Criminal Justice and Immigration Bill

My Lords, it is customary to offer thanks to the Minister for introducing such a long and complicated Bill. On this occasion, I offer my commiserations. We all know that it is not his fault and that he has to do as he is told. However, he must know that it is something of a farce. In this time of rising violent crime—and there is absolutely no point trying to deny that it is such a time—when the Government themselves are proposing that metal detectors be installed in schools to keep out knives and prisons are overcrowded, they bring forward a Bill like this, which has no coherence or theme and which has grown like Topsy since it was first introduced in another place. It has grown from one to two volumes, from 240 to 358 pages, from 129 to 202 clauses and, I think, from 23 to 38 schedules. The Minister comes before us today—the poor Minister—to say that they are proposing to remove two parts of that Bill, one of which was introduced only at Report in another place. Two parts—of 48 clauses—and, I presume, something in the order of nine of the 38 schedules will have to be struck out. This looks like chaos in legislation. As the noble Lord made clear, the Bill is wide-ranging in covering the criminal justice and law spectrum. We have the youth rehabilitation orders, sentencing and appeals. We were going to have the new Commissioner for Offender Management and Prisons for both the United Kingdom and Northern Ireland. However, we understand—because there is allegedly no consensus—that that is going to be taken out. I do not know if it is a lack of a consensus on our part which has meant that it needs to be taken out or whether it is some other lack of consensus. No doubt the noble Lord will tell us in due course. We are to deal with bail, legal aid and, in the criminal law parts of the Bill, with pornography, sexual offences, hatred on the grounds of sexual orientation, prostitution, self-defence and more. We have parts dealing with international co-operation, violent offender orders, anti-social behaviour, policing and clauses dealing with the question of whether prison officers can go on strike, as well as immigration issues. We must be grateful that the Minister did not go through the Bill clause by clause or we might have been here for a very long time indeed, but he has given us some idea of what is in the Bill, and I imagine that we will spend a considerable time on it when we reach the Committee stage. I mention all this to make it clear that, as I have said, there is a lack of theme to the Bill. There is no consistent message, but a whole series of measures—good, bad and indifferent, although I might have said good, bad and ugly. It is a sort of spaghetti western of a Bill. But we shall give all these parts close scrutiny in due course because some were barely discussed in another place; I shall get to those later on. The Minister himself would accept that we have a duty to look forward to what I suspect will be for him quite a testing Committee stage. In the presence of his colleague the noble Lord, Lord West, I hope that he will have some assistance from the Home Office and, looking at the sponsors in another place, possibly from Ministers in other departments such as the Department for Children, Schools and Families, which also seems to be involved, and no doubt the appropriate officials from all those departments. Like the Minister, I do not have time to go through the Bill clause by clause, but I do want to say just something about certain aspects of it. I am sure that other noble Lords will highlight other areas. However, I should make it clear that while on this occasion my noble friend Lady Hanham is not speaking at Second Reading, she will be joining us in Committee to deal with some of the Home Office aspects, particularly those related to immigration. I shall start by saying a little about youth rehabilitation orders, covered in Part 1. On this occasion I should like to offer the Minister a small degree of comfort by saying that I think we can give this measure some support, while expressing a considerable degree of concern about the potential inflexibility of the orders. We will need to know more about them and we shall certainly want to pursue some amendments to see how they fit together, particularly whether orders related to treatment for substance or alcohol abuse could be made compulsory. We need to make a detailed examination of this first part. In Part 2 we move on to dealing with sentencing. As the noble Lord made clear, this part will make some profound changes, such as doing away with the power of magistrates’ courts to suspend sentences for summary-only offences. I presume that will mean that slightly more people will go to prison, although prisons are already bursting at the seams. At the same time, the Secretary of State is to be allowed to re-release non-dangerous offenders who breach the terms of their licence, which I presume is designed to release pressure on prison numbers. We also have the rather peculiar idea that credit will be given for periods on remand on bail just as if the individual had been locked up. I am not sure of the logic behind that unless it is again to keep down the pressure on prisons. That, too, is a measure we shall wish to pursue in Committee. It is one which I think the noble Lord will find is not necessarily as popular with the public as he thinks. Part 3 covers appeals. As I understand it, the Government are making a profound change following the case of the Crown v Mullin, which would allow the Court of Appeal to rule that a conviction will not be unsafe if it is satisfied that the appellant is guilty of the offence. I gather that, in another place, the Government agreed to look at this again. As I understand it—the noble Lord and I have both received the same brief—the Bar Council, the Criminal Bar Association, the Criminal Appeal Lawyers Association, the judiciary, Justice, Liberty, the Law Society and the Criminal Cases Review Commission have all expressed their concerns. The Minister might accept that some movement or flexibility would by wise on the part of the Government. They might be well advised to consider the advice coming from such bodies. The noble Lord says that Parts 4 and 5 need not concern us. I look forward to the noble Lord’s amendment removing what now appears to be about a quarter of the Bill, along with—if he will give this confirmation—some nine schedules that seem to be dependent on Parts 4 and 5. When will we see those parts again, and in what legislation? Part 6 brings us to the remaining criminal justice provisions. Two in particular will need a considerable degree of scrutiny. First, Clause 104 deals with trial or sentencing in the absence of the accused in magistrates’ courts and seems to create a presumption that the court will so proceed in such cases. As they already have a discretion in law to do so, does the clause really add that much? Perhaps the noble Lord will be able to enlighten us in due course. That cannot be said of Clause 105, which I suspect will effectively remove the role of lawyers in some summary cases. Again, we want to hear more from the noble Lord on that point. Part 6 is also indicative of how the Government—particularly the Home Office or what is now the Ministry of Justice—legislate. On page 83, in paragraph 519, the Explanatory Notes state, for Clause 103—it was originally Clause 84 when the Bill first started in the Commons—that, "““Clause 84 introduces Schedule 22, which amends Schedule 3 to the 2003 Act””." The two subsequent paragraphs set out just what Schedule 3 of the 2003 Act was to do, what the amendments it made achieved, and what will happen in due course. Then we are told in paragraph 522 that, "““most of the provisions of Schedule 3 to the 2003 Act are not yet in force””." So here we are repealing something that never actually came into force. It seems a strange way to legislate. As I said before in an earlier speech on a Criminal Justice Bill, perhaps in time the Ministry of Justice will make improvements in the way they manage things, removed from the dead hand of the Home Office. I do not know if that will be the case; I somehow doubt it. No doubt the Minister and the noble Lord, Lord West, can look to these things and see what they can achieve in due course. In Part 7, we move on from criminal justice to the criminal law itself. We find a whole array of diverse and disparate matters, as the noble Lord assured us. We deal with extreme pornography, prostitution, homophobic hatred, self-defence, nuclear material and facilities, and new penalties for unlawfully obtaining personal data. The Government might also consider some new penalties for incompetently losing personal data—something that the Government seem to know a great deal about at the moment. The noble Lord, Lord West, smiles ruefully. Perhaps we can leave that for an amendment at a later stage. My first point on this part of the Bill is that there will be problems of definition—the Minister touched on this in his opening speech—and a need for certainty or, at least, a degree more clarity. Secondly—this is particularly true of the measure on hatred on the grounds of sexual orientation—there will need to be compromise by all concerned to achieve a balance between preserving freedom of expression, as the Minister put it, while seeking the appropriate protection that the clause seems to offer. We on these Benches will enter into debates on that and other clauses and seek that compromise. Thirdly, we need to examine these clauses carefully—I am thinking, in particular, of the clause on self-defence—and consider whether what the Bill proposes does anything at all; or is it, dare I put it this way, grandstanding, so that the Government can claim they are doing something when all the Bill does is clarify the existing law without adding anything. We certainly sought to add something to the law of self-defence. We still have some seven parts of the Bill to go but, before I finish, perhaps I may touch on Part 9, which deals with violent offender orders, and simply mention the others, which will get their time in due course. The Minister has, quite rightly, made his declaration on the front of the Bill that its provisions are compatible with Convention rights, as did his right honourable friend the Lord Chancellor in another place. I ask the Minister to have another look. Is he absolutely sure and happy that these provisions are compliant? I particularly refer him to Article 6 on the right to a fair trial and Article 7 on retrospective punishments. It would be wise of the Minister to take advice and have another look at that in the light of his statement on the front of the Bill. I also note what the Minister had to say about blasphemy and blasphemous liable, and his other comments about the Church of England. We look forward to that debate and, in the light of recent letters they have written on the subject, to some former distinguished most reverend Primates taking part in it. It is a matter that we can deal with in good time and in its proper place. I remind the House and, in particular, the Minister, of the large aspects of the Bill that were not debated in another place. There was virtually no debate on prostitution, although I understand that since the passage of the Bill through the other place, three Ministers, including the Solicitor-General, all went at once to inspect the situation in Sweden and to report on the conditions there. Why it took three Ministers I do not know; it may be that they thought there would be safety in numbers. I leave that to them. There was no debate in the other place on the powers of the magistrates courts; no debate on pornography and sex offenders; no debate on personal data, which I imagine we all want to discuss again—I look forward to the contributions of the noble Lord, Lord West, on that subject; no debate on miscarriages of justice; and no debate on powers to restrict the Court of Appeal, violent offender orders, causing nuisance on NHS premises or tobacco sales—I could go on. The noble Lord will get the drift of what I am saying. We look forward to a busy Committee stage and to ensuring that all these matters are debated, and debated fully.