Criminal Justice and Immigration Bill

My Lords, as my noble friend Lord Thomas of Gresford said, here we are again repeating the annual cycle of criminal justice and immigration Bills. There is no respite and I suspect that this pattern will continue in future years. This is at a time when the police are in conflict with the Home Office regarding their pay. Prison officers have not hesitated in taking industrial action. The Probation Service is at breaking point in some areas and demands adequate resources. The future of NOMS is still in question and, more importantly, police and court cells are still being used to house some prisoners, because of overcrowding. In my 30 years of involvement in various parts of the criminal justice field, I have never come across such a sorry state of affairs. I shall concentrate on two aspects. The first is about immigration. I am tempted at this stage to deal with Part 12, which relates to special immigration status. It affects those who have committed terrorism or other serious criminal offences and who cannot be removed because of Section 6 of the Human Rights Act 1998. I shall of course leave that to my noble friend Lord Avebury who will have a lot to say on that subject. My concern relates not to what is in the Bill but what we have failed to rectify. As noble Lords will know, Prime Minister Gordon Brown has just returned from his visit to India. This is his second visit. I am aware that during his previous visit, the Prime Minister of India discussed with him the impact of retrospective changes affecting migrants and their families who entered the UK legally from the Indian subcontinent under the Highly Skilled Migrants Programme (HSMP). The Joint Committee on Human Rights in its report on the HSMP stated that these retrospective changes were unlawful in ECHR law. The Human Rights Commission and the then Commission for Racial Equality stated that the changes were discriminatory and breached Section 71 of the Race Relations Act. Why do I mention this? The effect on individuals has been catastrophic. We are criminalising groups of people who may be reluctant to leave the United Kingdom. There are those who have returned to India with their families and have lost everything. They felt that the British Government had cheated them. The UK Government unfairly went back on their promise that the HSMP would lead to settlement, but the retrospective changes made that impossible. They have nothing left in their home country—no jobs, no assets, no hope and in some cases not enough money to travel back. These are qualified people. They were deemed to have skills which were required here. To retrospectively alter their status and ask them to leave is inhuman and does not fit with the liberal values we espouse. If we are concerned about the impact of the Human Rights Act on those who damage this country and wish to remove them—as we intend to do in this legislation—should we not, by the same token, meet our obligations to those whom we trusted under our Highly Skilled Migrants Programme? This was the golden opportunity to rectify this shameful decision, but it does not form part of the Government’s legislative programme. We on our part would certainly wish to explore amendments in Committee to see if this gross injustice could be rectified. I come to the second part of this Bill, which concentrates on criminal justice matters. I do not wish to sound disgruntled because the Bill may to a small extent help to reduce the prison population. To me, any criminal justice legislation must be measured against its impact on our prisons and its unacceptably high population; and my noble friend Lord Thomas of Gresford has pointed out our serious concern as to whether that reduction would happen in reality. I have no doubt that the Bill includes a number of provisions that will help to slow down the rapid and alarming increase in the prison population. The most significant of these are the badly needed restrictions on using the indeterminate sentence of imprisonment for public protection. The legislation introducing this sentence was so badly drafted that it has led to large numbers of offenders being given indefinite sentences who are far from being the dangerous offenders for whom an indeterminate sentence is appropriate. Half the offenders who have received these sentences have been given tariffs of 20 months or less, showing that their offences are at the less serious end of the spectrum. At least the Bill will limit these sentences to cases involving tariffs of two years or more and will remove the presumption that indefinite sentences should be passed simply because the offender has a previous conviction for a similar offence. Let us hope that this will help to prevent the inappropriate use of these sentences for offenders whom it was never envisaged would receive them. The Bill also stipulates that non-dangerous offenders who have breached their licences should be recalled to prison for a fixed period of 28 days. This may help to prevent the lengthy and disproportionate imprisonment of offenders who have been recalled for missing, or being late for, probation appointments. But again, as my noble friend Lord Thomas of Gresford pointed out, there must be judicial oversight, rather than executive power exercised by the Home Secretary or the Justice Minister. The rising number of prisoners being recalled for breach of licence has put increasing pressure on the prison system—they now make up 11 per cent of the local prison population. Although I welcome the Bill's provisions on this point, I would like to see the Government go further by introducing a graduated scale of punishment for breach of licence, with prison being used only when less severe penalties have been tried. Even more important would be to ensure that there is adequate machinery to monitor the outcomes of such punishments. The Bill provides for the restriction of suspended sentences to indictable offences and those that can be tried either way. There is evidence that courts too often pass suspended sentences where they could have passed a community sentence. Even where courts use the suspended sentence properly to replace an immediate jail sentence, they often fix suspended periods of imprisonment longer than the immediate prison sentence that they would otherwise have passed. If the criminal reoffends and the sentence is activated, the offender is imprisoned for longer than if he had received an immediate prison sentence in the first place. Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences. The new sentence requiring convicted prostitutes to attend three meetings with a supervisor has been controversial. On the one hand, this would be a better option in many cases than the self-defeating sentence of a fine, which drives the offender straight back to the streets to earn more money to pay the fine. In some cases the new sentence could steer prostitutes towards services that will help them to sort out the drug and housing problems that are usually driving them to solicit. On the other hand, it would be unfortunate if the new sentence led to a procession of women, who have failed to turn up for meetings with supervisors because of their chaotic lifestyles, being brought back to court and jailed for failure to attend meetings. Some of the Bill's provisions could help to provide more appropriate ways of dealing with young offenders. It is important that we have an effective probation service, with measures that identify a way forward. One is the extension of conditional cautions to young offenders aged 16 and 17, which provides an additional means of diverting young people away from the formal criminal justice system. Also welcome is the requirement that courts passing an anti-social behaviour order on a juvenile must consider imposing an individual support order alongside the ASBO. But do we have the resources and the probation structures to ensure that this will happen? One of the main problems with ASBOs is that they are entirely negative measures. They prohibit specified behaviour by the young person, but provide no help to the offender or to their family to change that person's behaviour. Individual support orders can provide a degree of help with the problems that contribute to anti-social behaviour, but courts currently use them in only a small proportion of cases. The Bill should help to increase the number of cases in which positive help is provided to young people who are the subject of an anti-social behaviour order. I have repeatedly expressed my concerns about the impact of the Rehabilitation of Offenders Act. I welcome the extension of the Act to bring cautions, final warnings and reprimands within its scope. This will mean that unconditional warnings and cautions are immediately spent for the purposes of the Act and that conditional cautions are spent after three months. After that, they will not have to be declared when the offender is applying for a job. This is welcome, even though I would have preferred to see it as part of legislation involving comprehensive reform of the Rehabilitation of Offenders Act. However, this does give me an opportunity to introduce reform in a Private Member’s Bill. Although the Act includes a range of measures that are individually welcome, overall they amount to merely tinkering around the edges of a sentencing and penal system that is in crisis. The prison population is at record levels, the prison system is in a state of extreme overcrowding and the Government's plans to build new, bigger prisons will absorb vast resources that could be better spent on improving prisoners' rehabilitation. I would have preferred to see a Bill that tackled the problem of this country's over-punitive sentencing system head-on. Such a Bill would have legislated to require sentencing guidelines to take account of the capacity of the prison system. It would have removed prison as an option for low level, non-violent crime. It would have prohibited courts from imprisoning offenders, other than the most dangerous, unless they had first tried an intensive community sentence. As it stands, the Bill contains some sensible ideas but fails to take the root-and-branch approach necessary to reform our criminal justice system and to reduce our prison population to levels that are more in line with those of our European neighbours.