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That broadly reflects the thrust of the second half of the Lords amendment, so my concern there is of no account. Simply because I am happy to accept, for present purposes, the Government amendment in lieu—I am not going to take this matter to a dispute—I urge the Minister to take into account some of the remarks that I have made on the wording, so that the obligation on the Secretary of State is that much firmer than it currently appears to be. If the Minister cannot offer me that help, could he please explain the Government’s requirement that there should be that obvious difference, between “ensure” and the necessity to take reasonable steps?

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Mr. Jeremy Browne: My contribution will be extremely brief, because I wish only to echo some of the sentiments that the hon. and learned Gentleman has expressed. Lords amendment No. 11 was a Conservative amendment introduced in the other place, but it was supported by my party and as a consequence passed there, which is why we are considering it here this evening.

We remain concerned about the potential for conflicts of interest. Although we welcome the progress that has been made, in terms of the Government seeking to accommodate and respond to those concerns, in an ideal world we should like them to move further. We would greatly welcome it if the Minister were minded to address himself to the points that the hon. and learned Gentleman has made about whether the wording of the Government amendment in lieu could be made tighter and more onerous in the burden that it imposes.

Mr. Hanson: I shall try to respond to the points that have been made. I am grateful for the relatively warm welcome that the hon. and learned Member for Harborough and the hon. Member for Taunton have given the Government amendment in lieu. I believe that we have moved and that we have listened to another place, but obviously there are still matters on which I should be happy to reflect, which the hon. and learned Gentleman has brought to the House’s attention.

The hon. and learned Gentleman asked, in broad terms, whether it was more appropriate for the duty to rest with the Secretary of State rather than with the provider. We have taken the view that regional commissioners will have a strategic overview of all services that are being delivered in their region. That means that they will be better placed to assess and police potential conflicts of interest than the Secretary of State. However, I am again happy to reflect on what the hon. and learned Gentleman said and to listen to the points that have been made.

The hon. and learned Gentleman asked why we had used the words “so far as practicable”. Parliamentary counsel suggested that they were the most appropriate form of words to cover the issues raised in another place. I am happy to reflect on what the hon. and learned Gentleman said, but that was the point that was put to us.

Mr. Garnier: I do not want any more bites at the cherry than are necessary. I am not so much fussed about “so far as practicable”, as with

as compared with “ensure”. That is the distinction that worries me.

Mr. Hanson: I will reflect further on the hon. and learned Gentleman’s points. We will certainly try to ensure that conflicts of interest do not cause problems.

When the court requests a pre-sentence report, it will also provide an indication of the expected sentencing outcome. The report can then be focused accordingly. Secondly, the report must adhere to national standards, which has been made clear in the strengthened amendment. Thirdly, there is clear guidance about the type of structure appropriate for the report, based on the seriousness of the offence and appropriate response. I hope that that helps the hon. and learned Gentleman with his concerns, although, as I say, I am happy to reflect further.

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We have moved considerably in respect of the Lords amendments. I hope that the House will accept our proposals while I undertake to look further into the hon. and learned Gentleman’s points.

Lords amendment disagreed to.

Government amendment (a) in lieu of Lords amendment No. 11 agreed to.

Clause 5

Power to establish probation trusts

Lords amendment: No. 14.

Mr. Deputy Speaker: With this it will be convenient to take Lords amendment No. 35 and Government amendment (a) thereto, and Lords amendment No. 36.

Mr. Hanson: I beg to move Government amendment (a), which amends Lords amendment No. 35 and relates to clause 5(1)—

Mr. Deputy Speaker: Order. We are debating Lords amendment No. 14. Together with it, we are debating Lords amendment No. 35, Government amendment (a) and Lords amendment No. 36. The principal subject of the debate, on which the Question will initially be put, is Lords amendment No. 14. The question is whether you agree or disagree with that.

Mr. Hanson: My apologies for the confusion, Mr. Deputy Speaker.

In due course, I shall move amendment (a). That would amend Lords amendment No. 35, which relates to clause 5(1). That enables the Secretary of State to establish, dissolve or alter the name or purposes of a probation trust by means of an order. An order establishing a probation trust under clause 5(1) will set out the names and purposes of the trust.

We originally proposed that the order should not be subject to parliamentary scrutiny. There is a precedent for this matter in respect of procedures applying to NHS trusts. As before, however, I have listened to the views expressed in the other place and I acknowledge the legitimate interest of Parliament in these matters. I accept that parliamentary scrutiny is appropriate. However, given the number of trusts to be established and the routine nature of the process as we move from boards to trusts over the next three years, I feel that the order should be subject to the negative rather than the affirmative procedure. That will provide the necessary safeguards to prevent excessive demands on parliamentary time.

There is one further strand to the amendment, relating to clause 5(3)(c), which gives the Secretary of State the power to extend probation purposes by regulation. In response to a recommendation from the Delegated Powers and Regulatory Reform Committee, the Lords accepted a Government amendment subjecting that power to an affirmative resolution procedure.

Mr. Deputy Speaker: Order. May I interrupt the Minister, as it is important for us to clarify the position? Is the Minister agreeing or disagreeing with Lords amendment No. 14? Would he like to express his intention?

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7.15 pm

Mr. Hanson: I apologise, Mr. Deputy Speaker. I am seeking to agree with amendment No. 14, so I beg to move, That this House agrees with the Lords in the said amendment.

In tabling amendment (a), which will amends Lords amendment No. 35, I have indicated that we are moving to accept the principle of parliamentary scrutiny, which the other place requested. Originally, we proposed that the orders should not be subject to parliamentary scrutiny. I have now decided that such scrutiny is appropriate, and I have indicated that the order should be subject to the negative rather than the affirmative procedure.

We have moved some way towards the other place’s general wishes on such matters.

Mr. Garnier: Before the Minister concludes his remarks, may I clarify his position, so that I can respond more or less intelligently to it? As I understand it, the Government now apparently accept Lords amendment No. 14, which would remove clause 5(6), but disagree with Lords amendment No. 35, which removes the word “under” and adds the words,

The Government wish to replace “5(1) or (3)(c)” with “5(3)(c)”. The effect of the Government’s case is that the statutory instrument will be subject to the negative, as opposed to the affirmative, procedure. Will the Minister remind the House of which bit of his argument puts forward that case?

Mr. Hanson: For the avoidance of confusion—I would not want to confuse the House in the presence of such an eminent lawyer as the hon. and learned Gentleman—the Government seek to agree with Lords amendment No. 14, which is in relation to clause 5. In relation to clause 33, however, the Government seek to disagree with Lords amendments Nos. 35 and 36. I have tabled Government amendment (a), which would provide for the negative rather than the affirmative procedure. I have moved some way towards the position of the other place.

With that clarification, and with my apologies to the House for the confusion at the beginning of the debate, I believe that the hon. and learned Gentleman will, on reflection, see that the Government are trying to support the objective of the other place. We are simply changing from the affirmative to the negative procedure, because, given that there are 40-plus trusts, it would cause some difficulty were the affirmative procedure used each time the matter came before the House.

Mr. Garnier: I think that I now understand what the Government are seeking to achieve. I am pleased that they are prepared to accept Lords amendment No. 14. I shall have a few things to say about Government amendment (a).

First, may I establish what we are talking about? We are discussing a power given to the Secretary of State to establish probation trusts, the successor bodies to probation boards, which have been happily doing their work over the last few years following the Government’s changes to the probation system in 2000.

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Clause 5 states:

The Secretary of State can require the probation trust to do all sorts of things, which are set out in the clause, in line with the purposes that he will decide for it. Interestingly enough, clause 5(3) states:

well, I have heard of ambition, but that seems to take it to an extraterritorial dimension—

So the Secretary of State wants us to give him a collection of powers, which he can then mess around with through secondary legislation.

Clause 33, in part 4, deals with orders and regulations, so it ties directly back to clause 5. Clause 33(1) states:

Subsection (2) states:

unspecified and unseen—

So, under clause 33(2), the Secretary of State will be given huge powers to alter the legislation and the arrangements made between himself and probation providers. No doubt all this will be divvied up by the regional offender manager, as the lead provider or commissioner.

As there will be lots of probation trusts and as the Secretary of State no doubt sees himself making lots of provisions,

he would find it rather more convenient for that to be done under the negative, as opposed to the affirmative, procedure. I am sorry, but I am not here for the convenience of the Government. Parliament is not here for the convenience of the Government. The Government are here for the convenience of the people and the people’s representatives in the Chamber, elected by electors. If it is convenient for the Minister to require the Secretary of State to push all that through using the negative, as opposed to the affirmative, procedure, I am afraid that he does not carry me with him.

I wish to apply such negative proceedings as I can to Government amendment (a), so I might ask you, Mr. Deputy Speaker, to allow me to test the opinion of the House on Government amendment (a), even if I am delighted that the Government accede to Lords amendment
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No. 14. It is highly important that Parliament, even by the very tips of its fingers, maintain some purchase on the Executive; otherwise, the Executive will just run away with themselves by using secondary legislation to change laws, particularly laws that affect the criminal justice system. I really do think that from time to time, the Government ought to condescend to allow Parliament to hold them to account.

Mr. Peter Bone (Wellingborough) (Con): Is not one of the problems with the Government that they are including more and more secondary legislation in Bills, and then using the negative procedure, which really reduces scrutiny by Parliament? That needs to be looked at again.

Mr. Garnier: I wholeheartedly agree. The Government increasingly use administrative convenience to justify reducing the amount of parliamentary scrutiny given to the making of laws. These laws are not written in the air. They affect the people of this country, and there can be adverse consequences for those who breach them. We need to tread carefully when we are considering adjusting part of the criminal justice system.

The Minister was not impressed by my arguments, or even by those of the other place, about the super-affirmative procedure for which I argued a moment ago. He has now gone right to the other end of the spectrum. Far from permitting the use of the super-affirmative or the affirmative system, he wants to whack this through using the negative system. This is one of those occasions on which Parliament must draw a line and say, “Thus far and no further.”

Mr. Jeremy Browne: I congratulate both the Minister and the hon. and learned Member for Harborough (Mr. Garnier) on making sense of the alphabet soup of legislative proposals that have been put before us. I am sure that all hon. Members who have attended the debate are now much clearer about where we stand and the features of the proposals that we are considering.

I start with the view that was articulated by the hon. and learned Gentleman: I am suspicious of untrammelled and unfettered Executive power and authority. It is increasingly a feature of the Government’s legislation that power is vested in the Secretary of State without as much reference to Parliament as I would like. There is particular cause for concern, because Parliament will not be fully scrutinising decisions taken in this top-down system involving so-called regional offender managers who will be imposing their will and that of the Secretary of State on localities that would be better suited to making such decisions themselves.

I welcome the Minister’s concession that orders that would not have received any parliamentary scrutiny at all will now receive a degree of such scrutiny. However, it was extraordinary that the Government even contemplated the way forward that they initially proposed. The fact that they thought that no system of parliamentary scrutiny would be necessary was perhaps indicative of the mindset of a Government who have been in power for more than a decade and are more concerned about making legislation efficient for the convenience of Ministers than about elected Members’ ability to scrutinise the Government effectively. I have a bias towards proper scrutiny of the Government.
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Ministers should welcome the burden of that scrutiny, because it adds to the quality of legislation. For that reason, although I welcome the Government’s modest step in the right direction, I think that the Minister should be willing to take a bigger, bolder and more ambitious step by allowing the use of the affirmative procedure, rather than the negative procedure. If the matter is pressed to a Division, I will vote accordingly.

Mr. Hanson: With the leave of the House, Mr. Deputy Speaker.

I have accepted the other place’s proposal that parliamentary scrutiny of these matters is required. I hope that the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Taunton (Mr. Browne) welcome the fact that the Government have recognised that there is a need for such scrutiny. The simple difference between us is whether that scrutiny should be carried out under the affirmative or the negative procedure.

Given the amount of such parliamentary scrutiny that might be required, the time that that might take in the House and the fact that these issues will often be uncontroversial, I thought that it would be better to use the negative procedure. If people are concerned about the issue, they can pray against the order and it can be debated and determined by the House.

Mr. Bone: I hope that the Minister agrees that just because the order is prayed against does not necessarily mean that it will be scrutinised.

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