Criminal Justice and Immigration Bill

My Lords, in a characteristically graphic and entertaining simile, my noble and learned friend Lord Mayhew of Twysden, compared the contents of this Bill to those of an ironmonger’s shop. I think that he might have been slightly unfair to the profession of ironmongery. It seems to me, rather, that the Bill as it has arrived at your Lordships' House is a vast exercise in political displacement. The noble Lord, Lord Elystan-Morgan, argued that the fact that the Bill does not have a single theme should not be the basis for condemning it; and I agree with him. Many criminal justice Bills have miscellaneous provisions and inevitably have to cover a wide range of different offences. But I do not think that the core of the criticism of the Bill is its lack of a single theme; it is its failure to grapple with the central problems that the criminal justice system is facing. One very good example exhibited today is that of youth crime. The Government had only to listen to the noble Baronesses, Lady Howe, Lady Stern and Lady Linklater, the noble and learned Baroness, Lady Butler-Sloss, and many other of your Lordships who have, in no uncertain terms, underlined the deep shortcomings of the Government’s approach to youth offenders and youth crime. The Bill contains many new dispositions for offences which carry imprisonment; and yet we know very well that there are no places for people to go to prison, let alone courses in those prisons to rehabilitate the prisoners who are sent there. Much of the Bill also makes disposition for community offences, but community offences are in a state of crisis. Not only is there under investment in them but there is also a deep lack of public confidence in community dispositions for a whole range of reasons which need facing up to in the immediate future. Our main criticism is the Bill’s failure to confront the reality that our society has to confront today in this sector. My noble friend Lord Henley rightly pointed out to your Lordships that much of the Bill was unscrutinised in another place. The scale of this lack of scrutiny is staggering. I give just one example. At the Report stage of the Bill the following new clauses were introduced: clauses on bail conditions, credit for a period of remand on bail, sentences of imprisonment and detention for public protection, extended sentences for certain violent or sexual offences, release on licence if prisoners are serving extended sentences; release of fine defaulters and contemners, early release of long-term prisoners, and electronic monitoring of persons released on bail. None of these extra provisions has been examined in another place. Effectively, the Government have required another place to subcontract all this work to your Lordships' House. I am sure the Minister can be in no doubt that the Committee stage on these matters will necessarily have to be very detailed and extensive because of that. Inevitably, I cannot look at every provision in this Bill, and so many of them have been so adequately dealt with by your Lordships that it is not necessary for me to do so. So, I will turn my attention to two or three issues, the first being youth rehabilitation orders. Under the Bill the court is given an immense menu of different requirements to impose on a young offender. It can impose an activity requirement, a supervision requirement, an unpaid work requirement, a programme requirement, an attendance centre requirement, a prohibited activity requirement, a curfew requirement, an exclusion requirement, a residence requirement, a local authority residence requirement, a fostering requirement, a mental health treatment requirement, a drug treatment requirement, a drug testing requirement and an education requirement. Are the Government confident that they have the resources to meet all these dispositions or, indeed, any of them? What analysis have the Government done on the availability of resources to underpin this very important new order? What kind of guidance will judges get on the hierarchy of these orders? Are they all of equal weight? Are some more important than others? Are some to be given in clusters or can they be given singly? What happens if there is a breach of an order? Is it one strike and you’re out or is the child sent back to do the particular task again? Perhaps the Minister can enlighten us on this. There appears to be no lower age limit for these orders. For example, could a 10 year-old be subject to a youth rehabilitation order? The Minister may not be able to answer all these questions now but I should be most grateful if he would respond as best he can. The most important point that has been made about youth rehabilitation orders and all the youth provisions in the Bill is that the Government have not sought to put them in their social and welfare context. That is the message that the Minister should take away with him tonight. The noble Baroness, Lady Kennedy, the noble Lord, Lord Neill of Bladen, the noble and learned Lord, Lord Lloyd of Berwick, and others spoke about Clause 42 and, I believe, Clause 104. It is not necessary for me to repeat the substance of the argument on Clause 42; it was extremely well argued by those who spoke. However, I want to emphasise a point behind it. I believe that the noble Baroness, Lady Kennedy, underlined the crucial point about what I summarise as due process—that the Court of Appeal has a duty to ensure due process irrespective of the outcome of the trial. This duty rightly undermines the Government’s amendment. In a way I suppose we should not be surprised to find the Government seeking to undermine due process because, if we look back at their history in relation to the conduct of criminal trials since 1997, we see that there have been many attempts to undermine due process. For example, there have been sustained attempts to remove jury trial, not just from fraud cases—many of your Lordships will remember an earlier attempt to limit the number of defendants who had the right to opt for jury trial in the Crown Court. It was only because of the determination of your Lordships’ House that we saw that off—and rightly, too. One of the most terrible depredations of the criminal trial process was the change in the rules on propensity in the 2003 Act—changes that I hope will be reversed some day. Then, in another context, we saw the denial of the requirement to make a prima facie case by someone who faced extradition. Your Lordships may well remember the attempt to oust judicial review altogether in certain cases. Those examples would have been unthinkable before 1997 and I see Clause 42 in exactly the same context; it is yet another attempt to undermine due process. I am afraid that one of the difficulties we have to face is, curiously enough, the Human Rights Act, because this Bill has been certified as conforming to that Act. It is right that jurisprudence on the continent does not entertain the kind of criminal process that we have—jury trial—so there is no case law in the Human Rights Act. The Government have been quite cute in saying that all these provisions conform to the Human Rights Act. We badly need to fill that gap in our law and bring back the old common-law protections for the criminal process that the Government have sought to abandon, piece by piece. Many noble Lords spoke to Clause 104 on the appearance of non-lawyers in contested cases in magistrates’ courts. The clause is astonishing. We spent most of last year considering a Legal Services Bill that was intended to improve the supervision of lawyers appearing in criminal or civil cases—whether they were barristers or solicitors. The strictest possible regulation is now imposed on a member of the profession. The next thing that the Government do is to say that it is perfectly all right for non-members of the profession to appear as lawyers; and, of course, they are not regulated. I regard that as rank hypocrisy by the Government and I do not understand what the origin of this can be, unless, as the noble and learned Baroness, Lady Butler-Sloss, said, it is economic. Is it actually economic? Is it economic to take people out of the CPS, who would normally be doing the kind of things that they do in the CPS, and let them take a lot of time off to appear in the magistrates’ court? We had this battle during the Access to Justice Bill in 1999. Until then members of the CPS were not allowed to appear as counsel in criminal trials. The Lord Chancellor, the noble and learned Lord, Lord Irvine, took the Bill through your Lordships’ House and the Government decided to give the CPS rights of appearance in the Crown Court. I was very surprised that the Bar Council did not oppose that, but the Opposition certainly opposed it—and rightly, too—because there is a basic conflict of interest between being employed by the CPS and appearing as an independent barrister in the court with the kind of duties which one has to that court when one appears as counsel. At the time, the noble and learned Lord, Lord Irvine, assured the House that an independent barrister would be unavailable only in a very few cases. In fact, it has become almost regular practice in certain parts of the United Kingdom. I wonder, quite apart from the principle, whether that makes economic sense. I am sure that the CPS says that it does. Does it really make sense for these people who are employed in an organisation that prepares the background to the trial then to appear in the trial, day after day, week after week? We may well need to test this matter in Committee. Many other matters will be before us in Committee. Two will be of particular interest—blasphemy and homophobic hate. They are issues upon which the Opposition’s view is that we will have a free vote. I listened carefully to what my noble friend Lord Waddington said in his outstanding speech. I will not trouble the Minister any further on other issues at this moment, but will allow him to wait and see the amendments emerge. I wish him luck and look forward to hearing him.