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The Lord Chancellor: My Lords, as I explained, justices of the peace have immunity against claims for damages, unless a justice is acting without jurisdiction and in bad faith. Thus magistrates are immune as regards claims for damages, except in that limited respect which one would expect to happen rarely, if at all.

The problem relates to costs, and the nature of the liability for costs must be taken into account. It varies considerably according to the position of the individual in the judiciary. The question is not simple and I hope that I am giving your Lordships every indication that I wish to address the problem with as much urgency as possible. I have very much at heart the interests of the lay magistrates who are unpaid, who give their services voluntarily and out of their own time. In order to secure their position properly, the matter needs to be considered. It is not a new problem which has arisen overnight; it has just been focused by certain developments. The nature of the problem is older and it requires considerable examination in depth before Parliament is invited to bring forward solutions.

Viscount Tenby: My Lords, is the noble and learned Lord aware that his remarks will be welcomed not only by magistrates but also the magistracy? As he is aware, the problem also affects justices' clerks.

The Lord Chancellor: My Lords, I am grateful that anything I say should be welcomed by magistrates or others. The noble Viscount raised the position of

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justices' clerks. For the most part they are paid members of the legal profession--although perhaps they do not consider their remuneration excessive--and their interests in securing any kind of indemnity or immunity is also important. A number of matters need to be taken into account and the noble Viscount's question helps to illustrate the multiplicity of problems that can arise.

Electronic Tagging of Offenders

3.2 p.m.

Lord Vernon asked Her Majesty's Government:

    Whether they are satisfied that the system of "tagging" prisoners on their release from custody, which they have already introduced on an experimental basis in certain areas, has potential for wider application.

The Minister of State, Home Office (Baroness Blatch): My Lords, the current scheme is not for prisoners on release from custody. The noble Lord is referring to the trials being conducted in Greater Manchester, Berkshire and Norfolk of the electronic monitoring of curfew orders, which are sentences imposed by the courts.

Lord Vernon: My Lords, is the Minister aware that co-operation between the probation service and the private companies which operate the tagging system is vitally important? Will she agree that the present hostility--or perhaps I should say unofficial but substantive hostility--by the probation service to the whole system of tagging could be prejudicial to the introduction of the scheme, which is widely successful in many western European countries?

Baroness Blatch: My Lords, I have some sympathy with what the noble Lord says. So far the trials have already demonstrated that the equipment works well and that the curfew orders provide a highly controllable and flexible restriction of liberty. It is true that some members of the probation service are hostile to the whole notion of the sentence and that its co-operation is important to the success of the trial. It is in everyone's interest that we find an effective community sentence that will add to the sentences available to the courts. In turn, that will mean that fewer people will go to prison, and it could even act as a preventive measure. I take the noble Lord's point and have some sympathy with it.

Lord McIntosh of Haringey: My Lords, is it not true that there have been only 17 cases in which magistrates have awarded a sentence of electronic tagging? In that situation, how can it possibly be said that the experiment is a success? Is not this the case? There is not only the reluctance of the magistrates and the probation service to using that method of control but there are technical problems with the equipment. Are there not a number of examples of people who, despite tagging, nevertheless continue to offend? Under those circumstances, is it not a waste of money to spend a further £1 million on the experiment? Should not tagging be left to theme parks and Disneyland, where it belongs?

Baroness Blatch: My Lords, it is more than 17 cases; it is 21. There is no fault with the equipment, which has

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not failed on one single occasion since it has been in use. The point made by the noble Lord, Lord Vernon, is important: the system requires co-operation from the probation service. However, in its limited way it has also provided an effective community sentence. Magistrates have asked for an extension of the area and it has been granted. They have since also asked for an extension of the time, and I am considering the matter.

Perhaps I may pose a question to the noble Lord. Is he really saying that it is not even worth pursuing an additional effective community sentence? If successful, it could work both as a method of preventing further crime and, as in Sweden, where it has been trialled successfully, it could act as an alternative to short-term prison sentences and would prove more cost-effective.

Lord McIntosh of Haringey: My Lords, the Minister should not anticipate the general election and ask me to answer questions before the House.

Baroness Blatch: My Lords, if the noble Lord is saying that the experiment is not even worth trying, it is only fair to say that we are in the business of looking for effective community sentences. I would expect at least the noble Lord's co-operation in doing what we can to produce effective and cost-effective community sentences which may in turn reduce the prison population.

Baroness Seear: My Lords, can the noble Baroness explain in what way the scheme is different from the one previously tried out in Nottingham? That was a resounding non-success, to put it mildly.

Baroness Blatch: My Lords, there is a good deal of difference about it. The principal difference is that the equipment is much more sophisticated and reliable. From everything we have seen, since the scheme has been under way not a single breach has taken place where the equipment has failed. That is the principal difference.

Lord Annan: My Lords, surely everyone recognises that we must do all we can to reduce the number of people who go to prison, even though they may have committed crimes. Otherwise, how can we achieve better conditions in the prisons? Everyone knows that that is a major problem. Surely, therefore, the Minister will agree that it is right that we should try any experiment which will help with the matter. If the experiment proves to be a failure, so much the worse, but if it proves to be a success then we shall have achieved something.

Baroness Blatch: My Lords, I welcome the noble Lord's comments. We should all keep an open mind on the experiment; it is in everyone's interests that it should be a success. We know that the equipment works and that in certain circumstances it is an effective community sentence. I reiterate the point that the noble Lord, Lord Vernon, made, that it would be even better if it had the full co-operation of the probation service.

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We know that magistrates are doing what they can to make it an effective additional sentence available to the courts.

Rating (Caravans and Boats) Bill

Brought from the Commons; read a first time, and to be printed.

Community Care (Direct Payments) Bill [H.L.]

3.9 p.m.

Baroness Cumberlege: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Baroness Cumberlege.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Direct payments]:

The Chairman of Committees (Lord Boston of Faversham): In calling Amendment No. 1, I should point out to the Committee that if it is agreed to I cannot call Amendment No. 3.

Lord Rix moved Amendment No. 1:

Page 1, line 10, leave out from ("Services,") to the end of line 12.

The noble Lord said: By way of preamble, may I say how glad I am sure the whole Committee is to see the noble Baroness, Lady Cumberlege, back in her place on the Front Bench. I trust that she has fully recovered from her indisposition. I also trust that it has left her in a good mood to face the amendments to which she will respond this afternoon.

I suspect I am not alone in having had to do some hurried rethinking on what I propose to say in the light of the last-minute access to the consultative document. We have in front of us a number of amendments alike in purpose but different in character, all dealing to some extent with issues now discussed in the consultative document. I speak in particular to Amendments Nos. 1 and 38.

I notice that the copy of the consultative document that the Minister's officials kindly faxed to MENCAP was timed at 19.14 on Friday, which indicates some after-normal-hours work in the Department of Health which ought to be acknowledged. It is a pity, however, that there could not have been a longer gap between the publication and this debate.

Since the document has been published, and since it clarifies the Government's intentions on the scope of the direct payments arrangements, I can helpfully tighten up my remarks on my related amendments. Those amendments would remove the Government's regulation-making powers and, as a necessary counterpart, prevent local authorities excluding whole

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categories of potential beneficiaries. Contrary to the apparent instinct of other participants in this debate, I see no great virtue in preventing the Government discriminating while allowing local authorities to discriminate.

The reason for my amendments is straightforward. I want those who have learning disabilities who are in a position to benefit from the new option, and want to benefit, to have that chance.

There are perhaps two counter-arguments inherent or explicit in the consultative document. The first is that it is better to start with physically disabled people of working age and learn from their experience. With respect, I do not believe that we can learn more about accommodating the particular needs of people with learning disabilities from a scheme limited to people with physical disabilities; and I do not see what is to be gained by covering people with learning and additional physical disabilities--which is another option tabled--though that is certainly better than restricting the option solely to people with physical disabilities. People with learning disabilities are included in existing not dissimilar schemes. That provides a starting-point in experience.

The second argument that needs to be addressed is this. If local authorities do not have to run any sort of direct payments scheme, why tie their hands as to the sort of scheme they choose to run? My answer is that I do not favour authorising unfair discrimination. Authorising local authorities not to open a particular option to anyone seems marginally more in line with good practice than authorising them to indulge in unfair discrimination against some potential beneficiaries.

I raise one final point. I do not see a huge rush of people immediately anxious to take over the somewhat onerous task of buying their own support package. That reinforces my view, which other noble Lords clearly share, that it is wrong to restrict entitlement to a very narrow band among those who want to pursue this option. I beg to move.

3.15 p.m.

Baroness Hollis of Heigham: I support the amendment moved by the noble Lord, and speak to Amendments Nos. 2, 3, 38 and 44 in this grouping. We strongly support Amendment No. 1 tabled by the noble Lord, Lord Rix, and Amendment No. 3 by the noble Baroness, Lady Darcy (de Knayth), which she will no doubt move in a moment. Amendments Nos. 2 and 44, standing in my name and that of my noble friend Lord Carter are probing amendments. They seek simply to press the Minister on her thinking. The first would leave eligibility to be defined by regulation; the second would remove the power of the Secretary of State to determine by regulation who would be eligible for direct payments. They cancel each other out. We do not want either amendment, except as a probe.

Our view on these Benches is clear. We do not believe that the Secretary of State should determine, either by schedule or by regulation, who should or

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should not be eligible for direct payments made by the local authority in lieu of services. There are two broad reasons for our view.

First, we believe that anybody suffering from any type of disability may be suitable, and should be eligible, for direct payments rather than services. Such people should not be debarred by a priori category, by stereotype, whether on grounds of age or by type of disability. Someone who is 66 may be better able to cope with direct payments than someone who is 46. Someone with a moderate educational learning difficulty may nonetheless have a greater capacity and willingness, particularly if they are in sheltered accommodation, than someone with a severe physical disability which leaves them frail, poorly and sometimes confused. In other words, whether someone is suitable for direct payments should be assessed individual by individual. There should not be blanket category exclusions.

If this Bill means anything, it means putting a disabled person and that person's needs at the centre of the care system; and that such people are seen as individuals, empowered to make their own decisions, and not as a category for whom decisions are made by the Secretary of State, the local authority or the care professionals. That is what the Bill is about. This first amendment seeks to deliver the purpose of the Bill.

My second reason for supporting the amendment (as I have said, we do not believe in category blanket exclusions irrespective of the individual competence of the person concerned) and why we are opposed to the Secretary of State ruling out in advance that certain people should be eligible is this. While everyone should be eligible--and not everyone will be suitable--the decision, the exercise of discretion, should be made locally by informed professional social workers and not at the centre by a Secretary of State who cannot know the individual circumstances involved.

Local authorities regularly exercise discretion, through professional and trained social workers, in all sorts of sensitive issues from child abuse to adoption and the like. It is a discretion informed by professional judgment. That is why we have social workers. Why then should a Secretary of State seek to double-guess or to preclude social workers from exercising their discretion where they believe that direct payments are in the best interest of the individual and, in terms of value for money, in the best interest of the authority? Why should the Secretary of State double-guess the professionals who are trained to do the job on the ground?

This amendment is necessary because these lines in the Bill are not. The only test for direct payments should be: is the person in need; has he or she been assessed as requiring community care services; does it represent value for money for the authority; and is it in the best interests of that individual that he or she should receive direct payments rather than services? We do not need the Secretary of State to exercise discretion on behalf of professionals and to limit the discretion of local authorities. That will stifle innovation, inhibit value for

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money and subvert the purpose of the Bill, which is to put the needs of the disabled individual at the centre of the care system. We support these amendments.

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