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Earl Russell: May I just remind the Minister of the previous time this place was abolished? A second chamber was recreated under the protectorate of Oliver Cromwell. They had an immensely long argument about what to call it. They decided that they could not call it the upper house so they decided to call it the other house. That made precisely no difference.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Baroness Hanham: I rise to oppose the Question that Clause 38 should stand part of the Bill.

Noble Lords: Oh!

Baroness Hanham: I apologise. I understand that the Question has already been spoken to.

Clause 39 [Community service orders renamed community punishment orders]:

Lord Bach moved Amendment No. 111:

The noble Lord said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

Clause 40 [Combination orders renamed community punishment and rehabilitation orders]:

Lord Bach moved Amendment No. 112:

    Page 22, line 9, after ("orders)") insert ("whenever made").

The noble Lord said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

[Amendment No. 113 not moved.]

Clause 40, as amended, agreed to.

Clause 41 [Exclusion orders]:

Lord Dholakia moved Amendment No. 114:

    Page 22, line 42, at end insert--

("( ) shall only be made if the offence is one which is specified in schedules by order of the Secretary of State and"

The noble Lord said: This amendment concerns exclusion orders. Unfortunately the Bill does not explicitly state that the exclusion order will be used in limited circumstances. We fear therefore that because

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the offences are not prescribed there will be net-widening and that it will be used in a range of non-predatory situations.

We also believe that the scheme must be carefully monitored to ensure that it delivers the stated objectives. If the scheme is introduced it should also be used in conjunction with supervision and treatment if necessary. It would be helpful, therefore, to include a schedule to the Bill which can then include offences relating to racial hatred, sexual harassment, domestic violence and offences against children. In effect, that will determine the limitation of that clause without necessarily giving much wider powers to the Government. I beg to move.

Baroness Blatch: Amendments Nos. 115, 118, 121 and 124 in this group stand in my name. As drafted, in Clauses 41, 42, 45 and 46 the Bill allows for the Secretary of State to use secondary legislation to extend the parameters of sentences. The Delegated Powers and Deregulation Committee recommended strongly that these powers should be removed. The second report of the committee states in its final recommendation:

    "The Committee has drawn attention to the powers in clauses 41, 42, 45 and 46, each of which allows for the amendment of the bill to increase the severity of a sentencing power. The Committee recommends that these powers should be omitted. If those powers are to remain, which would be contrary to our recommendation, the Committee suggests that they should be subject to affirmative procedure".

Following my reference to the issue at Second Reading, I received the following day a letter from the chairman who wrote on behalf of the committee. He said:

    "The Committee thought that I should point out, however, that our recommendation was not that the powers in Clauses 41, 42, 45 and 46 should be subject to affirmative procedure, but that they should be omitted. It was only if the House disagreed with the view that we considered that they should then be made subject to affirmative procedure".

Therefore the letter from the chairman on behalf of the committee makes it clear that its firm recommendation to the House is that the powers should be omitted and that only if the House takes the view that they should not be omitted, then the affirmative resolution should be referred to. I believe that the Minister is going to settle for the affirmative resolution. I believe that he should allow the House to take a view on whether that is acceptable.

Under this Government and the former government, the House enjoys an unbroken record of accepting the advice of the Delegated Powers and Deregulation Committee since its inception. I recommend strongly that this Bill should not be made the exception. The committee has served the House well. Its work is highly regarded and I suggest that this is no time to reject its advice. I beg to move.

Lord Bassam of Brighton: I deal first with the government amendments and then the amendments grouped with them. The government amendments, Amendments Nos. 116, 117, 119, 122 and 125, are minor amendments. They close a small loophole in the Bill.

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The Secretary of State already has powers, or will have powers under the Bill, which enable him to alter by order the maximum period of curfews, exclusions and drug abstinence orders. The amendments simply ensure that where the maximum period for such orders has been altered by the Secretary of State and a court is considering amending the terms of an individual order, this can be done with reference to any new maximum periods. For example, if a court is minded to extend the length of an exclusion order, on application by the offender's probation officer, the Bill as it stands precludes the total exclusion period from lasting longer than one year. But if the Secretary of State had exercised his power to increase the maximum length of exclusion orders generally to, say, two years, it would seem reasonable in the circumstances for the court amending a particular order to be able also to extend its duration--

Baroness Blatch: I am grateful to the Minister for giving way. If the noble Lord wishes to give the courts power to extend sentences, why not use primary legislation to extend the parameters within which the courts can operate? That is the proper way, and it is the way in which the Delegated Powers and Deregulation Committee recommends that it is done: by using primary and not secondary legislation--and not, as described by the noble Lord, secondary legislation on the hoof.

Lord Bassam of Brighton: We have the greatest respect for the advice we receive from the Delegated Powers and Deregulation Committee and listen carefully to it. The noble Baroness knows perhaps better than I do--she has been attending this Chamber far longer than me--just how difficult it is to obtain legislative slots. We seek to persuade the Committee that some flexibility is essential here. I do not think that that is unreasonable in the circumstances.

Perhaps I may return to the point on the argument. It seems reasonable for the court amending a particular order to be able to extend its duration to two years. This would be achieved by the amendment.

The amendment also enables the Secretary of State to amend the periods which apply to the warning provisions when he has used his power to alter the maximum length of an exclusion order and a drug abstinence order. Again, this is simply to provide consistency in the Bill.

These amendments, therefore, do nothing more than provide a consistent approach to the length of curfews, exclusions and drug abstinence orders, should the Secretary of State make new maximum periods available.

I turn to the amendments tabled in the name of the noble Baroness, Lady Blatch. Amendments Nos. 115, 118, 121 and 124 would remove from the Bill the power of the Secretary of State to make an order substituting a new period of time for exclusion orders, and curfew and exclusion conditions and drug abstinence orders. Primary legislation, as the noble Baroness

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acknowledged, would therefore be required in order to make such changes to the maximum available length of these orders and requirements.

The delegated powers which are the subject of these amendments have already arisen as part of our evidence to the Delegated Powers and Deregulation Committee of this House. We have considered carefully all the pros and cons relating to the nature of these powers and their exercise, and have paid particular attention to the committee's recommendations. Our thinking has led us to the conclusion that it is appropriate in these circumstances to provide such powers for the Secretary of State, although I shall of course explain why and of what kind.

These amendments concern the power to make changes to the periods of exclusion orders, as I have described. It seems evident that the noble Baroness, Lady Blatch, disagrees with the interpretation we have placed on these matters. The Delegated Powers and Deregulation Committee has recommended deleting these powers from the Bill; or, as I understood it, if the House accepts the need for the powers, making the procedure draft affirmative. We believe that this would be much better. That process would provide adequate parliamentary scrutiny and flexibility. We think that that is a strong and powerful argument.

However, I believe that these powers should be delegated for the reasons of flexibility and the existence of precedent. I deal with those points in turn. These orders are experimental in nature and are due to be piloted before implementation. The department cannot be absolutely sure about the most effective period at the time of legislating--that is, now. The proposed periods in the Bill are based on the best available evidence to date. If the pilots which are currently due to commence next year give an early indication that different periods would be more effective, it would be preferable to test those periods as well before national roll-out.

The maximum length of the exclusion order has been set at a year, partly on the basis that exclusion is less intrusive than the curfew order, the maximum period of which has been set at six months. However, that may be too short to act as an effective deterrent to a stalker or a perpetrator of domestic violence.

No doubt all members of your Lordships' House support the intention behind the orders, but, if there is no delegated power to amend the periods, their full potential may not be effectively tested. A suitable vehicle for primary legislation may not be available at the time. That is an important consideration.

There are precedents for increasing the maximum period of a community order by secondary legislation. They were identified in the oral evidence given to the Committee. In addition, the minimum and maximum periods for drug treatment and testing orders can be changed by secondary legislation under Section 58 of the Powers of Criminal Courts (Sentencing) Act 2000. My proposals are not unprecedented. That is a relevant consideration in the decision to use secondary legislation. That I why I believe that it is appropriate to retain the powers.

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That does not mean that I do not recognise and appreciate the point made by the noble Baroness and by the Delegated Powers and Deregulation Committee. I accept that all the relevant order-making powers should be subject to the affirmative resolution procedure. I am proposing amendments to that effect at this stage. For the sake of consistency, I am also proposing amendments to the Powers of Criminal Courts (Sentencing) Act 2000 so that changes to the period of the curfew order are made subject to the affirmative resolution procedure, rather than to the negative resolution procedure, as at present.

I hope that I have demonstrated the need for the delegated powers and the serious consideration that we have given to the various points that have been raised, not least by our action on the important issues. While I respect the arguments and concerns that underlie the amendments, I do not think that it would be appropriate to accept them.

The amendments tabled by the noble Lord, Lord Dholakia, would restrict the availability of exclusion orders and the exclusion requirements of community rehabilitation orders to offences specified in an order made by the Secretary of State. That could curtail the availability of exclusion orders and requirements, thereby depriving the courts of the ability to use the powers in deserving cases. The nature of the sentence does not demand such checks.

We are introducing new powers of exclusion so that courts have available to them an additional means of protecting those who could be at risk from an offender in the community. We recognise the public concern about such issues. In future, a court sentencing an offender for any offence that warrants a community penalty that is not fixed by law will be able to consider exclusion as an option. If it is important that the offender be excluded from certain places, the court may prohibit him from entering.

The court will also be able to order that the exclusion requirement is electronically monitored. Any breach of the requirement would register at the electronic monitoring control centre and appropriate action could then be taken. Electronic monitoring will provide better enforcement and better protection for the public. We regard it as a valuable new power for the courts. Of course, it will be for the courts to use such powers as they deem appropriate. We see no advantage in restricting their use to particular offences or offenders. We do not believe that it would be in anyone's interests to restrict the courts' powers in the way proposed.

Noble Lords may be concerned that exclusion orders or requirements might be used in inappropriate or unsuitable cases, but there can be no reason for courts to impose exclusion if it is not necessary.

In contrast, curtailing the availability of the power might deprive a court of the ability to protect a particular member of the public who was at risk from an offender, just because his crime had not been listed by an order. Any attempt to restrict a sentence in that way risks making it unintentionally unavailable in highly deserving cases.

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Exclusion will not be an arduous imposition on the offender. All that he has to do is comply with the requirement not to visit the prohibited place or places. That should not be too difficult. For those reasons, we are not able to accept these amendments.

7 p.m.

Baroness Blatch: I heard what the Minister said about the Delegated Powers and Deregulation Committee. I am deeply disappointed that he will be the first Minister of either party to break with the convention of accepting the committee's advice, which in this case was unequivocal. It said that even the affirmative resolution procedure would be contrary to its advice.

The Minister referred to precedent. On page 3, the report says:

    "The Home Office identified two precedents (sections 45 and 50 of the Powers of Criminal Courts (Sentencing) Act 2000)"--

one of this Government's Acts--

    "but they readily admitted that these were not an exact parallel".

Even the Home Office admits that the cases may well be precedents, but they are not parallels with the powers that are now being taken. The report goes on:

    "we consider that, in principle, the length of a sentence should not be extended by secondary legislation, and that this order-making power should be deleted from the bill".

The Minister said that it was difficult to get parliamentary time for new legislation. Having been in the department, I agree, although the Home Office does not have a bad record this year. This is the sixth Bill currently going through Parliament and there have been 14 Home Office Bills accepted since the Queen's Speech. We have parliamentary time now, because the Bill is before the House. If the Minister says that the Government may need to extend to two years, why not take a power to do that? The courts do not have to use it. It will be there to provide flexibility. If the department does not have time to draft such amendments, perhaps I shall do so on Report. As the committee suggests, the Home Office can give the courts flexibility under primary legislation.

Let us be clear about what is happening. The maximum sentences that courts can dispense are to be extended. The Minister has described very urgent circumstances in which a court says that it would like a bigger sentence at its disposal and the Home Secretary passes an order through Parliament. The parameters for sentencing are an important matter that should be dealt with in primary legislation. The House should take a view on whether to accept the unequivocal recommendation of the Delegated Powers and Deregulation Committee.

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