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Lord Hodgson of Astley Abbotts moved Amendment No. 89:

The noble Lord said: In moving Amendment No. 89, I shall also speak to Amendments Nos. 90, 92, 93 and 94, which are all about the code of practice. They concentrate on this already much debated issue but this time in relation to conditional cautions.

Clause 25(1) requires the Secretary of State to prepare a code of practice for conditional cautions. Subsection (2) details the provisions which are to be included; these are laid out in paragraphs (a) to (h). Having thus gone to some trouble to make clear the contents of the codes, it is perhaps surprising that the preamble includes not a prescriptive verb but a conditional one. In other words, subsection (2) provides:

    "The code may, in particular, include provision as to—"

followed by paragraphs (a) to (h). Amendment No. 89 seeks to remove this uncertainty about the contents of the code by replacing "may" with "shall". What is the purpose of all this elaborate drafting if the Secretary of State can then ignore it all? Once again, it raises concerns about what may or may not happen at some unknown date in the future.

Amendment No. 90 concerns the specific provisions of Clause 25(2)(d); it follows the discussions we had on Amendments Nos. 78 and 79 as to the suitability of a constable or investigating officer issuing conditional cautions. As we said then, we agree with the Law Society's view that police representatives of lower ranks are not trained or qualified to make judgments. But if, as the noble and learned Lord said, this is primarily about operating procedures and administration, that too is odd, because it seems in that case to duplicate to a large extent paragraph (f), which deals with,

    "the form which such cautions are to take and the manner in which they are to be given and recorded".

In the light of the noble and learned Lord's response to our earlier amendment, I am not quite clear about the difference between paragraphs (d) and (f).

The particular focus of Clause 25(2)(d) seems even more illogical when we consider Amendment No. 92. This requires the code—and here we return to the point raised by my noble friend Lord Elton—to include the role of the probation service in bodies which need to be involved in the code of practice. The probation service has hitherto been ignored, except in my noble friend's comments, yet it will bear the brunt of the work of enforcing the conditions attached to these cautions. Indeed, while we welcome the concept of conditional cautions, we are concerned whether the Government have fully thought through the funding implications. Nothing will undermine a good idea faster than a failure to administer it properly.

Our concern in Amendment No. 92 is more of a practical and administrative one. We are concerned about the weight that will fall on the shoulders of the probation service when it comes to monitoring the compliance of the conditions attached to the cautions.

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So it is surely imperative that the probation service has a chance to express its views about the practicalities of the various conditions regarding what is practicable, what is not, what would work and what would not and, for future planning, what has worked and what has not. This amendment aims to probe the Government as to why, since the probation service is to play such an integral part in this area, it is not even mentioned in the extensive list given in Clause 25(2).

Amendment No. 93 draws attention to the importance of proportionality in imposing conditions on cautions by adding an additional provision, paragraph (i), to the matters about which the code of practice must make provision—for example, returning to an earlier debate, in connection with cautions issued to those with mental problems. Ministers in the other place have stressed the importance of having flexibility when it comes to the letter of the law. Given rapidly changing social attitudes and conditions, we accept that this is a valid consideration, but there needs to be some limitation. This amendment is aimed at avoiding the possibility of the use of unfair or unreasonable conditions being enforced upon someone who does not realise that they might well be unable to meet them.

Amendment No. 94 would require the affirmative resolution procedure to be used for all revisions to the codes of practice that govern conditional cautions. This repeats the discussion we had over Amendments No. 38 and 39, which were tabled to ensure that proper parliamentary scrutiny took place when the Secretary of State chose to revise the PACE codes. However, while by Amendment No. 37 the Government accepted a measure of parliamentary scrutiny over the PACE codes, the codes of practice that will govern conditional cautions have not been given the same attention. We think this is wrong. Conditional cautions are an important development in the Government's criminal justice policy. If the concept works well, it could play an important role in keeping down the prison population, but the way in which it operates should be given proper parliamentary scrutiny. I beg to move.

6 p.m.

Lord Renton: We must be precise. We must not leave too much to the discretion of the officer who issues the caution. It is right, therefore, that the codes of practice should be clear in ensuring that the cautions are precisely worded. Therefore, I support the various amendments moved by my noble friend.

There is one amendment which I am glad he moved. Clause 25(2)(d) refers to,

    "the category of constable or investigating officer by whom such cautions may be given".

It may be that owing to the passage of time my knowledge of types of constable has become somewhat uncertain. I thought that there were only constables and constables and not various categories of constable. We need an explanation as to what the,

    "category of constable or investigating officer"

will be. In any event, I should have thought that any constable should have power to issue a conditional caution. Perhaps paragraph (d) should be left out.

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Amendment No. 94 is important. We are breaking new ground here. It is only right that a draft should be laid before each House of Parliament for approval. Therefore, Amendment No. 94 is of value.

Lord Carlisle of Bucklow: In a debate on a previous clause, I thought that the noble and learned Lord the Attorney-General said that the probation service was not to have anything to do with the conditions as regards these cautions. If so, who is? I do not understand who will monitor and control the conditions relating to facilitating the rehabilitation of the offender if it does not in some way come under the aegis of the probation service. I shall be grateful to hear the government's proposals on who will do so. I understood him to say that it would not be the probation service.

Lord Goldsmith: I shall speak to Amendments Nos. 89, 90, 92, 93 and 94. Amendment No. 89 would insert "shall" for "may" thereby insisting that the code must cover all of the matters dealt with. Imposing that requirement by primary legislation seems to us to be unnecessary. The code will have to be laid before Parliament—I shall come back to that—and has to be published in draft. The Secretary of State has to consider representations about it. He has to obtain the consent of the Attorney-General and then lay it before each House of Parliament. It may be that at some stage—plainly it is not our view at present—it may appear unnecessary for the code to contain one of the provisions, for whatever reason that may be. If Parliament is not happy that that matter is not dealt with, it will be able to make that plain when the code is brought before it. It seems unduly restrictive to insist that each of these matters is dealt with in the code—even though they would not be included as items which the Secretary of State can include in the code—if it did not seem at present that a code should cover those issues.

If the noble Lord, Lord Renton, were right, Clause 25(2)(d), for example, would not be necessary because there would be no constable other than a single rank of constable. I am told that the word "constable" is used in the widest form and even a chief constable could be a constable. But, of course, there would be other investigating officers. By way of example, if the noble Lord had pressed successfully the amendment to a previous clause to delete the reference to "constable", this provision would disappear.

That is why I resist making it a requirement that each and every single one of these matters should be listed in the clause. Parliament will see the code when it comes forward and will be required to express its approval.

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Amendment No. 90 seeks to remove paragraph (d) on the basis that it would have been consequential on Amendments Nos. 78 and 79 which have not been pressed.

Lord Hodgson of Astley Abbotts: It also duplicates what is in paragraph (f).

Lord Goldsmith: I beg to differ. Paragraph (d) deals with the identity of the person who may give the caution. Paragraph (f) deals with the form that such cautions are to take and the manner in which they are to be given and recorded. The manner in which they are given and recorded is not the same as the person who may give them. Both provisions are necessary and desirable.

Amendment No. 92 would add a reference to the probation service. In answer to points raised on an earlier clause, I indicated that I wanted to give further information about the way in which the Government see the conditional cautions being supervised and monitored. I indicated then that part of the responsibility would be that of the prosecution service because that is the one imposing the conditions.

I accept that it is an important question. Therefore, if noble Lords will allow it, I shall return to that issue. For the time being, I resist the insertion of a reference to the probation service. On the face of it, the service deals with medium and high-risk offenders. I am advised that a legislative change would be necessary, as I indicated previously, if its statutory duties were to be extended to offenders who were to be cautioned as opposed to offenders who have been convicted.

There is no need for the clause to specify as an issue to be covered the involvement of the probation service.

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