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Mr. Hawkins: My hon. Friend spoke about some of those issues in earlier debates and knows that many of them were covered in Committee, but does he agree that, in talking about the vital issue of the legal responsibility, one of the things that most outrages the public is the terminology? People are referred to as clients when they should be called offenders.
Mr. Deputy Speaker: Order. That is not within the scope of the amendment.
Mr. Clappison: I understand my hon. Friend's point, but I do not want to stray down that path, Mr. Deputy Speaker.
The important issues are how much independence there will be in individual areas; how much scope there will be for local decision taking; and how much influence local boards can bring to bear on chief officers to deal with the problems in their areas. Given the Government's proposal, I doubt whether they will have the local discretion, that is so important. I doubt whether the amendment goes far enough in ameliorating the effect of the centralised structure that the Government have put in place. The amendment looks very much like a fig leaf.
I should like the Minister to say more about the arrangements for selection panels. Who will sit on them? My right hon. Friend the Member for Bromley and Chislehurst made the important point that all the procedures will cost money and require bureaucratic structures and services. When the selection panels have undertaken those processes, will the Home Secretary always accept their recommendations, or can he reject them and appoint someone he prefers? We need to know more because if the latter is the case, the amendment really is a fig leaf.
Mr. Mike O'Brien: This has been a useful debate. Many points have been made, and I shall attempt to deal with each of them. The hon. Member for Surrey Heath (Mr. Hawkins) welcomed--albeit in a rather curmudgeonly fashion--the fact that the Government had
listened to the debate and had been prepared to propose some changes to the Bill. He recognised that the Home Secretary had sought to give reassurances on several matters.It seems to me to be clear where the legal responsibility lies. The local probation board is the employer and will be a body corporate. The board therefore has all the usual liabilities of such an organisation. It will be responsible for any action that may arise in tort. Who appoints the chief officer is irrelevant to such matters. We are dealing with how a particular person is appointed to a job, and who or which legal person--a body corporate in this case--is liable if an action arises is a separate issue, so there need be no confusion. I hope that I can reassure the hon. Members for Surrey Heath and for Hertsmere (Mr. Clappison) that that is the case. I am not sure whether any great change is involved.
We agree that chief officers will be appointed in a new way, but we believe that the system is right for a different system--a national service. There is a difference of view between the Government and many Opposition Members about the way in which the Bill has developed. We have argued for the broad principles of a national service on other occasions. This is a particular amendment, so I shall not argue about whether there should be national or local control, but simply say that the Government have listened with care to the debate and have accepted that a panel should be set up and, therefore, that there should be a selection process. Nevertheless, the decision will finally rest with the Home Secretary.
The right hon. Member for Bromley and Chislehurst (Mr. Forth) asked why the amendment contains the words:
- in the case of the chief officer, for the board to be represented on any selection panel making a final recommendation to the Secretary of State.
The right hon. Gentleman will know that any decision taken by a Secretary of State--or, indeed, any Minister--is subject to a test of reasonableness. Okay, it is Wednesbury unreasonableness, rather than reasonableness, and the Secretary of State must have a reason for not accepting the recommendation of the panel drawn up to conduct the interview.
Mr. Clappison: Is it not a little unrealistic of the Minister to suggest that a selection panel appointed by the Home Secretary would take him to judicial review, saying that he had behaved unreasonably? Could not provision be made for the Home Secretary to explain his decision if it were different from the recommendation of his own selection panel?
Mr. O'Brien: Like me, the hon. Gentleman is a lawyer and he knows full well that a person who has a locus in a case may be able to challenge the Secretary of State's decision. That need not be done by the board.
The hon. Gentleman's view may not be without foundation. A board appointed by the Home Office and the Secretary of State is probably unlikely to take the Secretary of State to court. If we look back into the realms of administrative law, we may find that that has happened. However, a challenge is more likely to be made by someone who is not appointed. There may be others who, for a particular reason, might also want to make a challenge.
Mr. Hawkins: I do not wish to criticise the Minister for this, but he might be short-circuiting his own argument. He refers to Wednesbury unreasonableness, but our debates can now be examined in the light of the Pepper v. Hart ruling. Those of us who are lawyers, such as my hon. Friend the Member for Hertsmere (Mr. Clappison) and myself, may understand the concept of Wednesbury unreasonableness, but my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and my hon. Friends the Members for West Chelmsford (Mr. Burns) and for Uxbridge (Mr. Randall) will not be familiar with it. The Minister should explain the concept, not least for those outside who take a great interest in these procedures.
Mr. Forth: And for the record.
Mr. Hawkins: Yes, and for the record. The Minister should explain exactly what he is talking about. I understand him, but I am not sure that those reading his words will.
Mr. O'Brien: As the hon. Gentleman will know, Wednesbury unreasonableness would refer to the Secretary of State making a totally unreasonable or crackers decision. He is not entitled to do that, or make a decision that is so arbitrary that it is contrary to the weight of all the evidence before him. To that extent, as I said to the right hon. Member for Bromley and Chislehurst--as a former Minister, he is probably aware of this legal issue--there are controls on the way in which a Secretary of State would have to respond to a decision on the appointment of a panel and on the recommendations that come from that panel.
I also make it clear to the hon. Member for Surrey Heath that the Pepper v. Hart ruling is relevant only to cases in which there is ambiguity. I hope that the drafting of parliamentary draftsmen does not give rise to a level ambiguity that would cause the ministerial statements that are covered by Pepper v. Hart to be dragged into the argument.
Mr. Hawkins: I heard my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) criticise the way in which a Bill that we considered earlier this week had been drafted. I do not want to return to that argument because you would rule me out of order if I did, Mr. Deputy Speaker, but I think that the Minister is being a little complacent in suggesting that parliamentary draftsmen could never produce anything that was ambiguous. Conservative Members are concerned about this issue because the current Home Secretary frequently gets involved in decisions that we would regard as crackers--to use the Minister's own word. For example, the Home Secretary got into terrible trouble yesterday for calling for a British football team. Most of the British population thought that idea was crackers.
Mr. O'Brien: If I followed the hon. Gentleman's example and discussed a British football team I would soon be ruled out of order, so I shall not do that.
Rulings such as Pepper v. Hart were made because there is, on occasion, ambiguity in legislation. We all understand that. I was dealing with an issue raised by the right hon. Member for Bromley and Chislehurst who asked me to clarify the issue of recommendation. I have sought to do that by setting out how I interpret that provision.
4.45 pm
The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) expressed some general concerns about the Bill. I understand them but I shall not go down that route, because this is a specific amendment. The hon. Gentleman referred to the number of Home Office Bills of which this is one. This is a modernising Bill, and modernising our criminal justice system is a substantial process. We inherited a system that was very old-fashioned, and we have had many debates with the forces of reaction who have opposed some of the changes that we have made. Perhaps that is a necessary process.
The appointment of the chief probation officer is important and almost unique. In many ways, the service is unique. The position is clear to us. The board is responsible for service delivery, and the chief officer is a member of the board and he has executive responsibility for the delivery of the service. The Secretary of State will appoint the chief officer, who will help to make board policy. If there is a dispute, the Secretary of State can direct the whole board. That is how we shall deal with conflicts of interest and conflicts of policy.
The membership of the board is a straightforward issue. It is intended that it will be able to make reasonable and straightforward decisions about the people who are selected. Selection will not just take place across the whole country, because there will be local boards, but the main board will include a national director designate, the chairmen designate of each area who are to be appointed, an independent diversity adviser and an independent assessor. Such people are likely to be on it.
The hon. Member for Hertsmere asked me about the judge who will be appointed by the Lord Chancellor. The judge is there by statute and reflects the current position on appointments. On the hon. Gentleman's point about magistrates, we intend that regulations will provide for a certain proportion of magistrates to be involved in the process of appointment and selection. I hope that that deals with that point.
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