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In responding to Amendment No. 82, I believe that it is important to emphasise that the CPS voluntarily sought regulation from the Institute of Legal Executives for its designated caseworkers. There is nothing to be gained by placing such regulation on a statutory footing. As I hope I made clear in my letters, to do so would require a significant amendment to the Legal Services Act 2007. At present, and by virtue of the fact that designated caseworkers are granted their rights of audience through statute, they are currently exempt from regulation under the Legal Services Act. This, I believe, was debated when that matter was going through. To amend the Legal Services Act would be disproportionate and unnecessary, given the public commitment of the CPS to working closely with the Institute of Legal Executives to bring about meaningful regulation. I am very happy that the noble Lord, Lord Kingsland, referred to that matter in his remarks.

Perhaps the overriding concern is reflected in Amendments Nos. 83 and 84. A designated caseworker may deal with cases where the nature of the offence may leave the defendant liable to a sentence of imprisonment. I have made it clear that the Crown Prosecution Service would internally limit the deployment

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of designated caseworkers, using the DPP’s statutory powers under the Prosecution of Offences Act 1985 to issue general instructions. I remind the House that those instructions have been in situ for the past 10 years; they have worked extremely well and no one has suggested that they have not properly regulated the way in which designated caseworkers have done their jobs. This would have the same practical effect as limiting the clause. I have also made it clear that there would be the added safeguard of the Attorney-General, who would have to consent to any change. I am happy to repeat those undertakings today.

However, in light of the concerns that have been expressed both on the last occasion and today, I also propose that an independent review be undertaken by Her Majesty’s Crown Prosecution Service Inspectorate and that independent advice be provided to the Attorney-General before any decision is made to remove or amend the internal restriction. I hope that this added safeguard will reassure the House on this important point. There would be an independent scrutineer of whether it was appropriate to make a change before any such change took place.

An important general point needs to be taken into account in considering the merits of this clause. The ability of the Crown Prosecution Service to grow and encourage the development of designated caseworkers through the Institute of Legal Executives route is one that we should all commend. We have for many years expressed a desire to make the profession more open to both genders and to people from minorities. We know that women and members of the black and minority ethnic community often find it difficult to go immediately from school to university but work very well once they are in a situation where they can be trained and come forward. We have found that designated caseworkers have been a very rich vein. One designated caseworker is now the chief prosecutor in Devon and Cornwall; she is acknowledged to be of real value.

There is merit for the criminal justice system. Fellows of the institute who attain the advocate certificate have wide-ranging powers. To limit those powers in the clause would be to miss an opportunity to use their talents to prosecute a wider range of summary trials, including those where imprisonment is a sentencing option. I remind the House that it takes five years of additional training before an ILEX member can get an advocate’s certificate, so that they are fully conversant with all those important technical issues.

The noble and learned Lord, Lord Mayhew, asked about the Magistrates’ Association. He is absolutely right: the Magistrates’ Association expressed anxiety about the move and was antipathetic to it. The noble and learned Lord, Lord Mayhew, is also right that it spoke about the unamended version of the first iteration of this clause. I have written to it subsequently. I do not have a letter from it, but I understand that in conversations with the CPS it has indicated that it is happier now with the status. However, it still expressed some concerns about the details. I am afraid that I do not have anything in writing, so I cannot tell noble Lords what particular detail might have caused continuing difficulty. The association is certainly happier. The

21 Apr 2008 : Column 1313

issue about which it was concerned was similar to that voiced in this House about imprisonable offences.

I turn, finally, to where we are now. Amendment No. 84A would remove paragraph (d) of the definition of a preventative civil order. The effect of this amendment, which the noble Lord, Lord Kingsland, did not speak to, but I assume he still wishes to—

Lord Kingsland: My Lords, I had imagined that that matter would be dealt with by the noble Lord, Lord West of Spithead, but I did not see him in his place so I omitted to say anything about it. However, we think it wholly inappropriate for a non-legally qualified CPS employee to deal with a VOO, which is an assessment of whether somebody is safe to remain at large in society. It is wrong for somebody who is not legally qualified to deal with a matter which could lead to indefinite incarceration.

Baroness Scotland of Asthal: My Lords, I hope that I will be able to assist the noble Lord. The effect of the amendment, as he suggests, would be to remove the general power of designated caseworkers to conduct post-conviction applications or other civil proceedings to obtain preventive orders that do not come within the ambit of paragraphs (a) to (c) of the definition. At present, the only orders to fall within paragraph (d) are the sexual offender prevention orders. However, while sexual offender prevention orders would fall within this paragraph, the role of the prosecutor is confined to reminding the court that it has the power to make such an order and not to lead any evidence. That is literally what they do: they just remind the court. I do not think that the noble Lord would take issue with somebody being entitled to remind the court of its duty in that regard.

In essence, therefore, the primary purpose of paragraph (d) is to ensure that designated caseworkers have rights of audience to conduct proceedings were any new orders to be introduced through future legislation. This would of course be subject to the director’s guidance as to whether the CPS thought it appropriate for them to appear. In reaching such a decision, due regard would have to be paid to ensuring that their powers were no more than those capable of being exercised by a Crown prosecutor. I hasten to add that violent offender orders would not come within the remit of a designated caseworker, as Part 7 of the Bill provides for applications for such orders to be made by the police and not by prosecutors. So that would not be within their purview. I understand the noble Lord’s anxiety on that, and I am happy to assure him that I can ease his troubled heart.

Lord Thomas of Gresford: My Lords, the noble and learned Baroness wished me to remain in my seat until she had finished her response. I have done so, although I wanted to ask, in the context of what she was saying, about an article by Frances Gibb which appeared in the Times on 19 February. It was headed:



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The noble and learned Baroness must have read it, as it is very much within her area. It states:

That is described as an “internal survey” for the Crown Prosecution Service. Was there such a survey—was that a correct statement? If so, how does it accord with everything that the noble and learned Baroness has told us about the training of those intended to undertake this work?

Baroness Scotland of Asthal: My Lords, I understand that a survey has been carried out but I do not know its final results; I have not seen a report. However, I can point to issues to which I alluded in Committee—namely the reports from Her Majesty’s inspectorate and from the Audit Commission, both of which speak highly of outcomes and the professionalism of those who undertake this work. I can also reiterate the CPS’s commitment to ensuring that designated caseworkers who undertake representation in court have the necessary skills. As noble Lords will know, there are designated caseworkers who do not appear in court. We have, as I said earlier, a number of tiers of designated caseworkers. One of the benefits of the tiers is that those who qualify as designated caseworkers can move through the system obtaining greater training and opportunities, either becoming ILEX members or taking solicitors’ or barristers’ exams. We therefore have the full spectrum.

6.45 pm

The moderated provisions which we have put forward meet the concerns that noble Lords have raised. All of us agree that DCWs should not do work that could involve an individual going to prison; we absolutely agree on that, and we believe that the provisions we have put forward would cope with that. If the House were to disagree to the amendment and the Bill were to provide that DCWs should have no opportunity to do work that might involve imprisonment, we could have an order-making power, probably an affirmative power, so that the matter could come back in that way. It is unnecessary to use the panoply of primary legislation to deal with an issue which could be dealt with by order. I hesitate to use the phrase used by the noble Earl, Lord Onslow, but it really would be taking a sledgehammer to crack a nut. I know how much the House dislikes that.

Baroness Carnegy of Lour: My Lords, I have listened with enormous interest to this debate. It seems that much the most important thing was said by my noble and learned friend Lord Mayhew when he asked about the magistrates’ view. The most important thing that the noble and learned Baroness has said to us is that the magistrates have said that they are happier, but not yet happy. She was unable to tell us the precise areas in which they are not happy because they have not yet written to her.

Speaking as somebody who sat not as a magistrate but as the Scottish equivalent, an honorary sheriff, I think that the whole question hangs on whether the

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magistrates feel that cases will be put properly before them and they will get the help they need in making decisions. I suspect that magistrates need that help more than other judges do, and it is important that they get it. That seems the overwhelming problem. It is a complicated matter, but if the magistrates are not yet happy with the arrangement, the House ought not to reject the amendment.

Baroness Scotland of Asthal: It is difficult, my Lords. I wrote to the chairman of the Magistrates’ Association on 12 March, and I know from experience that when the Magistrates’ Association is keenly concerned and/or anxious, it will write back speedily. I have not yet received a response. Because I had not received a response, an inquiry was made, and the indication which I have given to the House was given to those who instruct me. I therefore cannot help the noble Baroness on the magistrates’ current position. All I can do is to assure the House that the CPS’s primary concern is to ensure that the quality of the prosecution given to the magistrates is of the highest quality.

We have had no reason to think that the designated caseworkers who have been given power to present cases have been found wanting; they have not. They have done their job and done it well. That is something for which they should be commended.

Lord Kingsland: My Lords, I thank the noble and learned Baroness for her full reply and thank all noble—and noble and learned—Lords who have spoken in this debate. I ask forgiveness from all of your Lordships if I do not refer to each excellent contribution.

The noble and learned Baroness expressed concern about my troubled heart. If I may plagiarise a famous line from the film “Casablanca”, my heart is my least vulnerable organ.

The noble and learned Baroness seemed to suggest that the leitmotif of my intervention was that the Bar was under threat. I respectfully suggest that either I misspoke, as a famous lady across the Atlantic said, or at least I did not speak with enough clarity. My proposition is not that the Bar is under threat from the Government’s proposals, but that the defendant is under threat as a result. That is the basis for all the concern that we have been expressing this afternoon.

I agree with the noble and learned Baroness that the Government share our view that, at this juncture, it is appropriate for non-qualified CPS employees to deal only with summary offences that do not have a sentence of imprisonment at the end. There is no difference between us on that matter. The only question is whether we want to go a step further some years hence. Should the Government have to come back with primary legislation or can this matter be dealt with more informally? The noble and learned Baroness with typical generosity made a concession in saying that she would introduce a further safeguard of an independent qualified lawyer to look at a proposal by the CPS to make this transition. I am grateful to her for going to the trouble of doing that, but on balance I still prefer our amendment.



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I have no doubt whatever about the quality of DCWs. There are many extremely well-qualified DCWs in the CPS, but the noble and learned Baroness will have heard many of your Lordships express concerns about the adequacy of the training that they are likely to receive. I am particularly exercised by the fact that, although a deal will be struck with ILEX on these matters, which I hope will be satisfactory—I am thinking particularly of the remarks of the noble Viscount, Lord Bledisloe, on the issue—it is also important that they are seen to be properly qualified. That is why the intermediation of an approved regulator is so important. I accept that that is prohibited in the 2007 Act because of the provision in Schedule 3; but if these amendments are passed by the House that will be a later proposal and therefore the provision in the 2007 Act will fall.

I am grateful for the Minister’s assurance about the VOOs, but frankly this matter should not be handled in any circumstances and in any way by DCWs. For all those reasons, I wish to test the opinion of the House.

6.53 pm

On Question, Whether the said amendment (No. 82) shall be agreed to?

Their Lordships divided: Contents, 183; Not-Contents, 113.


Division No. 3


CONTENTS

Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
Ballyedmond, L.
Barker, B.
Bell, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Campbell of Surbiton, B.
Carnegy of Lour, B.
Cathcart, E.
Chadlington, L.
Chidgey, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dear, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Garden of Frognal, B.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hanham, B.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.


21 Apr 2008 : Column 1317

Home, E.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
James of Blackheath, L.
James of Holland Park, B.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Liverpool, E.
Lloyd of Berwick, L.
Low of Dalston, L.
Luke, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maddock, B.
Mancroft, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Monson, L.
Montagu of Beaulieu, L.
Montgomery of Alamein, V.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Neill of Bladen, L.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northover, B.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Palmer, L.
Park of Monmouth, B.
Patten, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Ramsbotham, L.
Rawlings, B.
Razzall, L.
Reay, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Russell-Johnston, L.
Ryder of Wensum, L.
Saatchi, L.
St John of Fawsley, L.
Seccombe, B.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Slynn of Hadley, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Warsi, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wright of Richmond, L.
Young of Hornsey, B.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.


21 Apr 2008 : Column 1318

Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Gale, B.
Gilbert, L.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Lofthouse of Pontefract, L.
Macaulay of Bragar, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Newcastle, Bp.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Snape, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Triesman, L.
Tunnicliffe, L.
Turner of Camden, B.
Vadera, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitty, L.
Wilkins, B.
Young of Norwood Green, L.
Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

7.05 pm

Lord Kingsland moved Amendments Nos. 83 to 84A:

On Question, amendments agreed to.

Lord Ramsbotham moved Amendment No. 85:

“Looked-after children in custody(a) a child looked after by a local authority who is taken into custody;(b) a child or young person being held in custody who was previously being looked after by a local authority;(c) a child or young person who has been released from custody but who was, prior to his or her detention, being looked after by a local authority; and
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