criminal Justice Bill is about to do that.

I should have thought that by now the Government would have taken note of public opinion on this. As the Bar Council's Matthias Kelly said last week,


    "People trust juries, and want a justice system which features juries wherever possible".

I turn now to the Extradition Bill and the Crime (International Co-operation) Bill. The Crime (International Co-operation) Bill provides in the main a constructive framework for police and judicial co-operation and we look forward to working with the noble Lord, Lord Filkin, on these matters shortly. We agree that the processes for arrest and extradition need to be more streamlined and effective, but we do not want to give foreign police powers to search and arrest in the United Kingdom except for terrorism offences.

I read carefully the reports today in the press of comments made by the noble Lord, Lord Filkin, and others in the Government, with regard to the publication yesterday of the Crime (International Co-operation) Bill. We are concerned that, in hot pursuit, police from the European Union may come into this country armed and will not be under the operational control of our own police forces during the five-hour period. The noble Lord, Lord Filkin, said that there is a quid pro quo and that our police have rights in return, but I do not believe that that is a justification for what is being attempted in the Bill. In particular, the one

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border more than any other where perhaps one might want the facility is barred to us—that is, the border with Ireland.

We are deeply sceptical about the Government's proposals in the Extradition Bill. We accept that the authorities must have power to detain terrorist suspects in one country for crimes they have committed in another, but we will vigorously oppose any new powers to arrest and deport British citizens for activities that are not crimes in the United Kingdom, and any measures which compromise the presumption of innocence or habeas corpus.

I turn to the anti-social behaviour Bill, which the noble and learned Lord explained in some detail. We have concern that this seems to be a measure simply to seize the headlines. Of course society would like to support action to reduce anti-social behaviour—why not?—but the Government have already had two goes and failed. How can we be sure that they will get it right this time? Or will it be a case for them of three strikes and they are out?

Only 644 anti-social behaviour orders have been issued since 1999, despite predictions that 5,000 would be issued each year. NACRO has just published research into the effectiveness of the orders. It says that they are,


    "cumbersome, costly and difficult to enforce".

It discovered that the average order cost over 5,000 to enforce and took more than three months to obtain. More than one-third of the orders were breached within the first nine months. No child curfew orders had been issued at all, despite changes to the law raising the age of the child on whom they could be applied from 10 to 16 years.

Will the Government's plans for reducing anti-social behaviour actually work in practice? That is the real question. The major problem is lack of a clear definition of what constitutes anti-social behaviour. It is undesirable and unpleasant, but it is not always criminal.

It is important to tackle the problems of anti-social behaviour, but we need to find the reasons behind it and do something about them. The Government need to look again at how services are provided to children and families who require support before problems escalate and children are drawn into the criminal justice system along the conveyor belt to crime.

What is needed to counter such behaviour is a more holistic approach, combining enforcement with preventive measures tailored to individual local conditions. That way, and only that way, can we hope to get children off the conveyor belt of crime at an early stage.

Finally, I turn to the courts Bill which proposes changes to the administration of justice. Later today my noble friend Lord Kingsland will go into more detail. An efficient court structure is vital if we are to make the criminal justice system more effective and efficient. We shall want to examine carefully the plans to merge the magistrates' courts and the Crown Court into a single new criminal court. It is important that local decision-making is not altogether sacrificed to

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national control. We would not want resident judges turned into glorified court managers. Above all, we wish to be sure that the changes do not sacrifice effectiveness and fairness on the altar of Mr Brown's budgetary diktats.

This vast package of home affairs and legal affairs legislation will need to be painstakingly examined in this House so that the Government's claims can be subjected to proper scrutiny. Where we are convinced that the practical effect of the proposals will work well, we will support them—and support them thoroughly. But we shall not shirk from opposing headline-seeking measures if it is shown that they will do nothing to help the victim and everything to undermine the fairness of our criminal justice system. In seeking rightly to increase the efficiency with which we convict the guilty, we must never reduce the efficiency with which we acquit the innocent.

11.33 a.m.

Lord Dholakia: My Lords, once again we are faced with a number of Bills on criminal justice matters. There seems to be an insatiable appetite on the part of the Government to enact such legislation as an answer to society's ills. We have seen the introduction of criminal justice legislation in almost every Session of Parliament since Labour came to power, even before the previous legislation had a chance to bed down.

Some legislative measures are important and we will support those. Others will require detailed scrutiny to ensure that rights and liberties of individuals are not trampled on beyond that which is necessary. We have moved from the days when the Left and Right fought the battle to claim the high ground on criminal justice matters. The battle now is between liberal and illiberal measures. There must be something wrong when even the Daily Telegraph now stands to the Left of the Labour Party on criminal justice matters. Let me quote from the editorial of 14th November reporting on the Queen's Speech:


    "Even worse is the way the Government is prepared to shunt aside anything that stands in the way of this relentless centralisation. There can surely never have been such a comprehensive attack on the liberties and safeguards of the British legal system as that outlined yesterday. The curtailment of trial by jury, the admission of hearsay evidence, the abolition of the protection against double jeopardy, the proposal that previous convictions might be revealed to juries before they consider the verdict; the combined effect of these measures must be radically to rebalance the scales of justice in favour of the state and against the defendant. We will doubtless be told, as always, that this is justified by the need for 'joined up government'. But the whole point of the legal system is that it should not be a 'joined up' agency of the state but independent. It must contain within itself the essential checks and balances on which liberty depends.


    All past experience suggests that these measures will do little to reduce crime or enhance the effectiveness of the police but they will certainly increase the risk of injustice. The irony is that all this is being proposed by a government that constantly trumpets its commitment to human rights. For those who value civil liberty, this was a deeply depressing Queen's Speech".

The context in which we operate offers distinct solutions as to how we should tackle crime and criminality. We can stop mugging by locking up all the old ladies, but we do not do that. Instead, we can look at the way in which so many of our young people feel

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excluded from the process of meaningful citizenship and more purposeful opportunities. Simply relying on the criminal justice process may become counterproductive.

Of course we should be aware of opportunities and threats. For example, no one can dispute that a rising prison population threatens positive initiatives. Equally, we need a commitment to help and reduce social exclusion and crime. It is for these reasons that we intend to challenge the negative and encourage the positive developments, while all the time never forgetting people who would remain at the margins of our society.

On the political front there is now a growing consensus that the "tough on crime" posturing of the past decade has been harmful rather than helpful to the serious debate about crime. Tough talking on crime may well play with some of the electorate but rarely makes for good policy.

We often reflect public opinion in shaping criminal justice policies, but measure this against opinion polls that tell us that the public hold negative views of the system. People's expectations are far too great and the ability of the criminal justice system to deliver is strictly limited. Media hype on crime does not help. We should be talking up and not talking down the effectiveness of non-custodial alternatives to punishment.

Of course society needs to be protected from the anti-social behaviour of the few. Tackling this is high on the agenda of both the Government and local agencies. We can criminalise anti-social behaviour but it has little effect on the perpetrators. In essence, local partnerships together with local communities should be encouraged to identify local problems, develop strategies and action plans and evaluate their interventions to inform future practices. On-the-spot fines look attractive, but a good citizenship programme is more effective than any criminal sanctions imposed. The threat of custodial penalties has little effect on those who are socially excluded.

Let us look at some facts—and these are government figures. Ex-prisoners commit around 1 million recorded crimes each year—roughly one-fifth of the total—at a cost to society of 11 billion. Prisoners tend to come from and return to socially excluded backgrounds. Prisoners are 13 times more likely than the general population to have been in care as children and 14 times more likely to be unemployed. Some 60 to 70 per cent were using drugs before imprisonment. More than 70 per cent suffer from at least two mental disorders. Over half of male prisoners and more than 70 per cent of female prisoners have no qualifications at all. The vast majority have reading, writing and numeracy levels below those expected of an 11 year-old. The reconviction rate is running at nearly 60 per cent over two years. Almost half will be returning to prison in this time. We need to tackle the real causes of crime; that is, poor education, housing and employment prospects. This is where our measures should effectively be directed.

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The provisions of the Queen's Speech relating to criminal justice contain a number of helpful measures together with others which are of serious concern to many who are concerned with the quality of justice. The Government's overall aim for the criminal justice system is described in the Queen's Speech as,


    "to reform and rebalance the criminal justice system to deliver justice for all and to safeguard the interests of victims, witnesses and communities".

There is no doubt that in the past victims have all too often been insufficiently supported, informed, helped and compensated by the criminal justice process. But we must remember that it does no service to the victim if the wrong person is convicted of the offence.

We are concerned, for example, about the proposal to inform juries of the previous convictions of defendants. There are some limited circumstances in which defendants' past behaviour can be of genuine evidential value—for example, if it shows a unique modus operandi which is also part of the current offence—but in most cases telling the jury of past convictions runs the risk that defendants will be convicted because juries are thinking of what they have done in the past, even though the evidence that they committed the current offence may be thin. That is a recipe for injustice.

The proposal to abolish the double jeopardy rule in cases of serious crime is also a matter of concern. There are exceptional cases in which the emergence of later evidence shows with scientific certainty that a previously acquitted defendant must have committed the crime, the most obvious example being DNA evidence. But few cases are as clear cut as this, and there is a real danger that abolishing the rule could have oppressive results by hauling individuals back before the courts because of new evidence which is far from clear cut. Changing the rule could also provide a disincentive to the police and Crown Prosecution Service to get things right first time round.

We broadly welcome the proposal on sexual offences, including the redefinition of a range of offences and the tightening up of arrangements for sex offender registration.

We also fully support the Government's continued resistance to the dangerous arguments of those who argue for public disclosure of sex offenders' identities and whereabouts in a process of so-called "naming and shaming". There is no doubt that this would lead to vigilante attacks and drive offenders to ground, thereby increasing rather than reducing risk to the public. We agree with the Government that the better approach is increased supervision, treatment and multi-agency work with sex offenders to increase the safety of the public.

The proposal to introduce a new indeterminate sentence for serious violent and sexual offenders is welcome. This will enable such offenders' progress to be regularly monitored and reviewed during a prison sentence so that they can be released when, but only when, it is safe to do so. However, there is a strong responsibility on the Government to ensure that offending behaviour and treatment programmes are

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available to all prisoners in these categories, so that they have the opportunity to progress to a stage when they are safe to release under supervision.

I must emphasise that indeterminate detention is justifiable only because the offender has already committed a serious offence against the person and the available evidence shows that he or she poses a future danger to the public. Such powers of indefinite detention cannot be justified for individuals who have not offended. We therefore hope that when the Government bring forward their mental health Bill they will listen to the overwhelming weight of opinion from professionals in the mental health field and drop their proposal for the indefinite detention of non-offenders with serious personality disorders.

In principle we welcome the new "custody plus" sentence, which will ensure that short-term prisoners receive supervision on release. At present short-term prisoners receive little in the way of rehabilitation while in prison and do not receive supervision when they leave. Not surprisingly, they have a high rate of reconviction and they are responsible for much of the high volume crime, which is so distressing for many people on the receiving end. If "custody plus" is to be successful, it must be backed by resources, both for Probation Service supervision and for voluntary agencies to provide the help with accommodation, employment and mentoring which can make such a crucial difference to the likelihood of reoffending.

However, the "custody plus" sentence contains one serious risk: that courts will find it an attractive proposition for offenders who now receive community sentences. In a borderline case, magistrates and judges may currently opt for a community sentence rather than a short prison sentence with no post-release supervision because they feel that community supervision will do more to steer the offender away from crime. If in future they have the option to impose a short prison term plus a period of supervision, they may be tempted to opt for prison sentences in greater numbers. It is therefore crucial that the sentencing framework contained in the Criminal Justice Bill, including the guidance drawn up by the new sentencing guidelines council, strongly dissuades courts from passing short prison sentences.

The proposal to empower magistrates' courts to pass prison sentences of up to 12 months is likely to prove a mixed blessing. On the one hand, it will reduce waiting times on remand if offenders who would otherwise have been committed to the Crown Court are dealt with by magistrates instead. On the other hand, in some cases magistrates may pass prison sentences of nine or 12 months where Crown Courts would have imposed a community sentence or a shorter prison term—something which not infrequently happens now when magistrates commit offenders to the Crown Court for sentence.

Here again, the strength of the restrictions placed on the use of prison sentences in the new sentencing framework is of the greatest importance. It is also important that Ministers continue to argue strongly and publicly for a reduced use of custody, thereby

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reinforcing the recent welcome comments by the noble and learned Lord, Lord Woolf, on the evils of overcrowded prisons.

We will look carefully at the provisions of the anti-social behaviour Bill. There is an important place for fixed penalties for low level criminal behaviour. They avoid unnecessarily dragging minor offenders before the criminal courts, relieve the police and CPS of paperwork, save court time and avoid unnecessarily giving a criminal record to those involved in low level misbehaviour. There is a good case for using fixed penalties for a wider range of offences, including those of minor dishonesty and damage to property which currently clutter up magistrates' courts. However, we need to ensure that the range of behaviour, which is covered by fixed penalties in the Bill, is not unreasonably wide and disproportionate to the seriousness of the behaviour which is penalised.

Above all, it is important to recognise that law enforcement has only a limited impact on anti-social behaviour. Measures such as neighbourhood mediation, developing well structured youth activity programmes and the "acceptable behaviour contracts" pioneered by local authorities such as Islington are likely to be more effective in changing behaviour than any number of changes in the law. This is where we need to develop a strategy on the causes of crime, and put less emphasis on "tough on crime".

11.47 a.m.

Lord Mackenzie of Framwellgate: My Lords, I rise to welcome the provisions of the gracious Speech in relation to home affairs and criminal justice matters.

At the beginning of the 1960s I joined the police service as a young man. Since then I have listened to people saying how much better life was in the "old days", whenever that was. Like taxes and death, crime will always be one of the certainties of life. I saw my task for 35 years as being to reduce the effectiveness of criminals, either by preventing offences in the first place, which is the ideal, or by detecting the offender and bringing him to justice, thereby deterring him and others in the future from embarking on such anti-social behaviour.

As a society we have not succeeded in persuading that small number of fellow citizens that crime is wrong. Parents have failed; teachers have failed; the police have failed; the courts have failed; and the criminal justice system has failed. We live in a society where standards have fallen dramatically: authority is no longer accepted; the elderly in many cases are not treasured; young children are not cherished; and Parliament and politicians, unfortunately, are not respected.

The question is: does it always have to be like this, or is it possible to bring about a change and, more importantly, does that need more legislation? I have continually heard that the criminal justice system is unfair; that it favours the rich; that it favours the criminal; and that it ignores the victim. I have to say that I have some sympathy with that view and that is why I welcome the provisions in the gracious Speech.

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I believe that we can turn things round, but it requires a cultural change—a cultural revolution, if you like. We did it with smoking and we did it with drink driving. There seems to be a perception that we have great difficulty in controlling crime and yet if we look at the British Crime Survey, crime has reduced by some 23 per cent since 1997. Overall, of course, that is the problem. Recordable crime may well be reducing in many areas, but it is the quality-of-life issues—which do not figure in the statistics—that are often the problem. These are the very matters encompassed in the term "anti-social behaviour".

I have spent most of my working life dealing with this type of behaviour. It is almost exclusively the domain of the young. We do not hear of sadistic senior citizens biting off ears in brawls; we do not hear of "graffiti grannies" spraying the bus stand; we rarely hear of middle-aged muggers snatching mobile phones. But, of course, those of mature years are not immune from committing crime—no, no. Paedophilia is well known to continue into old age; fraud and corruption is invariably the province of the middle-aged; and, as we know, perverting the course of justice can even infect Parliament—even your Lordships' House. But we are talking about the type of anti-social behaviour which prevents the elderly and law-abiding citizens from going onto the streets at night, the drunken yobbery which frightens people and their families.

We need to take the streets back. That is what we pay the police to do, so we must give them the powers and our support. But their leaders, in turn, must remember that they are not social workers and get back to enforcing the law. They must have the will to confront bad behaviour, such as urinating in doorways, drunkenness and swearing, and throwing down litter and chewing gum. This does not necessarily mean that people have to be arrested or even summonsed. I do not want to live in a police state. But what the police need to do is at least challenge such behaviour. Unfortunately my recent observations tell me that the police are doing so less and less. I say that with reluctance.

Last month, for example, I was walking past Horseferry Road Magistrates' Court and saw five uniformed police officers standing outside talking. Perhaps they were waiting to give evidence. I had walked 100 yards further down the road when a youth of about 19 rode past me on a cycle, on the footpath, almost knocking me down. It was the kind of behaviour that we have probably all witnessed from time to time. I turned round with a wry smile, knowing that he was riding towards five uniformed police officers. Imagine my astonishment when I saw him continue on the footpath directly past the police officers without one of them taking the slightest bit of notice. What kind of message does that send out? He should have been stopped and ordered to use the road, as the law requires. That is the least that the police officers should have done.

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I mentioned those facts last week to a provincial chief constable. He said that he thought it was peculiar to the Metropolitan Police. I wish that that were true, my Lords.

Fixed penalties for such bad behaviour will be a godsend to busy police officers. But their leaders, chief officers, must ensure that they enforce the law. It is also an ideal task for street wardens and community support officers.

Moving to the general principle of re-balancing the criminal justice system, this is not a new campaign. Perhaps I may quote a former Commissioner of the Metropolitan Police:


    "What we know about trials in higher courts doesn't justify any complacency. Indeed, there is one fact I can mention which should be enough in itself to justify some kind of enquiry. This is the rate of acquittals . . . The English criminal trial never decides whether the accused is innocent. The only question is whether, according to the rules of evidence, the prosecution has proved that he is guilty—and this is not at all the same thing.


    "There must be a failure rate—we can't always expect to convict the guilty or never to prosecute the guilty. But in my opinion a failure rate of one in two is far too high".

He then went on to talk of some defence advocates. I quote:


    "We see the same lawyers producing, off the peg, the same kind of defence for different clients . . . witnesses suddenly and inexplicably change their minds. Defences are concocted far beyond the intellectual capability of the accused. False alibis are put forward. Extraneous issues damaging to police credibility are introduced. All these are part of the stock in trade of a small number of criminal lawyers. The truth is that some trials of deliberate crimes for profit—robbery, burglary and so on—involve a bitter struggle of wits and tactics, between the detective and the lawyer!"

Sir John Stevens? The noble Lord, Lord Condon? The noble Lord, Lord Imbert? No. Those are the words of Sir Robert Mark, who was commissioner in the 1960s, in his Dimbleby Lecture almost 30 years ago!

I make no apology for quoting his words. They illustrate that there has been, certainly during my many years of police service, an ongoing debate—quite rightly—on the efficacy of the criminal justice system in its efforts to protect our most vulnerable citizens from violence. I, for one, welcome the provisions in the gracious Speech dealing with double jeopardy and court procedures; indeed re-balancing the justice system itself. I believe that they go some way towards giving more support to the victims in society and I welcome them unreservedly.

11.56 a.m.

Lord Rawlinson of Ewell: My Lords, first, I effusively apologise to noble Lords and particularly to the noble and learned Lord, Lord Falconer, for not being present when he opened the debate. A sequence of unfortunate accidents prevented my arriving in time.

I must declare an interest. It seems to be implied by some commentators that opposition on the part of lawyers to forthcoming legislation which we have not yet seen will be due to the fact that the changes affect their personal financial interest. I declare an interest. Forty years of my life were spent, as a young man,

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defending, and, as Attorney-General, prosecuting, in the courts of this country, although, having retired 17 years ago, I cannot be said to have any interest in what is to happen in the future.

My opposition, like that of my profession, is due to anxiety about what may happen to justice. It is nonsense that double jeopardy, or the revelation of an accused's previous criminal record, or the abolition of jury trials in certain cases will affect the interests of lawyers who prosecute as well as defend. If, as I have read, this approach is acclaimed as a reform of the judicial system, it is in fact nothing of the kind. It is a reform of the criminal law that clearly shifts the balance against the citizen and in favour of the state. All criminal trials are issues between the state, with all its power and its might, and the citizen. One safeguard, which, having been created, has grown up and has worked for centuries, is that at least the citizen has had the presumption of innocence: he who accuses must prove the truth of his accusation.

My impression is that the Home Secretary and others believe that too often the courts have got it wrong in criminal trials. But who decides? Not the Home Secretary. Not the police. Not the media. It must be a court. It therefore appears to me that the Home Secretary is now changing the rules to make it easier to obtain a conviction. I should have thought that some of the recent miscarriages of justice might have made the Home Secretary hesitate before doing that. In the Daily Telegraph two weeks ago, he wrote:


    "Intimidated juries are a good example of how an adherence to tradition fails justice".

What does that mean?


    "Intimidated juries are a good example of how an adherence to tradition fails justice".

What tradition fails justice? There has always been tampering with juries. For scores of years, since the jury system began, people have tried to get at juries, and they always will. Neither the courts nor lawyers can do anything about it. It is for the police to protect juries and the system. The statement is absurd, if that is the level of the Home Secretary's thought about criminal justice reform.

I gather that there will also be proposals on double jeopardy. We must have strict limitations, otherwise they will encourage an existing vice: sloppy, casual preparation for prosecution. The proposals will affect very few, perhaps only a single case. I hope that reform is not being carried out simply on account of a single case. Hard cases make bad law. What is the purpose of revealing the accused's previous convictions? That information has been excluded so that a jury will convict, as they have sworn to do, on the evidence rather than on the principle of "give a dog a bad name". The Home Secretary is proposing a very risky novelty.

Changes will be welcomed by the police. I sympathise with the noble and learned Lord's comments. But the great failure has been the inadequate number of police available on the streets to look after jury members. There has been insufficient

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recruitment, including that of men and women of superior education, perhaps because of poor salaries, especially in the higher ranks.

Things seem to have gone wrong with the prosecuting authority. There have been too many slip-ups by the Crown Prosecution Service. Under the old system, there were prosecuting solicitors in towns and a representative of the Director of Public Prosecutions in each region. What has happened to the relationship between the Director of Public Prosecutions and the Attorney-General? In the old days, there were constant discussions between the two, sometimes several times a week. Any case involving a hint of public interest or sensitivity was brought to the attention of the Attorney-General. Some cases require the Attorney-General's leave; for example, offences under the Official Secrets Act. As the Attorney-General, I would discuss any such cases with the Director of Public Prosecutions, along with the Solicitor-General, my noble and learned friend Lord Howe of Aberavon. We would probably send for the police officer.

In the Burrell case, for example, I cannot imagine that under the old system the Director of Public Prosecutions and the Attorney-General would not have discussed the case at the time of the police report, well before the prosecution was formally launched. We would probably have sent for the police officer to discuss his report. The question must have arisen, having regard to the strangeness of the man, whether there was evidence to show any intent to permanently deprive.

I congratulate the present Attorney-General for his personal activity in the courts, by contrast to some of his recent predecessors. He has played a big part in the courts over the past few months and years. He has little experience of the criminal courts and none of the Solicitor-General role. My fear is that under the present system the Crown Prosecution Service is not acting as it was intended to. First, it is underfunded. In the police, we only get quality if we are prepared to pay a salary commensurate with what is expected in private practice. If the Home Secretary is serious about improving criminal justice, he does not need to make risky changes of hallowed practices and novelties in the criminal law. His job is to rattle the bars of the Treasury and frighten the Chancellor to produce more money for the investigatory service and the prosecution service. They must get more funds or the situation will increasingly deteriorate. The Home Secretary should not propose such risky novelties in the forthcoming Bill.

12.6 p.m.

Lord Dahrendorf: My Lords, I shall take you away from serious crime to minor trespasses, which may be committed in the process of legislation. The gracious Speech promises us 22 Bills, several draft Bills for pre-legislative scrutiny and other measures and proposals. It is a programme of considerable proportions, even before other measures are laid before us. I want to use the occasion of this debate to comment on the process by which Parliament, notably your Lordships' House,

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deals with this programme. I hope that I have chosen the right slot for such comments, given that the noble and learned Lords opening and concluding this debate for the Government are distinguished experts in matters of process as well as substance.

One of my conclusions as I enter my tenth Session in your Lordships' House, and incidentally my fifth on the Select Committee on Delegated Powers and Regulatory Reform, is that this House has become central to the legislative process. While the other place concentrates on either supporting or challenging government, and on maintaining the link between the political centre and the electorate in the constituencies, we spend much time on line-by-line scrutiny of Bills and on improving legislation brought before us. In a sense, we do the work that in other countries is done by committees of the first Chamber. We can do so effectively because we are prepared to devote time and expertise to the task. This we can do because we are not too distracted by politics in the narrow sense, let alone by constituency demands.

One may wonder whether such an arrangement can be justified in abstract constitutional terms. But, in so far as it works—in my view, it works rather well—it does so because we, as Members of the upper House, are not elected. We do not have to compete with the House of Commons in any way. Once the House of Lords is even a partly elected Chamber, a new balance of tasks will have to be found or else the legislative process will suffer. I shall leave this issue on one side for the moment; it will no doubt keep us busy for a good while in the early part of next year.

I shall make five necessarily brief, and, therefore, probably unduly simple, comments on how our legislative process works or might even be improved. There is first the statement of the obvious. Bills that come to Parliament should express the Government's intentions clearly and be technically flawless. It is a regrettable fact that major Bills have come to this House in a very imperfect state. Perhaps it is a compliment to your Lordships' House that the Government once again introduced nearly 2,000 amendments to their own Bills during the past Session. Some of those amendments were the result of debates in this House and of open discussions between spokesmen from all Benches. However, at times one feels that departments have had to work to target dates rather than to standards of quality. The result is that Bills are changed by their sponsors even at Third Reading. The Delegated Powers and Regulatory Reform Committee has to add to its considered comments on the original Bills at times unduly rushed results of the scrutiny of amendments. When a Bill is finally passed and given Royal Assent, it still has evident flaws and one can see another Bill on the same subject coming. This is not good legislation and it may not even reflect good government.

One remedy proposed—this is my second comment—is pre-legislative scrutiny. The gracious Speech explicitly states that the Government place importance on that method, which involves a committee of both Houses looking at draft legislation.

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Those who were involved in the case of the Financial Services and Markets Bill and the Communications Bill speak of it with satisfaction and many others have considerable expectations. However, it is clear that pre-legislative scrutiny can be applied only to a small portion of all legislation. It is no accident that the gracious Speech mentions 22 Bills but only three drafts for scrutiny. Pre-legislative scrutiny is time-consuming. Joint Committees are sometimes barely quorate and, of necessity, they leave many questions open. We should give the new method a chance, but not over-rate it.

Thirdly, there is the much less satisfactory result of imperfect legislation, which is to add towards the end of Bills a clause enabling the Secretary of State to fill in "incidental and consequential" gaps by secondary legislation. Over the years the House has tolerated such clauses, even if Bills stipulated no more than negative resolution of regulations promulgated on this basis. It is relevant that in the recent debates on the Nationality, Immigration and Asylum Bill, a more robust attitude was taken, especially when secondary legislation involved Henry VIII powers. The Delegated Powers and Regulatory Reform Committee will shortly put to the House a report on experience with such clauses. The Government have promised to comment on it and help find time for a debate in your Lordships' House. It would not surprise me if the outcome was a stricter scrutiny of enabling clauses for consequential provisions.

Fourthly, it appears that in the near future we are going to see more and more deregulation measures—or regulatory reform orders, as they are now called. These are intended to lift burdens. They are scrutinised by a committee of the other place and by the Delegated Powers and Regulatory Reform Committee. These orders raise a whole new set of issues. In some cases, they take the place of primary legislation. Indeed, rumour has it that the Government have encouraged departments that were unable to find a slot for legislation to use the instrument of regulatory reform orders instead. No doubt both Houses of Parliament will follow the process closely. Again, a general debate of the issue may be in place once we have more experience with regulatory reform orders.

Fifthly and finally, my noble friends Lord Dholakia and Lord Goodhart tried the other day to test the view of the House and the Government on "sunset clauses". The occasion, right at the end of the Session, was perhaps not propitious, but the subject deserves attention. The Delegated Powers and Regulatory Reform Committee was impressed when visitors from Australian state legislatures told us of the use of clauses that limit the assured life span of secondary legislation to five years and thus force the legislator to take a positive decision to renew it for another period. There might well be scope for the extensive use of sunset clauses on secondary legislation in particular. It would certainly be worth a try.

These are footnotes and no more to an important legislative programme. They are intended to help create good laws that are clear in substance and technically as nearly perfect as possible. I look forward to the comments of the noble and learned Lord the

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Lord Chancellor, but first, like all your Lordships, I look forward to the maiden speech of the right reverend Prelate the Bishop of Worcester.

12.16 p.m.

The Lord Bishop of Worcester: My Lords, I hope that it is in order for me to begin by saying that the 16 days that I have spent as a Member of this House have been an encounter with a spirit of welcome and assistance that went well beyond what I had been led to expect. I am most grateful not only to those noble Lords who have assisted me on numerous occasions, but particularly to the officers of the House, who seem to be naturally inclined to rescue wanderers who clearly do not know where they are going. I am learning gradually. There seems to be an instinctive recognition here that to the inheritor of an episcopal see established in the seventh century, coming here feels like entering a risky modern innovation.

Although my membership of this House derives from my being the current tenant of the see of Worcester, the three Archbishops of Canterbury, York and Wales, concerned lest idleness be an occasion of sin for me, have asked me to take on, on their behalf, responsibility for the episcopal oversight of the Prison Service. With that in mind, I have chosen to ask to make my maiden speech in this debate.

In that role, I succeed the right reverend Robert Hardy, the former Bishop of Lincoln, whose service to this House and to prisons, through his membership of this House, will be in the minds of many noble Lords. Your Lordships will wish to know that an occasion is being arranged for early December, to be presided over by the noble Lord, Lord Hurd of Westwell, at which he will be honoured. I am sure that that will delight Members of this House as much as it daunts me in thinking that I need to succeed him.

The modern Prison Service, by which I mean the development of a national and legislative framework for imprisonment since the 19th century, has had rehabilitation at its heart. Rehabilitation in the modern Prison Service is not a secondary object or something that you try to do while keeping people locked up, which is your main concern. It was at the heart from the beginning. That is why, historically, a prison was constituted by the presence of a governor, a doctor and a chaplain. It was also recognised that the contribution of faith and spiritual values to the rehabilitation of persons was indispensable. That precious tradition continues. It has, mercifully, been widened. We should be proud as a House of the contribution that is being made through the office of the Chaplain General and by his colleagues, the principal Roman Catholic chaplain, the senior Free Church chaplain and now the Muslim adviser and the representatives of other faith communities, to enabling all the faith communities of this country to play their part in creating a climate in which people can stand the best chance of being rehabilitated after conviction and sentence. In addition, I can say without fear of contradiction and without any sense of apology that the Churches in this country remain probably the foremost source of voluntary assistance in the process

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of rehabilitation—something about which I am not in the least complacent, but about which I am also very pleased.

The work of Mothers' Union branches in staffing visitor centres at prisons does a great deal to enable that very fraught environment to become as humane as possible. Members of the House who are familiar with the work of Alpha and of its courses may be less familiar with the fact that there are now between three and four hundred people whom Alpha volunteers have met at the prison gate, escorted into their communities, and enabled to find a place within local church communities. We need that kind of process if rehabilitation is to stay at the heart of the aim of the Prison Service.

I salute, and I hope all Members of this House support, the decency agenda that the present Director General of the Prison Service is pursuing with the support of his staff. It was a sign both of his recognition of the contribution of spiritual values and of our recognition of his contribution to the work of rehabilitation that he was invited by my predecessor Bishop Hardy to address the General Synod of the Church of England and is now preparing to address the first multi-faith, fully inclusive chaplaincy conference to be held next March. These developments are all extremely encouraging and merit our support.

So why do I feel it necessary to make any comment on this matter in the debate on the gracious Speech? It is because this rehabilitative heart of the aim of the Prison Service is under some considerable pressure, if not threat. The fact that we have approaching 73,000 people in our prisons and are now the foremost imprisoner in Europe indicates that we have entered a competition that we should not have entered. It also signals a victory about which we should not be pleased.

I am particularly concerned at the relative increase in the number of women and young people being imprisoned. Both of those trends seem to me to run the risk of preparing other young people—and, indeed, children—for a life of crime, and is an implication of the imprisonment of the parents and people of a young age.

It is not for me—and, certainly, a maiden speech is not the time—to enter into the debate that other noble Lords are clearly initiating about the detailed provisions in the gracious Speech. However, while such provisions are debated, it is important for me to take this opportunity to invite the House to have in the back, if not in the front, of its mind the implications of these measures as regards the overwhelming pressure of prison population on the very aims at the heart of the Prison Service.

It is extremely easy for people to be persuaded that there are simple remedies for the problem of crime. I have a good deal of local experience. I chair the chief officer group concerned with racial justice in the criminal and civil justice system in West Mercia. I also invited one of our most senior police officers to address our diocesan staff meeting on how he saw the future of his work. He made two comments that seemed to me to be of the greatest importance. First—

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this was shortly before an election—he said that he was very frightened of what he termed the political "auction" in toughness, which was likely to bedevil the campaign and lead people to suppose that there were simple remedies for the problem of criminality.

I mention the second comment of that senior police officer because I had intended to do so. However, I do so with some hesitation, lest it be presumed to be a criticism of a previous speech. He also said that he was extremely concerned about the rhetoric that was used in the debate about crime. In particular, although he accepted that the use of the language of "fighting" was very understandable under the pressures of the need to engage public sympathy, he believed that it liberated precisely those aggressive, angry and destructive instincts that lead in the long run to an increase, not a decrease, in criminality.

It is clear to all of us—indeed, that has been a thread in the speeches that preceded this one—that the reduction of criminal activity is a many-faceted task. The recent report of the Social Exclusion Unit on reoffending is an example of just how many considerations one has to bear in mind if one is seeking a reduction in criminal behaviour. So, in the many debates that will follow over the specific provisions adumbrated in the gracious Speech, I plead that we keep in mind the priority that is at the heart of our prison system. When seriously considering the implications of our legislation, we should keep in mind the three priorities of numbers, numbers, and numbers.

It is some 37 years since, as a raw priest in training, I sat in the chaplain's office in San Quentin prison on the west coast of the United States and heard a knock at the door. A man some three years younger than I came into the room and placed on the table a metal object that had been honed to a lethal instrument. He said, "You had better take this off me, or I'll use it". At that time I was new to that kind of situation. It was a very frightening moment, but the challenge was very clear. His challenge to me has remained a life challenge—a metaphor for what we need to do about criminality.

The task is about lifting burdens: lifting burdens from individuals who are led into criminality; lifting burdens from children when their parents are in prison for, perhaps, short periods—times in which rehabilitation is not really possible; lifting burdens from the victims of crime, who need to live in a safe, warm and caring environment; and lifting burdens from the hard-pressed and committed servants of the Prison Service, who are seeking to honour the heart of their endeavour but are finding themselves placed under perpetual pressure.

We on these Benches know that, as a society, we have no mandate to give up hope on anyone; and that redemption and rehabilitation are concerns that merit the attention of all of us. I speak as the bishop to prisons, as well as the bishop of a diocese in which there are four prisons that represent almost all of the challenges about which I have spoken. If there is any

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way in which we on these Benches can support a many-faceted, careful, rational, compassionate, and firm approach to the issue of criminality, we shall certainly wish to do so.

The noble and learned Lord, Lord Falconer of Thoroton, and other speakers, as well as the Home Secretary, have used the word "culture" to describe what needs to be changed if the issue of criminality and anti-social behaviour is to be addressed. We do need a culture—a culture of firm and demanding compassion. It has to be demanding so that we do not accept that anyone realises less than his or her potential, and compassionate because we recognise that all of us face considerable obstacles on that journey. I hope that the legislative proposals will be examined in the spirit of service to a culture of demanding compassion.

12.30 p.m.

The Earl of Listowel: My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Worcester in his maiden speech, which has clearly been well received on all sides of the House; it was wide ranging and generous. I am particularly grateful to follow him as I was formerly a resident in the Southwark diocese, for which he had responsibility for many years. He combines the knowledge and rigour of an academic—he was William Leech Professor of Applied Theology—with the experience of a practitioner ministering to his flock. I was particularly interested to hear him mention prison visitors centres and his work there. Prison visitors centres have been mentioned in the House several times recently, and I hope to hear much more from the right reverend Prelate on the subject. I was also interested in his comments on rehabilitation and the important role that the Church plays in that. Those remarks were very instructive and helpful, and I hope that we will hear much more from him on many future occasions.

I am grateful to the Government for this opportunity to debate their legislative programme. I shall concentrate my remarks on the issues of sentencing and children in prison. I was particularly pleased to hear the noble and learned Lord the Minister refer to the specific needs of black communities and the need to protect them from crime. About three months ago, the son of a remarkable Afro-Caribbean woman with whom I have been acquainted for some years—she is the chef in a hostel for young home homeless people and is called "Mum" or "Mother" by many of the residents—was murdered. He was in his early 20s. I therefore appreciate the Minister marking out that territory.

I also welcome the Teach First programme, to which the Prime Minister recently alluded, which will encourage the cream of graduates to work for two years as teachers in our toughest inner-city schools before taking up posts in business. In the past 10 years, Teach for America has been successful in encouraging 8,000 high-flying graduates to fill a similar role in inner-city American schools where many children qualify for special school lunch arrangements. Such programmes are an important part of efforts to create a more integrated society where the privileged and the

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excluded can better understand each other. Such programmes remind me of the Fabian fire of my forebear and the forebears of several other noble Lords. They remind me also of the important contribution made over the years by my noble friend Lord Northbourne and his involvement with Toynbee Hall and with young people.

Young people are very sensitive to fairness. They are more likely to become cynical and less respectful of society and others if they perceive others as motivated by short-term self-interest. The Teach First programme is likely to produce some good role models—a theme to which I shall return later. The programme will help persuade children of the need to follow acceptable social norms.

I also welcome the recently announced increased funding for child and adolescent mental health services. Over the next three years, funding will almost double, increasing to 450 million. If the money is efficiently used, I expect that it will decrease the number of young offenders and provide a better experience for those who do go to prison, reducing the likelihood of re-offending. Strengthened child and adolescent mental health services are an important part of the rehabilitative process to which the right reverend Prelate the Bishop of Worcester referred. If mental health is the Cinderella of the health service, then child and adolescent mental health is Cinderella's little known and forgotten sister. I am very pleased that the Government are giving the matter such priority.

The Government are to introduce legislation to reform sentencing arrangements. I understand that part of their objective is to reduce the number of people in custody and increase the use of community penalties. Such action could not be more welcome as far as children are concerned. Your Lordships may have read the children's rights report, Rethinking Child Imprisonment: Report on Young Offenders' Institutions, published by the Children's Rights Alliance. On page 65, it states:


    "Joseph Scholes hanged himself a month after his 16th birthday. Since his parents' acrimonious divorce some years earlier, he had allegedly suffered repeated sexual abuse by a relative, had received psychiatric treatment for depression and had tried to kill himself. He then went into the voluntary care of the local authority and was placed in a children's home. Four days after his placement, he joined a group of children from the home who committed a robbery with Joe acting as their lookout. Two weeks before his arrest, he slashed his face with a knife 30 times. The room was so bloody it had to be repainted. The young offender institution knew of his history and had him closely watched. But he seized a five-minute opportunity when a staff member went to a lavatory. The prison director Martin Narey is quoted as saying, 'We did everything we could for a boy who should not have been there'.


    "Kevin Henson had developed emotional problems following the death of his mother when he was 14. He had become seriously dependent on alcohol and had a number of convictions relating to alcohol abuse. His remand to custody on a charge of wounding was his first experience of prison. On September 5th he was refused bail. He had hoped to be granted bail to visit his mother's grave on her birthday which fell soon after. The visit to her grave was of particular importance to him and a ritual he had carried out regularly. The following morning, he was found hanging in his cell. He had been dead several hours. Notes and letters were left

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    expressing his desire to join his mother. A month before his death, the governor of the YOI, Kevin Dydin, had resigned in protest at conditions he described as Dickensian".

Many children in the young offenders estate have similar backgrounds. The noble Lord, Lord Dholakia, alluded to the high incidence of mental health disorders in the adult prison population. However, we often subject children who have experienced neglect in their families and possibly in local authority care to further neglect in the young offenders estate.

There have been important improvements with the introduction of the Youth Justice Board and the replacement of separate prison health provision with NHS provision. But the pressure of overcrowding is such that much of the improvement in the regime is undone, as the noble Lord, Lord Warner, has mentioned. It is as though the Youth Justice Board seeks to alight on a bus that accelerates away. In particular, and most alarmingly, children and young people are still not receiving an adequate assessment on their arrival in prison. Vulnerable children are not being spotted. I refer your Lordships to Vulnerable Inside: Children in Secure and Penal Settings, published by the Children's Society and written by Barry Goldson, lecturer at the University of Liverpool and director of the Youth Justice Research Unit.

I quote from an NRRI practitioner:


    "A lot of children we have here have committed a fair quantity of crime but they are not desperately serious, so much so that you wonder how they have met the criteria for custody. But they have been put down as persistent young offenders. As an example—I admit that it is an extreme example—I had a kid with learning disabilities who had been remanded for theft of toffees from a toffee jar and criminal damage to the lid of the jar".

The report also mentions the assessment process. The present situation is not good, according to Her Majesty's Chief Inspector of Prisons, with too many young prisoners arriving at YOIs with virtually nothing known about them. An NRRI practitioner states:


    "If I get completed, and completed well, an ASSET—

a form of assessment that should begin at the start of the child's engagement with the criminal justice system—


    "it gives very good pointers that I can follow further and expand upon. The reality is, though, that I rarely have all of the necessary documentation".

He refers at the end of the book to the,


    "complexities of assessment which are given short shrift within a mechanistic, indecently hasty and deeply problematic process. Despite the rhetoric, representations and associated claims made for each assessment process, the practical realities reveal serious defects".

I look forward with keen interest to hearing Her Majesty's Government's comments on reviewing sentencing arrangements in the light of what I have just said. Given Her Majesty's Government's evident concern in this area, I hope that there will also be an opportunity to consider the disapplication of the Children Act to the prison estate and whether that is still acceptable and to review Section 130 of the Criminal Justice Act 2001 that allows children to be

21 Nov 2002 : Column 495

remanded for petty theft when they are not a threat to others. That particular measure received scant attention as it arose at the end of a parliamentary year.

To conclude, I apologise for trespassing so long on your Lordships' time. However, I wish to return briefly to my theme of encouraging socially responsible behaviour and consideration for others as a complement to the stick of what is being offered now. I have spoken for long enough. I thank noble Lords for their attention.

12.44 p.m.

Baroness Kennedy of The Shaws: My Lords, I, too, congratulate the right reverend Prelate the Bishop of Worcester on a powerful speech. It reminded us of our responsibilities as a society to those in prison and to those who are particularly vulnerable. As someone who is also very committed to those issues, I look forward to working with the right reverend Prelate over the months to come.

I cannot pretend that I am content with the proposals outlined by my noble and learned friend Lord Falconer. Had he spoken of the sexual offences Bill, by and large I should have been able to pay him and the Home Office a warm tribute. But the criminal justice Bill, with all its infringements on civil liberties, is a piece of proposed legislation that I consider unworthy of this Government. Regrettably, it is yet another example of a strand in contemporary law-making that can only be described as authoritarian.

Why is it that people one would have expected to be liberal are losing enthusiasm for civil liberties? I believe that there are a number of reasons. First, in debates about civil liberties the emotional power is always with those who make their stand on the side of victims and who seek to combat crime. In many ways it is the easy position to take. It certainly is the populist position to take. We can all imagine ourselves as potential victims. Few people are as concerned to imagine what it might be like to be a young, law-abiding person falsely arrested. It is much easier to imagine what it is like to be burgled or mugged or raped. Indeed, some of us have experienced some unpleasant crime.

But that appeal to populism is one of the problems. Modern political discourse is increasingly impoverished with no public space for real discussion. If focus groups become the source for politicians' decisions as to how they should proceed and those focus groups say that too many people get away with crime, but without very much debate on what infringements on civil liberties might mean, it is very easy for government to decide to do something about the courts. As mentioned in this debate, changes such as those now being suggested will be as of nought in reducing crime but as of much in relation to what will be done to our system of justice.

The second problem for civil libertarians is that authoritarians always have the best rhetoric. They claim the songs and the flags and the role of public protector. They promise a comforting paternalism to which a frightened public can surrender. And there is a lot of fear around at the moment. There is talk of war.

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There is concern about terrorism. There is the fear of crime. The claim is that the Government will not allow us to become victims of crime, of terrorism or of other horrors that might affect our security. It is very easy for us to be deluded into thinking that these, the good guys, could mean us no harm. The rhetoric of modernisation can be very seductive. The rhetoric of rebalancing in favour of victims sounds so plausible.

The third problem for civil libertarians—and perhaps most significant of all—is that it is particularly hard to engage popular support for the protection of civil liberties because we are losing our historic memory about why we need such safeguards. Even that 60s generation who so vociferously campaigned for civil rights and liberties is often itself the author of many incursions, no longer able to identify those at the receiving end, perhaps because they seem particularly alien. Or perhaps it is just the onset of middle age—the onset of comfort.

In the main, though, the recent generation of middle class white people living in the West have not had anything directly affect their lives that creates the visceral feel for what those protections mean. Most have not felt the heavy hand of the state. But—and I emphasise this—the state does not change. The need for civil liberties is just as strong. Where you will find civic memory still alive is often among the Jewish community, the Irish, black people and other minorities. There you may still find a sense of what it is like to be powerless and marginalised, at risk of being caught up in a backlash where the law is your only shield. Unfortunately, even minorities who have in the past been at the receiving end of state abuse can be lured into the phoney yet enticing embrace of "us" as distinct from "them".

It is right that the law should modernise. The law must evolve; it must never remain a dead letter. The thing I love so passionately about the law is that it is a living, breathing entity. It should never be allowed to atrophy. That is why I have campaigned so long and hard for legal reform in the profession and the courts.

However, before one modernises anything, one must identify the founding principles, which are not negotiable. It is on those principles that the edifice is built. Our legal system embodies certain fundamental values. That may seem a trite observation; it is nonetheless true. We would certainly know if it were not the case. Today, happily, we often look for those values in formal codes of human rights and in our new Human Rights Act. But values are also to be found elsewhere—in legal rules, in presumptions surrounding procedure, and, most importantly, in certain fundamental concepts that underpin the basic approach of the law.

For example, the presumption of innocence; the right to jury trial; and the principle against double jeopardy. Those values are the accumulated moral wisdom of the law, which gives us our understanding of how the law should work. That understanding has grown up over time. This is not a conservative position. The legal conservative would probably see

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those values as static and protective of existing arrangements. A more radical view sees them as a means of achieving greater social justice and freedom.

There has probably never been a period in which these values have been safe from attack. Any sense of history enables us to see that the freedoms and decencies to which a humane society aspires have been threatened in one way or another. Some of those threats have come from crude tyranny in the shape of fascism or Stalinism. But bullies may dress in all forms of clothing and, as I have said before in this House, tyranny can come clad in an Armani suit.

Erosion of civil liberties can come stealthily. The crude threats are perhaps easier to identify. We can tell when someone wishes to shut down our freedom through outright bans or persecution. The stealthy threats are more difficult to identify and they may even be missed. They may also come veiled in the language of social protection, or material betterment, or in claims of rebalancing the system in favour of the victim. But they can be dangerous, and it is salutary to remind ourselves of these dangers when it is necessary to do so. It is necessary now.

Legal values are under pressure from those who see them as an obstacle to efficiency or who are looking for ways to save money or assuage concern about crime. One might hasten to point out that those objectives of efficiency, saving money and dealing with crime are laudable, but they must never justify the abandonment of civil liberties.

I apologise to the House. I have been given the great honour of being invited to give the Hamlyn lectures—rather important lectures in the law calendar—this year. The first of those lectures is tonight at six o'clock. I do not know how the debate will proceed, but I may not be present to hear the reply of my noble and learned friend the Lord Chancellor. I extend my apologies to all noble Lords attending the debate; I intend no discourtesy. I hope that your Lordships will understand if I am not here at the end of the debate.

12.54 p.m.

Lord Wakeham: My Lords, it would be impertinent for me to congratulate the noble Baroness on the eloquence of her speech. Instead I would like to congratulate the Government on the courage of their legislative programme, having listened to some of the noble Baroness's remarks.

I congratulate the right reverend Prelate the Bishop of Worcester on an outstanding and most interesting maiden speech. When I was Leader of your Lordships' House I was concerned that the Bishops' Bench did not seem to contribute too much to our deliberations. I sought out where I thought the centre of power was in the established Church—which was not necessarily most obvious—and said to its members that it was right they should encourage those bishops who were Members of this House to contribute on a wider range of subjects. Over the years I have been here that has been so. I am delighted that the right reverend Prelates have been reinforced with someone who clearly has many valuable things to say to us. We shall appreciate his contributions in the years to come.

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I cannot be sure how many Queen's Speeches I have had some responsibility for putting together, but it runs well into double figures. I hope that your Lordships will not find it amiss if I say that to me the Queen's Speech has a familiar ring about it. I hope that it will not run into some of the familiar problems, but I fear that it may.

I therefore want to talk about the process rather than the substance, and in particular to echo some of the points made by the noble Lord, Lord Dahrendorf. The Home Office seems to have—not for the first time—a little more than its fair share of the Bills in this Session. For as long as I have had any dealings with these matters, either in government or in opposition, it is a frequent and justifiable complaint—particularly in your Lordships' House—that Bills are not drafted as well as they should be.

That justification has substance and, of course, it did not start with this Government. Nor do I suggest it started with the government of which I was a member for many years. But I remember being told on one occasion that I was likely to be faced at legislative committee by one of the Law Officers telling us that a Bill was not fit to bring before Parliament. There was obviously no way I was going to allow a Bill to come before Parliament with such an endorsement, so we had to sort it out quickly. These problems have been going on for a long time.

Pre-legislative scrutiny will help, but we would make a great mistake if we thought it would bring about anything other than a marginal improvement. Your Lordships should not underestimate the inherent difficulties of persuading departments and Ministers to put forward their Bills in that form in time. Whenever we look at a legislative programme we should remember that, if this year is like any other, five significant Bills to be enacted by both Houses will arise out of circumstances or events. We know nothing of them at present and neither do the Government.

I want to talk about the difficulties with bad drafting. There are three reasons why Bills are drafted badly. The Leader of the House alluded to one in a remark earlier in the week. The first and most important reason is that Ministers do not make up their minds as to what the policy is in sufficient time for the excellent parliamentary draftsmen to do the job properly. That is squarely in the hands of Ministers. The business managers must encourage them to make up their minds in sufficient time for the work to be done properly.

The second problem is a tendency—in my experience, the Home Office is not the least offender in this regard—continually to add items to a Bill once it has started to go through the parliamentary process. Sometimes that inevitably has to be done but when I was a business manager I did everything that I could to resist someone's additional idea, which was usually ill-digested and badly thought through. I did not always win the battles but I certainly tried very hard. Ministers should resist that and business managers in particular should be extremely tough in that respect.

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The third problem is much more difficult to deal with. I was always in favour of getting the Long Titles of Bills drafted as tightly as I could to avoid additional amendments that widened the scope of the Bill, which often let the subject get out of hand. The government of the day had no intention of legislating in such a way, had not properly thought about the issue and quite rightly did not particularly want to. Problems therefore arose.

We are today discussing mainly Home Office legislation. In my experience, the Home Office has been one of the better departments; many others are considerably worse. The difficulty with Home Office Bills has not been the Home Office's capacity to draft a Bill but, as has already been made clear in our debate, the substance of its Bills. We shall certainly have some difficulty in that regard. I have not seen all of the details of the Bills and I shall not comment further. I hope that when we debate them, we remember the principles, which are not so much in question, and the detail. We should concentrate on that but our aim should be to ensure that the debate can be sufficiently constructive that we can agree to amendments from the Government and elsewhere in the House, that improve the legislation.

When I last considered this matter, I established that about 90 per cent of all decisions taken by government are not party politically controversial. The 10 per cent that are party politically controversial are usually high profile cases, which get plenty of publicity and are very important. Ninety per cent of the processes involving the government of our country are not party politically controversial. However, it is vitally important that those decisions are right. In so far as they involve legislative processes, the House has an important role to examine that.

I remember, for example, one occasion when I was Leader of the House. We had a Home Office Bill but every living former Home Secretary in your Lordships' House, from all three parties, came along and spoke against it. I had to move rather quickly and negotiate various changes. We got the Bill through and it was not emasculated; it was probably a better Bill. There was give and take on all sides and success was achieved. If I say to the Government that we have been here before, I do not say that in a spirit of criticism.

This process of debate and revision by two separate Houses with different responsibilities and composition is a key part of our present legislative arrangements. Some of us are worried about how those responsibilities will be discharged in the future. Great responsibility rests on the Joint Committee on House of Lords Reform. I, like the Government, look forward to considering its report, as it guides us to the future. I hope that what it and Parliament will do when they come to consider the report will be to recognise that the best may be the enemy of the good. There is going to be no solution that will command the overwhelming support of everyone. The only wise solution is some form of compromise, which may last for a long time or for a relatively short number of years. The royal commission which I had the honour

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to chair came up with a solution which was not the ideal of any one member of that commission; it involved an interlocking set of proposals in relation to which we felt we could make progress. Our proposals were designed to give everyone something but nobody everything.

I was partly flattered and partly embarrassed to find my name clearly spelt out in the Labour Party manifesto, which endorsed our report. While the Government accepted many of our proposals, the changes that they made were sufficient to make their proposals unacceptable to everyone. In some ways—I say this in the friendliest possible way—the biggest mistake that the Government made was to call their White Paper, "Completing the Reform". That sent a signal to those who did not think that the royal commission and the Government had gone far enough—that is, pretty well everybody—that that was the end of the road and that no further progress was possible. That, in my opinion, was a difficulty that we could have avoided.

My hope is that the Joint Committee will in the end recommend the sort compromise with which it would be possible for us all to live. That compromise may or may not last a long time but to assert that there is only one solution that will last for ever would be a big mistake. The committee should strive for the greatest measure of common ground, and further progress could be made when that has been digested.

1.6 p.m.

Lord Thomas of Gresford: My Lords, I declare an interest as a barrister who both prosecutes and defends in the criminal courts. I am proud to be hewing at the same coal-face with the same enthusiasm as the noble Baroness, Lady Kennedy of The Shaws. It is no coincidence that other toilers in the criminal law, on the Government Benches in the other place and in this House, are constantly in conflict with commercial lawyers who have no experience of the criminal law but who guide this Government and have brought forward this legislation.

We face yet another tweak of the criminal justice system, a huge legislative effort to break more basic principles of the common law in order to secure more convictions. The problem is not in the practice and procedure of the courts. Noble Lords will remember that the boast used to be that British justice was the best in the world. The problem is that of getting offenders before the courts at all. The Association of Chief Police Officers, which is, it seems, in conflict today with the Home Secretary, made it an art form to attack defence barristers. We had a whiff of that earlier from the noble Lord, Lord Mackenzie. If he has any concrete evidence of misdoing by defence lawyers, he will no doubt bring it before the authorities and ensure not only that they go to prison but that they no longer remain lawyers. We get much talk like that but no actual proof. It is the job of defence lawyers to expose the inadequacies of police investigation, and the standard attack, such as that we heard today, diverts attention from those very inadequacies.

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The document, Crime in England and Wales 2001/2002, published in July, demonstrates where the problem really is. It puts together for the first time the police recording of crime and the British Crime Survey results. There were, in that year, about 5.5 million notifiable cases. "Notifiable cases" does not mean all crime; much crime takes place without being reported to the police at all. Detection rates of notifiable crime have fallen to 23 per cent. Only 23 out of 100 notifiable cases are ever cleared by the police. Detection does not mean prosecution; it involves the clear-up rate. About 12 people in every 100 notifiable offences are prosecuted. Detection varies according to the offence. Seventy out of 100 cases of robbery were detected in 1988; today the figure is 30 out of 100. In sexual offences, the rate has fallen from 75 prosecutions out of 100 notifiable offences in 1988 to 50 out of 100 today.

The reforms that the Government are now bringing forward focus on Crown Court and jury trials. If we turn to the judicial statistics for 2001, we find that 91,160 cases arrived in the Crown Court—that is, one offender in 20 of the cleared-up cases. Of those 91,160 cases dealt with in the Crown Court, 56 per cent—or 51,000 defendants—pleaded guilty. Of those who pleaded not guilty, 25,000 were acquitted. But 10,000 of those were discharged by the judge, 2,500 by the jury on the direction of the judge and only 7,300 by a jury verdict—that is, 7,300 out of the 91,000 cases going to the Crown Court.

Mr Blunkett said on Wednesday that it is a travesty of justice when the guilty walk free. Seven out of 90 defendants whose cases reach the Crown Court are acquitted by a jury. How many of those results are travesties? How many guilty walk free? The police and the Crown Prosecution Service do get it wrong, spectacularly so at times. So where should the effort be placed in the fight against crime? Should it be devoted to tweaking around with the criminal justice system? Or should it be concentrated on the investigative process so as to arrest offenders and bring them before the courts?

The provisions in the legislation proposed in the gracious Speech which are unacceptable are, in particular, the revealing of criminal convictions to the jury, the abolition of the double-jeopardy principle and the abolition of jury trial for fraud. What the Government always seem to forget is the overall duty of a judge to see that a trial is fair. If prejudice is occasioned by the revealing of convictions, for example, it is the duty of the judge to counter that. That does not depend upon the human rights convention; it is deeply embedded in the law. If the Labour Party wants to alter that, no doubt it will fight the next election promising in its manifesto unfair trials in British courts in order to get more convictions.

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I was in court yesterday. I listened to a summing up. It so happened that the defendant's convictions and the periods that he had spent in prison had been revealed to the jury. The judge directed the jury in these terms:


    "Because the defendant has previous convictions, it does not mean for a moment that he committed the offence with which he was charged".

The judge was doing his job of ensuring a fair trial and ensuring that the jury considered the evidence and did not take into account the convictions they happened to have heard about during the case. What will happen now? Will the judge have to direct the jury thus:


    "In determining guilt, you may take into account the fact that the defendant has previous criminal convictions".

If he is not to direct in that way, what on earth is the purpose of revealing those criminal convictions to the jury? Shall we now change the jury oath? The noble and learned Lord, Lord Rawlinson, referred to the jury oath. Shall we now have:


    "I swear by Almighty God that I will faithfully try the defendant and deliver a true verdict according to the evidence and such prejudicial material which, thanks to the Labour Government, is now placed before me".

Will that be the jury oath in the future?

I turn to the issue of double jeopardy. Only in high-profile cases will such second trials be ordered. It will be impossible not to reveal to a jury the fact that a previous trial has taken place and impossible for the jury not to realise that the Court of Appeal has said that there is a strong possibility of conviction. If there cannot be a fair trial because of publicity of that kind, the judge, whose overall duty is to be fair, will have to discharge the defendant. There cannot be a second trial if the publicity is so strong. Convictions on a second trial will be so infrequent that they will not make a blip on the statistics. Yet every single defendant who is acquitted in the courts of this country will not be able to gain closure to the allegations which have been made against him. If this provision goes through, he will be looking over his shoulder for the rest of his life.

All that arises out of one case—the Lawrence case—which should never have been brought. The Crown Prosecution Service did its duty in advising that no prosecution should have been brought because there was not sufficient evidence. The judge, not the jury, did his duty in throwing the case out at half-time. It was not a jury that acquitted the defendants in the Lawrence case; the judge said that there was not enough evidence. In that case, the Attorney-General of the day should have intervened to enter a nolle prosequi in order to stop the prosecution—noble Lords will recall that it was a private prosecution—and to keep alive the possibility that the defendants could be prosecuted in the future should further evidence come to light.

Why was there not sufficient evidence in that case? It was because the police investigation failed. The inquiry found that it failed due to, among other things, institutional racism. With every sympathy for the

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Lawrence family—we all have that—they were ill-advised to bring a private prosecution. But the Attorney-General of the day was faint-hearted in failing to step in and stop it. How can the basic principle of double jeopardy, recognised by every civilised common law country in the world, be abnegated as a result of a case brought on such inadequate evidence that, as the judge found, it should never have reached the court?

It is said that DNA makes a difference. These days, DNA is sought in every single case. If there is any trace of DNA, a person who stands his trial in relation to that case will also have his DNA assessed. That is something which has no foundation. I draw an analogy with the right to silence. Your Lordships will recall that that was trumpeted by a Conservative Home Secretary in the Criminal Justice and Public Order Act 1994 as another way of securing more convictions. By Section 34 of that Act, juries should be directed by the trial judge to draw adverse inferences from the failure of a defendant to answer questions in a police interview—as if they did not do so anyway.

But the current practice—this is how it has developed; I speak from the coal face—as taught to solicitors and their clerks, is to advise "no comment" in interview and to hand in a voluntary self-serving statement at the point of charge. At one time, such a statement was inadmissible. But now the prosecution has to lead it because it is relevant to the question whether the statutory direction under Section 34 should be given. In fact, that voluntary statement suffices not merely to negate the drawing of adverse inferences from the defendant's silence at interview; as the statute reads, the judge has positively to direct the jury not to hold against the defendant the chanting of "no comment" at interview.

We have therefore reached a situation where what was thought would lead to more convictions has in fact operated in favour of the guilty who keeps his silence and against the interests of the innocent defendant who is anxious to blurt out his account. Because of that, through the various procedures adopted by the police these days and, in particular, phased disclosure—I shall not bore your Lordships with that—the interests of the innocent defendant are now at risk.

I want to say a word about jury trials. I have never understood what is wrong in having counsel explain a fraud case to 12 ordinary people in such a way that they and the public understand it and, when the person goes to prison, everyone knows why he is doing so. I believe that it is wrong to substitute the City of London's view of what is honest and what is dishonest for that of 12 people drawn by lot from the community. If one cannot explain how a person has been dishonest so that 12 ordinary people can understand it, then that person probably has not been dishonest at all.

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These provisions will be subject to the greatest scrutiny from these Benches. They are against civil liberties. They will be attacked.

1.19 p.m.

Lord Ackner: My Lords, I have considerable misgivings with regard to the Home Secretary's crusade to reform the criminal law and its procedures. I intend, however, at Second Reading of the relevant Bills, to make the odd timid and deferential intervention. It occurred to me that it might be more welcome to your Lordships if, instead of commenting on what the Home Secretary has suggested, I comment on what I think is an important omission from his programme.

Over 20 years ago, the Criminal Law Revision Committee recommended that where the defendant honestly believed that the force used was necessary and reasonable, but the amount used was objectively unreasonable in the circumstances believed to exist by the defendant, the verdict should not be murder but should be manslaughter—sometimes referred to as the overreaction defence.

One of the advantages if this was adopted would be that the discretion as to how long a person should be given by way of punishment would be meted out by a judge and not by a politician. That suggestion was adopted by the Law Commission in its draft criminal code and was recommended to your Lordships' House by your Lordships' Select Committee on Murder and Life Imprisonment, on which I had the privilege to serve.

Your Lordships may have an indistinct recollection of the Irish case of R v Clegg, who, on 30th September 1990, when serving as a solder with the Parachute Regiment, shot the driver of a stolen car and one of his passengers who drove through a control point. He was convicted of murder on 4th June 1993 after a trial before Mr Justice Campbell without a jury.

His appeal to the Court of Appeal of Northern Ireland was dismissed, the Court of Appeal holding that the firing of the shot that killed the passenger was, on the facts found by the judge, a grossly excessive and disproportionate use of force. In the course of its judgment, the Northern Ireland Court of Appeal recommended that the law should be changed by the adoption of the recommendation of the Criminal Law Revision Committee.

The Judicial Committee of your Lordships' House, which dismissed the appeal, again endorsed that recommendation, with my noble and learned friend Lord Lloyd, who is, I am delighted to see, in his place, saying that the recommendations were all one way.

Your Lordships will doubtless recall the case of Martin, a somewhat eccentric farmer who in April 1999 shot and killed a 16 year-old burglar and wounded his accomplice when they broke into his home. He was convicted of murder. In his appeal to the Court of Appeal, he introduced new psychiatric evidence that he was suffering from "an abnormality of mind" at the time of the shooting. He was diagnosed as having a long-standing paranoid personality

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disorder exacerbated by depression, although the consultant psychiatrist who gave evidence at the trial found no evidence of depression or mental illness. The Court of Appeal accepted the new evidence and a verdict of manslaughter was substituted for that of murder, and he was sentenced to five years' imprisonment.

In the course of his judgment, the Lord Chief Justice said that there were suggestions that the law was in need of change, but that this was a matter for Parliament and not the courts. That was an interesting reservation because, in April 1996, an inter-departmental review of the law on the use of lethal force in self-defence, or the prevention of crime, set up by the Government, duly reported. It dealt with various options for change, including that proposed by the Criminal Law Revision Committee, to which I have referred. This was dealt with in what I respectfully submit was a confused manner in paragraphs 37 to 45.

Had the alternative of manslaughter been available, I have no doubt that the enormous outcry in favour of Tony Martin would not have occurred. He was convicted by a verdict of 10 to two. Mr Hague, the then Leader of the Official Opposition, referring to Martin's conviction said that it triggered,


    "an explosion of anger and resentment among millions of law-abiding people who no longer feel the state is on their side".

In a leaked memorandum, Mr Blair cited the Martin conviction as an example of how the party was becoming "out of touch" with public opinion.

Mrs Gillian Shephard, a Member of the Conservative government's Cabinet when they were in power, said that the case had brought the biggest postbag of her political career—more than 1,000 letters—and that,


    "the overwhelming number of responses I had were in favour of Tony Martin and saying he was right to defend himself".

Quite recently on 17th October, Barry-Lee Hastings was cleared of murder but found guilty on a majority verdict of 10 to 2 of manslaughter. He stabbed to death a professional burglar who had a string of convictions, including one for attacking a person with an axe, and was on the run from the police when he broke into the flat in Tottenham, north London, where Hastings' estranged wife and their two children, both aged under four, lived. Hastings was on a visit to his family.

As Hastings approached the flat, he saw Williams in an upstairs bedroom and found the front door had been forced. He said he was about to call the police when he thought he heard his daughter crying out and so went in. He claimed that he picked up a knife intending to frighten the intruder, but when he was attacked by Williams in a darkened hall waving something in the air, he stabbed him in the back some 10 times. In the press this case was compared with that of Tony Martin and the possibility of an appeal was mooted.

As a matter of law, it might well be contended that Hastings was fortunate not to be convicted of murder, since it would appear that he intended to inflict serious bodily harm upon Williams and used excessive force in

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so doing. This Government have repeatedly stressed that the law must not only be just but must be seen to be just. I accordingly trust that in the extensive programme of modernising and amending our criminal law, the Government will find time for this amendment, which has the impressive support of those to whom I have referred.


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