Criminal Justice and Immigration Bill

My Lords, I follow the noble Baroness, Lady Kennedy, with admiration and complete agreement. There has already emerged in this debate more of a theme than can be detected in the Bill. That theme is, in fact, that the Bill has no theme. I call to mind those old ironmonger shops in the country, which used to be crammed and cluttered with an astonishing collection of items; so prolific were they that they were frequently suspended from hooks on the ceiling, nails in the walls or even less usual projections. Where they were to be found and why they were to be found there would be apparent only to the proprietor, and not always to him. This Bill puts me nostalgically in mind of those shops, whose chaotic arrangements seem now to have made them almost extinct. In the Bill, dangling from the same hook—it is labelled Part 7, ““Criminal law””—we find provisions relating respectively to the protection of nuclear facilities, loitering for the purposes of prostitution, hatred on the ground of sexual orientation and imprisonment for the purpose of unlawfully obtaining personal data. Part 11, on ““Policing””, provides a nail which is shared between provisions for ““Police misconduct and performance procedures”” and provisions for securing that police authorities may themselves be inspected. Lest we were to doubt whether this has anything to do with criminal justice, the Long Title, which takes up 11 and a half lines in inventory itself, assures us that it does. Right at the end of the Bill—as it were, at the very back of the shop—lodged behind the provision for special immigration status, we find provisions which even this heroic draftsman has been obliged to label ““Miscellaneous””. From making it unlawful once again for prison officers to strike, which is an example of the law taking away what the law has given, in this instance very recently, these proceed unblushingly to the consequences of persistent sales of tobacco to persons under 18. This is almost beyond parody, but there is more. Now the entirety of Parts 4 and 5 are to be withdrawn, for reasons which have been given to us by the noble Lord, Lord Hunt of Kings Heath, only this afternoon. I am afraid that they are being withdrawn for being unfit for purpose. This is a fundamental defect affecting the management of the Bill as a whole. This is not a proper way to legislate. It is certainly not an efficient one. Draft legislation ought to have a comprehensive theme and not depart from it. Efficient scrutiny in Parliament and outside depends on this principle being fulfilled. Without it, the legislation is unlikely to impinge fairly on those who it may affect. The Government cannot plead that they have not had enough opportunity to legislate for such matters; they have taken advantage of at least 35 previous opportunities. Nor can they claim in mitigation that each of these provisions received ample debate in the other place, however late in the day they were hung upon the Bill. As your Lordships now well know, Ministers took pains to use their majority to whip their supporters into denying debate to the elected other place, so that important provisions have never been debated at all. No more than 30 minutes was allowed for the Third Reading of a Bill which now, as we have heard, extends to 202 clauses and 18 schedules when it had begun with not much less than half that. Once again, it falls to this unelected Chamber to redress the balance, which I hope we shall. That will be for the remaining stages but, meanwhile, we encounter straightaway how this kind of legislative abuse impinges on Second Reading contributions: they have to jump about from item to unconnected item and can easily become more detailed than is appropriate for Second Reading. Bearing my own warning in mind, I turn first to Clause 10, as have other noble Lords, which will remove from magistrates’ courts the power to pass suspended sentence orders for summary-only offences. It is to be noted that Crown Courts will also be affected where such cases come up to them for sentence. In my view, the suspended sentence is a thoroughly admirable device. It marks the gravity of the offence while, at the same time, allowing the offender the chance, by his reformed behaviour, of avoiding going to prison and saving the taxpayer the expense of keeping him there as well. He has not got away with it because, if he reoffends, he can be made to serve the remainder of his term, with more for the latest offence. Now it is said by the Government that courts are using that option inappropriately, by preferring it to the non-custodial community sentences that the offence would otherwise attract. Therefore, the suspended sentence for summary-only offences is to be removed from them, even though it was only given to them by this Government in 2003. The Magistrates’ Association states that this argument is misconceived. For a suspended sentence to be available, the facts of the offence must have crossed what is called the custody threshold, so the choice for the court would not necessarily have included a community sentence. If it can no longer suspend a custody sentence, it may be driven to impose an immediate sentence of custody. Supporting the Magistrates' Association, the Police Federation estimates that a further 1,000 prison places may be necessitated. Is that what the Government want? The Sentencing Guidelines Council is available to correct any perceived mistaken approach. After all, we are dealing with a magistracy that is more comprehensively trained than ever before in its history. I hope that the Government will think again about that. I turn next to Clause 31, which removes the requirement that, before the Secretary of State may decide whether to recall a prisoner serving a life sentence or indeterminate sentence for public protection, he must, except in an emergency, obtain a Parole Board recommendation. I am not aware of any objective ground for dissatisfaction with the performance of the independent Parole Board in this context. I agree with what Liberty says—that Parliament should not agree to give Ministers this and similar unencumbered powers to deal with the sentences of individual offenders in individual cases. It is unsafe and it risks arbitrary decisions. That proposal seems to emanate from ministerial irritation, evidenced elsewhere in the Bill, at recent decisions by those who hold independent responsibilities in the criminal justice system. I fear that it stems from the desire on Ministers’ part to acquire unencumbered control for themselves—or more of it. That must be stoutly resisted. I am led, therefore, at once to the more complex provisions in Part 3, limiting the power of the Court of Appeal to overturn a conviction—noble Lords have already focused on that, and I am very glad of it—if it considers the conviction unsafe. That is in Clause 42. That stems with ministerial irritation with the decision of the Court of Appeal in a case already referred to, Mullen in 2000. The Court of Appeal has for years had jurisdiction to overturn a conviction on the single ground that it is unsafe. I acknowledge that, at first sight, there is some attraction in legislating to provide that a conviction is ““not unsafe”” if the court thinks that there is, "““no reasonable doubt about the appellant’s guilt””," but in also providing that the court is not required to ““dismiss the appeal”” if it thinks that it would, "““seriously undermine the proper administration of justice””," to allow the conviction to stand. However, I think that closer examination establishes that it is itself unsafe for Parliament to presume to instruct the Court of Appeal as to what is unsafe and what is not. We will need to look very closely at that clause, which the Government amended in Committee. It is essential to recognise three things. The first is that the state’s misconduct, for example, in securing the rendition of the appellant to this country, can have been irredeemably heinous. In Mullen’s case, the words were, "““so unworthy or shameful, that it was an affront to the public conscience to allow the prosecution to proceed””." We cannot claim to be honourable upholders of the rule of the law if we permit ourselves, by law, to profit from the product of such behaviour, which fortunately is rare indeed, but might not remain so if this possible sanction were removed. That would be a slope positively glacial in its slipperiness. Secondly, we should remember that it is important to recognise that the Court of Appeal has shown that an appeal will succeed only on proof of the gravest wrongdoing or procedural mistake, such as would have led the court in the first instance, had it known about it, to stay the proceedings. The court can, and often will, order a retrial when it overturns a conviction on the grounds that it is unsafe. Lastly, contrary to the impression given by the Government, we should remember that the facts in the case of Mullen stand alone. In reality, there is no problem. One has to stick to time, otherwise I would have liked to examine many more items that hang incongruously on their hooks and which need rigorous scrutiny in Committee. They include the provision on self-defence, which disarmingly states that it is only intended to clarify the common law, but which will create difficulties all its own. They certainly include the provision to authorise non-legal CPS staff to conduct serious trials in Her Majesty’s courts. However, the Government have produced a Bill that contains many good things, among many that are not. As a whole, these items resemble the ill assorted contents of a badly cluttered shop. If we are to improve that shop, we are going to have to spend a lot of time in it and that I look forward to.