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Lord Renton: I wonder whether my recollection is right. I have always understood that where Parliament has laid down sentences, power to change what Parliament has laid down has been avoided. We should not have subordinate legislation to alter the importance of the fixing of sentences.

Lord Mayhew of Twysden: Can the Minister remind the Committee what the Select Committee on Delegated Powers and Regulatory Reform said about this? It would have expressed an opinion and I think it made the point that my noble friend has just made, although I may be wrong about that. However, it is rather important.

6.45 p.m.

Baroness Scotland of Asthal: I do not believe that this was an area of criticism. I shall check on that. I say that because all the areas of criticism have been brought to my attention and there is not one in relation to this matter. I can certainly undertake to clarify that point for the noble and learned Lord. Yes, I am right. The Select Committee accepted it and did not consider that there was anything wrong with it.

The reason is that we are not reviewing the sentence; we are assisting in the enforcement of that sentence. One is not changing the sentence. If I were to accept the amendment tabled by the noble Baroness, we may be at risk of resentencing, which would not be appropriate. However, we do not seek to do that. We are seeking to allow the court to monitor the compliance with the sentence that it makes. Noble Lords will know that if compliance is an issue and if the court does not feel that proper control can be maintained to ensure that the offender complies, the court may be less minded to give a community sentence. It is seen by sentencers as something that they would want to have so as to keep a proper handle on what happens.

Lord Mayhew of Twysden: Before the noble Lord, Lord Carlile of Berriew, replies perhaps I can make two points that I should have made earlier. First, it is fine and large when we read what has been described as the community order menu—all these very important and desirable variants that are available—but it will be critically important that enough money is available for the various services that have to deliver them. I do not have first-hand knowledge of this but one has read of great difficulties within the probation service and it would be reassuring to the Committee to know—the

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noble Lord, Lord Carlile, may like to pose a question about this—whether there is specific provision for the financial consequences of this part of the Bill. Otherwise, it will simply create many opportunities that, like so many in this area, will be lost for lack of resources.

My second point is that I welcome Amendment No. 173FA which states:

    "The court may make repeated use of a community order",

because an unfortunate fact is that community orders do not have a much better non-recidivism record than custodial sentences. That leads people to think that it is a soft option and one that is a sign of weakness if resorted to repeatedly. One has to acknowledge that in nearly as many cases the offender reoffends, but it seems to me that it is better to risk that than to send someone to a prison again where the same lack of resources and inability to deliver on its mission statement will be found.

This week I have already alluded to Sir David Ramsbotham's recently published book. It makes lamentable and miserable reading to see how frustrated decent and well-meaning prison officers are because of a lack of resources. I agree with what has been said by the right reverend Prelate, that non-custodial sentences or a community order should be regarded as punishment and that the punishment character of them should be emphasised. Therefore I believe that it is well worth including a statement of fact or principle in the Bill, such as Amendment No. 173FA provides.

Lord Carlile of Berriew: We have had an interesting debate on the issues raised by our amendments and by the amendments tabled by the noble Baroness, Lady Anelay. I am grateful to the Minister for her explanation of Clause 170. This is another of those issues upon which there is a shared sense of purpose among all parties in the Committee and all Members of the Committee. The question is how explicit the legislation is about how that purpose is achieved. We would have wished for greater clarity in the text of the Bill.

The noble and learned Lord, Lord Mayhew, raised an extremely important point. My understanding of the situation is that there is no ring-fenced money for the provision of community correctional services. Community sentences represent good value for money, even if one is pessimistic and takes the view that people are no less likely to re-offend after a community sentence than after a prison sentence. A community sentence demonstrably represents better value for money and better value in social terms because it does not dislocate the family of the offender as much as a prison sentence.

We have become accustomed very quickly in this Chamber to the wise contributions of the right reverend Prelate the Bishop of Worcester. I suggest that his remarks about proportionality should be required reading for judges as well as for those engaged in policy making. That was a very important point in relation to wider issues as well as to the narrow issue we are debating.

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Having regard to what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 173FB not moved.]

Clause 170 agreed to.

Clause 171 [Power to provide for court review of community orders]:

[Amendments Nos. 173G to 173J not moved.]

Clause 171 agreed to.

Clause 172 agreed to.

Schedule 7 [Breach, revocation or amendment of community order]:

Lord Carlile of Berriew moved Amendment No. 173JA:

    Page 224, line 8, leave out paragraph (c).

The noble Lord said: In moving Amendment No. 173JA, I shall speak to the amendments standing in the name of my noble friends. The amendments raise an issue of principle with which I can deal briefly. There are many minor offences which are not punishable by imprisonment, but some people who choose not to obey orders placed upon them by the court or to pay the fines ordered by the court, nevertheless end up in prison.

As a matter of principle, I would argue that we should use every means possible to avoid having people who have committed an offence which is not punishable with imprisonment, end up in prison in effect because the starting point of the whole condition was that they committed an offence not punishable with imprisonment. Professor Andrew Ashworth, who is one of the foremost criminologists in this country and whose opinion is very widely respected, not least through his lectures to the Judicial Studies Board and his many articles in the Criminal Law Review, has described something he calls "condition creep". It is a process whereby someone commits a minor offence but, perhaps because of an unjustifiable attitude, ends up in prison because he does not obey the court's order.

We on these Benches ask the question founded on principle: is it really right that those people should end up in prison at all? Surely there are other ways to deal with them; for example, by attachment of earnings orders or otherwise removing money from them, which would avoid their cluttering up the prisons.

The noble and learned Lord, Lord Mayhew, referred a few moments ago to Sir David Ramsbotham's remarkable, though not unexpected, published views about his experience as Chief Inspector of Prisons. He was not appointed by this Government. Sir David came to the prisons from a military background and I suspect that it was expected that he would not rock the Government's boat over the prison system. But he did. He was right to do so. I think we all recognise that. Part of the evidence for the Ramsbotham thesis—if I can call it that—is that there are far too many people in prisons, taking up space and costing taxpayers ridiculous sums of money, who really should not be there.

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If one were to pick one category of people to shed from our prisons, surely it would be people who have committed offences which never were punishable by imprisonment. I beg to move.

The Deputy Chairman of Committees (Lord Carter): If Amendment No. 173JA is agreed to, I cannot call Amendment No. 173K for reasons of pre-emption.

Baroness Anelay of St Johns: I shall speak to my Amendments Nos. 173K to N, which are grouped with those of the noble Lord, Lord Carlile of Berriew. We go from the general principle, set out so clearly by the noble Lord, Lord Carlile, to some specific questions.

As set out by the noble Lord, Lord Carlile of Berriew, Part 2 of Schedule 7 to the Bill lays out the procedure for dealing with offenders who have breached the requirements of their community sentence. My amendments relate to the criteria in the schedule, which will allow the court to impose a custodial sentence for a breach of a community order in circumstances where that custodial sentence could not have been imposed for the original offence, either because the offence was not one punishable with imprisonment or because the custody threshold set out in Clause 144 was not passed.

In both cases the criterion under which the courts are to be empowered to impose a custodial sentence for breach of a community order is that the offender has "wilfully and persistently" failed to comply with the requirements of the community order. My amendments refer specifically to the word "persistently" in this context. There is a little deja vu here because again I ask the Minister: what do the Government mean by "persistently"? On Monday the Minister responded that three was the magic figure and she explained why.

I tabled these amendments and kept them on the Order Paper for today with the decision of the Court of Appeal in the case of S (A) very much in mind. The case is reported in Volume 1 of the Criminal Appeal Reports (Sentencing) for 2001, at page 62. In that case the Court of Appeal held that a juvenile offender with no previous convictions could be a "persistent offender" for the purposes of Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000. That was on the basis that the offences of which he had been convicted were serious and were committed over a period of two days. So it is clear that the courts are indeed prepared to take a very wide approach to the definition of the word "persistent". My question is: do the Government intend that a similarly wide approach should be taken under the Bill in the context of sentencing offenders to custody for "persistent" breaches of their community orders? Is that the course they are taking, or are they sticking by their Monday definition?

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