Criminal Justice and Immigration Bill

My Lords, the origins of the Bill seem to lie more in a desire to respond to newspaper headlines than a considered analysis of what needs to be done and then to change the law carefully and proportionately to reflect the changes that are needed. The broad sweep of the Bill, comprising piecemeal measures on youth justice and rehabilitation, sentencing, the establishment of new bodies—now to be withdrawn, we are told—changes to compensation, new powers and penal policy indicate that a huge area of the civil and criminal justice systems were frozen in a time warp, have now entered the 21st century and hence need urgently updating. But as my noble friend Lord Thomas of Gresford has already stated, that is not the case. We have had numerous such Bills over the lifetime of this Government. This can mean two things: that our criminal justice system overall is so inadequate as to require constant readjustment, or that previous legislation in many these areas was not thought through properly. Most people would conclude the latter. I now turn my attention to the principle that will guide our approach to the Bill from these Benches. There is a concern that when the state interacts with its citizens and uses its powers of sanction against them, it is duty bound to do so proportionately and with regard to an end which, in the majority of cases, is rehabilitation. This will entail the Government putting forward arguments based on evidence—something not readily visible in the provisions we find here today, as my noble friend Lady Miller stressed. If we take the area of youth justice, the need for those principles becomes even more evident. Where children and young people have broken the law, it is a combination of other factors, including inadequate parenting, poor life skills and familial and social causes that have led this person down the route that they have taken. The noble Lord, Lord Judd, reminded us of the stark statistics of deprivation and the speeches of several other noble Lords will indicate to the Minister how contested this area will be. In dealing with measures on youth offending, the current approach is to have a range of measures of differing requirements. While the replacement of the previous orders with youth rehabilitation orders may be more straightforward, the prescriptive nature of several of the measures envisaged in Part 2 give cause for concern. We will explore the rationale behind legislating in statute for certain areas, rather than allowing for the greater discretion to be built into the system, bearing in mind the circumstances of each individual case. Moreover, at this stage, we are not convinced that the Bill incorporates adequate safeguards for children and young people to be treated as far as possible outside the custodial sentencing regime. As the report of the Joint Committee on Human Rights points out, not only is proportionality to be sought, but the child’s age and emotional maturity is relevant to the use of custody, which the noble Baroness, Lady Stern, has already mentioned. There is a risk that young people will fall into the trap of entering into custody, not only, as the JCHR states, because of the seriousness of their offence, but because of their failure to comply with the terms of their community sentences. We hope that the Government will take the considered views of the JCHR on board and come forth with revised proposals. We will also seek to explore the rationale behind elements of Part 6 of the Bill, which seeks to extend the adult conditional caution scheme to young people aged 16 and 17. It seems that the constructive engagement intended for young people, in order not to criminalise them, which should be the basis of cautions has, through the addition of ““conditional”” turned into a sentence. We intend to explore whether the options available to young people through this measure will be proportionate, workable and suitable for that age group. Before I leave this area, I must say to the noble and learned Baroness, Lady Butler-Sloss, that we look forward to hearing more about her amendments—they sound intriguing—and seeing whether we can work with her on them. Many noble Lords have expressed concerns about violent offender orders. My noble friend Lord Thomas foreshadowed our broad concerns with these orders, not least their extremely broad reach. As Liberty points out: "““At the heart of these is the extraordinary scope available for the imposition of restrictions on individual freedom””." Restrictions for the type of offender envisaged here already exist within the current system, not least through imprisonment for public protection measures, licences and parole measures. If the scope of these orders in practice is wide—that is, overly generalised—and the conditions are overly restrictive, they may well be in breach of Article 7 of the ECHR. We would be back in the territory of relegislating, as we have had to do with terrorism. The JCHR report points out that these orders are analogous to control orders and serious crime prevention orders. In this case, to satisfy the requirement of legal certainty, at minimum an indicative list of the types of prohibitions, conditions or restrictions that might be imposed should be published. We intend to press Ministers on that point in Committee. A further issue relating to violent offender orders is the danger of excessive use and the numbers that could be imprisoned. According to the Prison Reform Trust, when the proposal was announced, it was suggested that the orders would lead to an increase of 3,000 in the prison population. I understand that the Government contest this figure and expect smaller numbers of prison places being taken up. However, in the words of the Prison Reform Trust, ministerial estimates in past debates, such as on indeterminate sentences for public protection, made during the passage of the Criminal Justice Act 2003, have been confounded by reality and serve to demonstrate the importance of properly debated and drafted legislation. I echo the disappointment of the noble Baronesses, Lady Howe and Lady Stern, that an opportunity to act on the report of the noble Baroness, Lady Corston, on women in prison was not taken in this Bill. It would have helped Ministers generate some positive focuses in this area in an otherwise rather uninspired and possibly deleterious piece of legislation. Many noble Lords have spoken today on many aspects of the Bill that we will have an opportunity to review further. We have had a considerable number of briefings and many hundreds of pages of advocacy. In the weeks ahead we will no doubt hear elegant and erudite perspectives on issues of concern. My noble friends have identified several areas where we will probe, question and debate the purpose and workability of the laws envisaged. As ever, it is our intention to work constructively with all sides to improve what seems yet again to be hastily prepared and ill-thought-through legislation. We hope that by the end of this process we will have law which serves both the criminal justice system and society better than the current system.