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Lord Carlisle of Bucklow: Perhaps I may—

Lord Goldsmith: I think that the noble Lord, Lord Elton, had wished to intervene.

Lord Elton: I was sure my noble friend would get there first. I am grateful, therefore, to be given the handicap of starting.

When the noble and learned Lord writes about the involvement of an agency other than the probation service—if that is how he will proceed—I hope that he will go beyond the question of the statutory trigger which has not been used when a caution is substituted for a prosecution. I understand that under present legislation the probation service would not be involved because it requires a prosecution to trigger the involvement of the probation service. If that is not the case, a fortiori I ask him to address the question as to why the probation service is not being included in this work which is so germane to its training and experience. When he referred to the prosecution service a moment ago, he introduced a new word. He said that it will be partly responsible, as opposed to responsible, for the supervision of the conditions.

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It is a highly technical matter. I hope that there has been consultation with the probation service and others concerned, or that there will be before a decision is made. I find myself in some anxiety about handing this function to something so different from the probation service as a prosecution service.

Lord Goldsmith: I agree, that it is not only a technical matter, it is also important. That is why I wanted to be able to give noble Lords a full and considered answer rather than simply indicating where we are at the moment. I have already used the phrase "partly responsible", which the noble Lord, Lord Elton, has, with eagle eyes, picked up on. I hope that noble Lords will accept that I do not wish to say any more until I am able to give a more detailed and considered answer.

Lord Carlisle of Bucklow: Is the Minister sure that he was right when he used the word "convicted"? He said that the probation service had dealings only with people who had been convicted. Does it not also have powers over people who have been bailed and are in bail hostels?

Lord Goldsmith: That is another reason why I should give a full answer after today's Committee stage. I am grateful to the noble Lord, Lord Carlisle, for that comment. I shall certainly look into the matter.

Lord Renton: I did not hear the Minister deal with Amendment No. 94, requiring a draft to be laid before Parliament.

Lord Goldsmith: I apologise for failing to deal with that. In fact I failed to deal with both Amendments Nos. 93 and 94. An intervention was made and I had forgotten that I had not completed my speech.

Amendment No. 93 would add to the list a new item:

    "deciding, having regard to the character and background of the person to be cautioned, the appropriateness of conditions which may be attached".

That appears to add little to the existing subparagraphs relating to the circumstances in which conditional cautions might be given and the conditions which might be imposed.

Regarding Amendment No. 94, the provisions of the Bill as it stands require the code to be laid before each House. By virtue of Clause 299, the statutory instrument containing the order must be laid in draft beforehand and approved by a resolution of each House. It is not apparent to me what is missing from those provisions. In other words, the code has to be produced in the form of a draft order, which must be laid before both Houses, and approved by affirmative resolution. Why is it necessary to add anything further? Surely the effect is that for which the noble Lord contends. I hope that I have now dealt with all of the amendments.

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Lord Hodgson: Clearly, I had not read Clause 299 carefully enough. Regarding Amendment No. 89, I appreciate the points that the Minister has made. As ever, he is persuasive in the way that he argues his case. However, the reality is that the Government have chosen to draft the Bill with eight conditions which they think are important as part of the code of practice. Having gone to that considerable trouble, they then put "may" rather than "shall". He said that this imposed a requirement—you bet it does. He said that it was unduly restrictive—it may not be "unduly" restrictive, but it is restrictive and is meant to be restrictive. The operation of conditional cautions and this code of practice are important. To have a code which might vary completely from subsections (2)(a) to 2(h) is a mistake. There should be a restriction on the Secretary of State to produce codes which deal with paragraphs (a) to (h)—the heart of the whole question of conditional cautions. Without the issues covered by paragraphs (a) to (h) one wonders how on earth there can be a proper code. Therefore, I beg leave to test the opinion of the House.

6.15 p.m.

On Question, Whether the said amendment (No. 89) shall be agreed to?

Their Lordships divided: Contents, 74; Not-Contents, 145.

Division No. 1


Allenby of Megiddo, V.
Ampthill, L.
Anelay of St Johns, B.
Astor of Hever, L.
Biffen, L.
Blatch, B.
Bowness, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Byford, B.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Denham, L.
Dixon-Smith, L.
Elton, L.
Fookes, B.
Fowler, L.
Freeman, L.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goschen, V.
Gray of Contin, L.
Hanham, B.
Hanningfield, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Howell of Guildford, L.
Laird, L.
Lane of Horsell, L.
Lindsay, E.
Lucas, L.
Luke, L.
McColl of Dulwich, L.
Maginnis of Drumglass, L.
Marlesford, L.
Mayhew of Twysden, L.
Moynihan, L.
Naseby, L.
Noakes, B. [Teller]
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Parkinson, L.
Pearson of Rannoch, L.
Plumb, L.
Rawlings, B.
Renfrew of Kaimsthorn, L.
Renton, L.
Rogan, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selsdon, L.
Sharples, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taylor of Warwick, L.
Trefgarne, L.
Wakeham, L.
Wilcox, B. [Teller]


Addington, L.
Ahmed, L.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Bradshaw, L.
Brett, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Dahrendorf, L.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grenfell, L.
Grocott, L. [Teller]
Hamwee, B.
Hardy of Wath, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hollis of Heigham, B.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jordan, L.
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lipsey, L.
Livsey of Talgarth, L.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Murray of Epping Forest, L.
Nicol, B.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Perry of Walton, L.
Pitkeathley, B.
Prashar, B.
Radice, L.
Ramsay of Cartvale, B.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
Sawyer, L.
Scotland of Asthal, B.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thomas of Walliswood, B.
Tordoff, L.
Turner of Camden, B.
Walmsley, B.
Walpole, L.
Watson of Invergowrie, L.
Watson of Richmond, L.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord President of the Council)
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

14 Jul 2003 : Column 682

6.25 p.m.

[Amendment No. 90 not moved.]

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