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Subsection (3) provides the power to share data,

Paragraph 71 of the Explanatory Notes states:

But it goes on to say that,

I found the words “may be” a very strange indication. Are there or are there not such powers elsewhere? If so, where are they and what impact will they have on the operation of the powers in the Bill? I beg to move.

Lord Bassam of Brighton: Clause 11 seeks to put beyond doubt the different organisations, public, private or third sector, that can share information with each other to ensure effective offender management. It clearly sets out the reciprocal rights of data-sharing between organisations and states that information can be shared only for certain defined purposes—I am sure the noble Baroness understands that—namely, probation, the performance of functions relating to prisons or prisoners, and the management of offenders, which also includes research, development and assessment of policies connected with the management of offenders. In practical terms, this means that one prison operator can inform another operator of security information that might be relevant to handling a prisoner when he is transferred from one company’s jail to another, or that a provider of probation services will be able to share an assessment of an offender’s risk factors with a local authority that will provide him with housing. Not only will it enable the system of managing offenders to function more effectively, it will also provide better research data. Additionally, it will enable us to evaluate and more effectively tailor rehabilitation programmes for offenders to reduce reoffending.

The amendment would provide that another item set out in the subsequent amendment can be listed in this clause. The insertion proposes that a listed party should be able to share information with another listed party. My understanding is that the proposed disclosure of information using this clause will have to be fully compliant with the Data Protection Act 1998, Article 8 of the European Convention on Human Rights and the common law of confidence in the usual way. We argue that the amendment is unnecessary, and that to allow those bodies with a lesser interest in offender management to share information with one another under this clause would risk creating the potential for confusion and, I would argue very firmly, the inadvertent misuse of the power. That is precisely what the clause itself is designed to avoid. Listed bodies are unlikely to need to share offender information with one another on a routine basis, and if information is required, it is much more appropriate that they speak directly with the source of the information from the agreed list.

Exchanges between the two parties as suggested in the subsequent amendment would not be authorised by this clause, and giving them the power to do so would raise real concerns that perhaps the noble Baroness might share. The purpose of the clause is to make clear that nothing in any way removes or modifies the legal safeguards to which any proposal to share data is automatically subject. I am sure that the amendment is probing in nature, but those are the reasons why we could not accept this approach and why Clause 11 is included in the Bill.

Baroness Anelay of St Johns: It is still as clear as mud, but the Minister was trying to be helpful. He gave an answer as to why my amendment is not necessary, and I understand that he has done so in order to put it on the record. It certainly is a probing amendment just to tease out what the Explanatory Notes actually mean. I shall have a look at Hansard to see if the response means more to me tomorrow than it does tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

[Amendment No. 94 had been withdrawn from the Marshalled List.]

Baroness Scotland of Asthal moved Amendment No. 95:

The noble Baroness said: Clause 11(7) provides the Secretary of State with the power to amend by secondary legislation any legislative provision which prevents or inhibits disclosure that the clause seeks to authorise. As originally drafted, that power applies to existing and future legislation.

In its recent report to Parliament on the Bill, the Delegated Powers and Regulatory Reform Committee recommended that the clause be amended so that it no longer covered future legislation. After considering the points made by that committee, we take the view that we should amend the clause to remove the power to amend future legislation. We accept that such a power is unusual and that the nature of the other powers conferred by this clause does not clearly justify a wide amending power.

However, in this amendment we wish to retain the power to amend legislation passed in previous parliamentary Sessions and in the same Session in which this Bill receives Royal Assent. Such a power is not unusual. Indeed, the Delegated Powers and Regulatory Reform Committee did not recommend that we remove this element of the amending power. If the amendment is accepted, the Secretary of State will have available an appropriate flexible solution if, in the future, we identify other legislation that prevents disclosure for no obvious reason other than it was not drafted in the knowledge that the Clause 11 power would subsequently be enacted.

We wish to re-emphasise the safeguards in the clause on how such a power to amend might be used. Any changes we seek to make to existing legislation so that it does not prevent the proper use of the Clause 11 power would need to be made by way of statutory instrument, subject to the affirmative resolution procedure. That will allow, therefore, an opportunity to debate all relevant issues in both Houses, and for a vote if it is thought appropriate.

We will also, of course, consult other government departments that have ownership of the legislation we might seek to amend. We recognise the real concerns that might be raised by the kind of information-sharing envisaged by the clause and wish to make clear, once again, that nothing in the clause removes or modifies the legal safeguards to which any proposal to share data is automatically subject. Consequently, any proposed disclosure of information using this power will have to be fully compliant with all appropriate legislation, including the Data Protection Act and the Human Rights Act.

I hope that I have fully explained why our amendments offer a sensible way forward. I beg to move.

Baroness Anelay of St Johns: I am grateful to the Minister for tabling the amendment. She introduced it by saying that the power the Government had been seeking was unusual and that they have ended up with a power that is not unusual. To say that the power originally sought was unusual is certainly an understatement. These, of course, are Henry VIII powers and, as the Delegated Powers and Regulatory Reform Committee said, it looks especially carefully at powers which enable the amendment of future Acts, as the full scope of the power cannot be ascertained when it is given.

We also look very cautiously and carefully at such matters and we were surprised that the Government sought such a power in this case. The power as originally tabled was sufficiently broad to enable the Data Protection Act 1998 to be overridden and, of course, to amend future Acts. As the Delegated Powers and Regulatory Reform Committee pointed out, the power to amend future Acts requires sufficient justification, which it found had not been provided on this occasion.

I am glad that the Government thought fit to respond properly to the recommendations of the Delegated Powers and Regulatory Reform Committee, but it shows that both that august committee and the House need to keep an eagle eye on the Government to make sure that they do not try the same thing again.

9.45 pm

Lord Wallace of Saltaire: I add only that what happened with the Bill was extraordinary, and it is entirely appropriate that the Government should respond in that way to the Delegated Powers and Regulatory Reform Committee’s report. We therefore welcome the amendment, and hope that the Government will continue to operate in such a flexible way, recognising that when reasonable criticisms are made they should make adjustments.

Baroness Scotland of Asthal: I hope that, by virtue of all the amendments we have accepted, that is absolutely clear.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

[Amendment No. 96 not moved.]

Clause 12 [Power to repeal section 4]:

Lord Ramsbotham moved Amendment No. 97:

The noble Lord said: We have a number of amendments relating to Clause 12. In addition to the two amendments I have tabled with the noble Lord, Lord Judd, which are largely textual, we have given notice of our intention to oppose Clause 12. Then there is Amendment No. 99, in the name of the noble Baroness, Lady Anelay, which contains a new clause for new procedures. I am in some difficulty over the order of these. We have spent considerable time today debating Clause 4 and all its problems, and the need to have clearly stated what the real probation issues are that should stay firmly in the hands of the public sector. We have been through all that, and we have reached considerable consensus about which items are likely to be put out to tender after three years, which might be tendered in the future and which might be tendered immediately.

I hope that, in the spirit of concession that we have just heard over the previous clause, the Minister will take away what has been said today on the whole issue of Clause 4, which we could then perhaps debate in more detail on Report—in which case I suggest that Amendments Nos. 97 and 98 should be taken in the context of Clause 4 as a whole. Therefore, although we have it down that the Secretary of State may repeal, that also ought to be considered in great detail when we discuss the issue of Clause 4 itself. That is a somewhat draconian measure, which is why I suggested that the Bill should not provide that the Secretary of State should be able, by order, to eliminate or change something that has had the full and undivided attention of this Committee for several minutes, almost hours, this afternoon. I stand by my recommendation, but I suspect it is too late to start debating the very important amendment in the name of the noble Baroness, Lady Anelay, and am fully conscious that we should reserve the rest of the Clause 12 discussion until we resume next Monday. I beg to move.

Baroness Anelay of St Johns: I made it clear at Second Reading, as reported at col. 128 of Hansard on 17 April, that I regard the limitation in Clause 4 to be fundamental to the Bill. I chose my words very carefully. It is a matter of policy, as the Delegated Powers and Regulatory Reform Committee observed at paragraph 28 of its report. The committee was right to say that, and we find it strange that the Government have also inserted the means for removing the safeguard in that clause by statutory instrument in Clause 12.

I gave a commitment at Second Reading that we wished to look at Clauses 4 and 12 very carefully in Committee. The noble Lord, Lord Ramsbotham, is right that we should be looking at Clause 12 through the gateway given to us when we talked about Clause 4. The difficulty is that we have not yet heard the arguments of the noble Lord, Lord Judd, who wishes to remove Clause 12 altogether. We may yet reach Clause 12 stand part tonight, in which case we may have the opportunity to hear from him, although it may not be until next Monday.

Any progress towards contestability should proceed cautiously. When the Government made the concession on Clause 4 at the 11th hour in another place—on Report—the Minister, Mr Sutcliffe, said that it was brought forward in that spirit. He said (at col. 960 of the Official Report of 28 February 2007) that he accepted that the House still had concerns about the pace and scale of change, and about what might happen in the future. That is an understatement if ever I heard one.

The reality was clear: the amendment was brought forward only because the Government Whips thought that they would lose the Bill at Third Reading if they did not and it was the only way of heading off a significant rebellion from their own ranks at the time. Clause 12 has the air of something rushed into a Bill to enable the Government to get their legislation via the secondary route that they would not have achieved by the primary route.

My honourable friend Mr Edward Garnier made it clear that we would not argue about what should be subject to contestability and at what stage we were happy for it all to be open to contestability under the proper conditions. Those arguments lie at the core of objections to the removal of Clause 4 by the statutory instrument powers in Clause 12.

The difficulty today is that so far we have not heard from the Government their justification for Clause 12. This is their opportunity to give that justification. The one given in another place smacked of a Government throwing a provision into the Bill to get out of a hole. There has to be a better justification than that for the statutory instrument route in Clause 12 and I hope that the Government will take this opportunity to give it. It is extremely opportune that we have reached this amendment at this stage; it means that I will have the opportunity to reflect between now and next Monday on the appropriateness of my Amendment No. 99, which would take a significantly different route in trying to square the circle. It tries to find a way out of the impasse between those who do not want Clause 12 at all and those who do.

It is important that the Minister gives us the justification for using the route the Government have here for removing something as significant as Clause 4 from primary legislation. I agree with the Delegated Powers and Regulatory Reform Committee that it is fundamental to the Bill.

Lord Wallace of Saltaire: We on these Benches support what has been said; at this late hour, I will not add more to that beyond saying that this is a very important issue for the Bill. We wait with interest to hear how the Government will explain it. I am happy that we will be able to return to it on Monday as well as on Report.

Lord Judd: o much of the ground that I wanted to go over on clause stand part has been covered that it seems appropriate to say at this juncture, as part of this general debate, that I had reached the same conclusions and reservations as have already been very well expressed but came to the conclusion that the matter was so central and important that the clause ought to be removed altogether rather than tinkering with it. That is why I wanted to oppose the clause standing part. I give notice of that and then when we come to it I can perhaps deal with it formally.

Baroness Scotland of Asthal: Clause 12 confers a power on the Secretary of State to repeal Clause 4, either partially or in its entirety, by means of an order. The order-making power under Clause 12 will be used if—and I emphasise if—at a future date the Government decide that it is the appropriate time to open up all or part of this area of work to non-public sector providers. An order under this power will be subject to the affirmative procedure by virtue of Clause 33(3)(b) to ensure that such a decision is subject to the appropriate parliamentary scrutiny.

In practice, this means that the Secretary of State will not be able to contract with providers from outside the public sector without further votes, both in this place and in the other. As I have said, we would bring forward such a proposition only if we were fully satisfied that appropriate safeguards were in place, and we would have to convince both Houses that this was the case.

I hope that in the explanations we have had throughout today and earlier in Committee we have all recognised that these proposals represent a significant change in the way that probation services are delivered. By these proposals, I mean the ones set out in this Bill. While we are eager to reap the benefits that the changes will bring, public protection remains our number one priority. Nothing must interfere with the day-to-day management of offenders. We intend therefore, as I have said on a number of occasions already, to proceed cautiously and carefully. The new arrangements will be introduced in a phased and measured way to achieve that.

Part of the process of getting this right is to ensure that we listen carefully to all those involved in implementing the proposals. One of the most consistent concerns expressed has been in regard to the work that probation does in relation to courts, especially in preparing reports. That has been echoed throughout our debates but it was strongly there in debates in the other place too. Therefore it is imperative that we retain the confidence of the court in the report writer. The courts rely, as a number of noble Lords have said in earlier debates, on the expertise that probation staff can bring to bear in assessing the risk posed by the offender, the circumstances of the offence and the appropriate disposals. This bond of trust is an integral part of ensuring that the offender receives the most appropriate sentence. We fully sympathise with these concerns and we have listened.

I hope that I have explained as clearly as I can that we will not seek to open up the core offender management work to competition until at least 2010. However, we recognise that there are particular issues around the work that probation does in relation to courts. While we do not rule out for all time the possibility of some of this work being done in the voluntary, charitable or private sectors, we recognise that those in the public sector are currently the experts and it will take some time before providers in other sectors are in a position to deliver this service to the standard that we require. So we agree that it would not be appropriate to open up this part of the work to other providers until such time as we can be sure that the necessary safeguards are in place.

10 pm

Lord Wallace of Saltaire: May I—

Baroness Scotland of Asthal: Perhaps if I just finish this part it may answer the question that the noble Lord anticipates.

Clause 4 and Clause 12 were added to the Bill at Report in the other place following a lengthy debate to meet the particular concerns expressed there. That was not because that was not our intent but because we were trying to explain that that was how this was going to work in an incremental way. It was clear that because this was the process that we had alighted on anyway, it would greatly assist to reassure other colleagues around the House that this was actually going to happen in the way that we all intended. It was for that reason that it did not come, as the noble Baroness suggests, almost at the last minute but as confirmation and consolidation. Perhaps the noble Baroness should look back at what my honourable friend Gerry Sutcliffe and my right honourable friend the Home Secretary said. To put it colloquially, the response was, “Prove it. Put it in the Bill. If you think that it will take this length of time and you are going to do it in a graduated, considered way, what safeguard can you demonstrate that this is in fact your intent”? It was with that in mind that these provisions were introduced.

Lord Wallace of Saltaire: I merely stress that the writing of court reports takes us close to an issue to which we shall have to return on a later amendment; namely, where the boundaries between the public and the private should fall in our mixed economy, and the question of how far some functions need to remain public functions because they are concerned with the choice between liberty and detention—the sort of punishment which is engaged. I just mark that this takes us very close to that philosophical but also extremely important legal question.

Baroness Scotland of Asthal: I hear what the noble Lord says about that but I ask him to reflect that we are already undertaking that sort of work in partnership in a mixed economy. The close alignment between the work done now by the voluntary sector and the public sector in particular, is being done in a conjoined, partnership way. I know that the noble Lord is not suggesting that we take a step backwards. We have to accept the reality that bodies in other sectors have developed the level of expertise which enables them and entitles them to do this work now. We are hugely grateful to those people for doing that work with us and for us.

Clause 4(1) provides that the Secretary of State may make contractual or other arrangements for “restricted probation provision” only with a probation trust or other public body. Clause 4(2) defines “restricted probation provision” as the giving of assistance to courts in determining the appropriate sentence to pass, or making any other decision, in respect of a person charged with or convicted of an offence.

The provision is therefore cast quite widely. As one would expect, it covers advice on sentencing, in the form of pre-sentence reports, but it also covers the provision of general advice, bail information and advice on enforcement issues through the prosecution of breaches of community orders. That is quite wide.


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