| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The Earl of Mar and Kellie moved Amendment No. 90A:
The noble Earl said: Amendment No. 90A and the associated amendment, Amendment No. 91, have the purpose of removing from the Bill the opportunity of a fine defaulter to buy his or her way out of a community service order or curfew order which has been imposed after a default. Subsection (13) suggests that the offender can hand money to the community service staff or curfew operating staff and be released from the scheme. I would have thought that it should at least be
I am against this opportunity in principle. The community service scheme gives serious undertakings to do work for other agencies and bodies. The evaporation and sudden disappearance of the workforce would be quite inappropriate because the tasks undertaken would have to be real work that needed to be done. I suspect that Amendment No. 91 may contain a workable compromise. I am sure that that will be explained to the Committee.
The case against being able to buy oneself out of a curfew order is weaker. This type of order is focused wholly on the individual and his or her whereabouts and so early termination will not have the same effect as it would have with a community service order. I beg to move.
Lord McIntosh of Haringey: I thank the noble Earl for referring to my amendment as a workable compromise. That is certainly what it is intended to be. I hope that the Government take the same view. This is always a difficult balance. The balance is between the kind of flexibility that the Government propose, which has the advantage that the paying off of a fine properly discharges the disposal that has been awarded because it has not already been paid off, and the costs of implementing community service orders and curfew orders. The fewer the number of people who have to do it for this reason the better for all concerned. But the problem that the noble Earl rightly recognises in his amendment is the administration of community service orders. Work has to be found for these people. It must be organised, supervised, booked and paid for. Administrative arrangements must be made. Indeed, the community service order contract has some sort of commercial benefit even if it is not expressed in that way. I can imagine that it could be extremely difficult if an unknown number of people turn up for a programme of community service which has been carefully worked out and hand over the sum and the supervisor, the work and all the materials and organisation go to waste.
We propose not to make any change on curfew orders but to make a change on community service orders, saying that, using the provisions of Clause 31, offenders can buy off a certain amount but they cannot buy off more than half the sentence unless they do so at the time when the obligations of the community service order are first spelt out. I hope that that justifies the phrase "workable compromise" and commends itself to the Government.
Lord Hylton: I should like to support Amendment No. 91 and at the same time ask the noble Baroness whether she would be kind enough to look at the drafting of the last four lines of page 23 of the Bill. One would think that they could be more elegantly expressed.
The Earl of Balfour: I wonder whether this particular clause covers the position where somebody
Baroness Blatch: May I start by giving an absolute assurance to the noble Lord that I will always look at the wording and, if it is possible to make it more elegant without compromising the accuracy of it, I will persuade counsel to agree to do that. I have to tell him at the same time that counsel are not easily persuadable in these matters and I never find legalese elegant at all, but I will do what I can.
In answer to my noble friend Lord Balfour, in the particular example he gave of somebody getting drunk and smashing a shop window, even if that person does offer to pay for the damage, nevertheless he has committed another offence and I am not sure quite what the courts would think about that. I am assuming that he is already paying the fine one way or another. Therefore it is open to him to continue to go to court to present his circumstances to the court and for the court to determine whether easy payments can be considered or whether there should be some other way of paying the fine because at the end of the day--and that was going to be my starting point in responding to this amendment--the key principle is to get the person to pay the fine. That is why we find it difficult to accept the amendment.
If Amendment No. 90A were agreed, a fine defaulter would have no incentive to pay off the fine imposed upon him once a community service or curfew order had been imposed. The defaulter would still be required to complete the whole of the community service or curfew order imposed upon him regardless of how much of his fine he had paid. If the court decides that a fine is an appropriate way of punishing an offender, then the outcome we wish to see is that he pays that fine in full. It may be that the imposition of a community service order, a curfew order, or even a custodial sentence, is required to persuade him to do so but we do not want merely to replace the fine with a community penalty. We must therefore not remove incentives for payment.
Although different, Amendment No. 91 is also fraught for similar reasons. Under this amendment the fine defaulter would have an incentive to pay off up to half of his fine because his community service order would be reduced proportionately. However, if the amendment were accepted, not only would there be no incentive for him to pay off more than half of the fine, but he would not be allowed to do so because of the limit imposed by this amendment. That is inconsistent and indeed illogical, particularly as these restrictions would not apply to curfew orders imposed in the same circumstances. If a fine defaulter has the means to pay off the majority of his fine and is prepared to do so, we wish to continue to encourage him to pay the fine and not to prevent him from doing so.
The noble Earl, Lord Mar and Kellie, referred to the issue of to whom payment should be made. The Bill provides for the fine to be paid to an authorised person. In the light of the comments made by the noble Earl, we would want to explore in the pilots whether this should include anyone other than court staff.
The Earl of Mar and Kellie: I am very grateful for that final comment because the precise wording "any person authorised to receive it" struck me as being very vague. Having been a community service supervisor, about the last thing of all the things one had to deal with was working out how many hours of community service someone could buy themselves out of which, in the midst of getting everything organised, was not easy.
I am also grateful to the noble Earl, Lord Balfour, for raising the subject of what I am going to end up calling "compensation order defaulters". I have to ask the noble Baroness, first: do you have compensation orders in England?
Baroness Blatch: Yes, we do. Could I say to my noble friend that my understanding is that compensation orders must be paid before a fine. That is important.
The Earl of Mar and Kellie: Having established that we have compensation orders in England, does a fine defaulter include a compensation order defaulter?
Baroness Blatch: The provisions of the Bill will apply to the enforcement of financial penalties, which includes compensation orders.
The Earl of Mar and Kellie: Thank you very much. I think I have debated this one far enough. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 91A:
The noble Baroness said: Clause 31(14) contains a power to amend, by order, the minimum and maximum hours of community service or days of curfew order which can be imposed on fine defaulters under the provision in that clause. Clause 31(15) provides for such an order to be subject to a negative resolution. The Select Committee on the scrutiny of delegated powers recommended that the negative resolution procedure would be appropriate for orders where the default period is to be decreased, but that the affirmative resolution procedure would be appropriate if the default period were to be increased.
We are happy to accept the recommendation of the committee but, to avoid unnecessary complexity, we propose to make all orders made under this section subject to the affirmative resolution procedure, whether they increase or decrease the period. This is what is proposed in the amendments tabled by the noble Lords,
However, as I have already indicated privately to the noble Lord, Lord McIntosh of Haringey, I am advised by lawyers that the drafting is not quite right. I take no credit whatever but I understand that counsel's version of these amendments is rather more elegant and accurate. I beg to move.
Lord McIntosh of Haringey: I have no objection to being told that the Government amendments are more elegant. That is par for the course. But I do object to the Minister sneaking in and getting her amendment higher up the Marshalled List than mine. That is supposed to be the province of the Opposition. If there is any more of this, I shall start to introduce paving amendments.
On Question, amendment agreed to.
[Amendments Nos. 92 and 93 not moved.]
Clause 31, as amended, agreed to.
Clause 33 [Persistent petty offenders]:
[Amendments Nos. 95 to 97 not moved.]
Page 23, line 36, leave out subsection (13).
Page 24, line 6, leave out from ("instrument") to ("House") in line 7 and insert ("; but no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each").
9 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page