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House of Lords

Tuesday, 30 October 2012.

2.30 pm

Prayers—read by the Lord Bishop of Wakefield.

Private Military and Security Companies


2.35 pm

Asked By The Lord Bishop of Wakefield

To ask Her Majesty’s Government what assessment they have made of the effect of their use of private military and security companies upon the United Kingdom’s reputation, and its diplomatic and military relationships with those countries in which such companies operate.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the Government use private security companies to support UK missions in countries emerging from conflict, principally in Afghanistan, Iraq, Libya and Yemen. They are not military companies and operate with the permission and co-operation of host Governments. We work with host Governments to address any concerns raised. We are working with the industry to raise standards globally by establishing a voluntary, independently audited and internationally recognised regulatory system that is practical, effective and affordable.

The Lord Bishop of Wakefield: My Lords, I am grateful to the Minister for her response but would like to press a little further. Has the use of such private companies instead of the Royal Military Police increased the risk of attacks by uniformed Afghans on Her Majesty’s government officials protected by armed contractors? I have in mind particularly the recent death of two British soldiers killed by an Afghan man wearing local police uniform. Does the Minister accept that such examples illustrate that it is now time for statutory regulation to ensure that the conduct of PMSCs does not aggravate local attitudes that may turn Her Majesty’s government officials into similar targets?

Baroness Warsi: The right reverend Prelate asks a very important question. He may be aware that private security companies are used in very specific tasks: they are used in a defensive not an offensive way, predominantly to protect embassies and provide close protection and sometimes rapid response. That is always done in conjunction with discussions with the states in which we work. The right reverend Prelate will also be aware of our obligations as a state under the Montreux document and the principles laid out in the international code of conduct which governs the conduct of private security companies.

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Lord Wright of Richmond: My Lords, does the Minister accept that, in my experience, most diplomats regret the occasional need for close protection, whether by private companies or our own security personnel, since it constrains one of the main aims of diplomacy—to develop contacts as widely as possible and at all levels, and to travel round the country and not remain solely in the capital?

Baroness Warsi: The noble Lord makes an important point. As many noble Lords—especially those who have been provided with close protection either on behalf of the Government or by private security companies—will be aware, unfortunately it is a necessary part of some of the work that we do overseas. It enables us sometimes to travel beyond the capital to do exactly the kind of work that the noble Lord referred to.

Lord Chidgey: Is my noble friend aware that current research at Bristol University by Dr Higate shows that British companies generally operate on a low-profile basis, particularly in Iraq and Afghanistan, and their sensitivity to the reactions of the host populations reflects very well on the United Kingdom? Can she also address the serious shortcomings that have been found in the standard of and mandatory training for armed close protection roles undertaken by these private military and security companies?

Baroness Warsi: The noble Lord will be aware that many of the concerns in this area are historic and dependent on what happened not so much with UK private security companies but, predominantly, with US private security companies. Despite that, the UK led on the Montreux document, which laid out the obligations that we have. The UK was also one of the first to support the international code of practice, and one-third of the companies that have signed up to the code are British. We are also working with the industry to put forward standards so that the code is properly implemented and its implementation is audited. I am assured that we will be able to make an announcement in the next few weeks.

Lord Mackenzie of Framwellgate: My Lords, will the Minister comment on how the security industry will be regulated once the Security Industry Authority has been abolished in the bonfire of quangos?

Baroness Warsi: The Government are discussing that with the UK auditing service. It will propose an independent auditing body or bodies which will effectively then regulate and ensure that the code is being properly implemented.

Lord Hamilton of Epsom: Will my noble friend confirm that one reason why piracy has been reduced so radically is the use of private security companies on merchant shipping going through pirate-infested areas?

Baroness Warsi: It has been a contributory factor.

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Lord West of Spithead: My Lords, is the noble Baroness content that there are adequate RoE and lines of accountability on board merchant vessels if one of those security companies should happen to kill some alleged pirates?

Baroness Warsi: I am not sure what the specific answer to that question would be, but I am aware that the whole point of having a code of conduct—and thereafter having international standards against which the code of conduct is implemented, and thereafter having an audit of those standards—is to ensure that there is voluntary acceptance of certain rules of behaviour that have to be applied by all private security companies.

Lord Hunt of Kings Heath: My Lords, on that point, having an audit is not a substitute for proper statutory regulation. Will the noble Baroness answer my noble friend’s question? Why are the Government getting rid of that regulation?

Baroness Warsi: The Government feel that the best way to proceed in this area is to work on a voluntary system in which the trade organisations and the private security companies working in this area are involved. This is a matter which relates to the private security companies of many countries, and it is therefore important that we have an international standard against which companies can be audited.

Lord Dobbs: Is my noble friend aware that British companies operating in this difficult area have a high regard internationally? Can she give us an indication of how much money the British Government spend on those private security companies in the course of a year?

Baroness Warsi: I can, my Lords. The specific spend by the Foreign and Commonwealth Office on centrally awarded contracts to private security companies was approximately £47 million in 2009-10, £43 million in 2010-11 and £47 million in the current year.

Russian Federation: Council of Europe


2.43 pm

Asked by Lord Tomlinson

To ask Her Majesty’s Government what is their assessment of the report of the Parliamentary Assembly of the Council of Europe The Honouring of Obligations and Commitments by the Russian Federation.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the report is a detailed summary of the state of human rights in Russia today. It addresses some of the human rights issues of most concern in Russia, such as the new restrictive legislation on non-governmental organisations, the case of Sergei Magnitsky, the murders of human rights defenders and human rights violations in the

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North Caucasus region. We support the overall focus of the resolution, which gives recommendations to help to improve human rights protection in Russia.

Lord Tomlinson: My Lords, in view of the seriousness of this report, are Her Majesty’s Government concerned that the report was blocked from being sent to the Committee of Ministers because it did not attain the necessary two-thirds majority, largely as a result of the political group in which the Conservative Party sits in the Council of Europe voting against it? The group voted with Putin’s United Russia party and not for a proper examination by the Committee of Ministers. Therefore, will the Minister herself ensure that our ambassador to the Council of Europe in Strasbourg is instructed to raise this important report with the Committee of Ministers?

Baroness Warsi: The noble Lord will be aware that the UK Government are not part of the process by which the Parliamentary Assembly adopts reports and makes recommendations. He will also be aware that the government response to the report lays out those parts of it that we agree with and those parts that we may not. The process that is adopted thereafter as to whether this matter will be dealt with by a simple resolution or will go further in the form of a recommendation is a matter for the Parliamentary Assembly.

Baroness Falkner of Margravine: My Lords, the Minister will be aware that the report mentions Mr Sergei Magnitsky. She will be aware that the European Parliament passed a resolution that allows member states to impose a visa ban and to freeze the assets of the 60 officials who have been identified as being implicated in his murder. What are the British Government doing in terms of a visa ban or indeed of freezing the assets of those individuals?

Baroness Warsi: The UK’s position on the Magnitsky case is very clear: this was a terrible crime and needs to be fully investigated as soon as possible. We have made that clear to the Russian Government on a number of occasions. With regard to calls for a visa ban, we do not prejudge visa applications but, where there is independent, reliable and credible evidence that an individual has committed human rights abuses, that individual will not normally be permitted to enter the UK.

Lord Anderson of Swansea: My Lords, is the Minister aware that, in spite of the Litvinenko affair and the Magnitsky matter, the Conservative group in the Council of Europe has formed a very cosy relationship in its political group with Putin’s party? Indeed, on this occasion it protected the Russian delegation from that vote. Will she therefore remind her Conservative colleagues of the fate of the young lady of Riga who also formed a rather close relationship with the Russians?

Baroness Warsi: I do not know whether I can comment on that particular matter, but the noble Lord will be aware that we have a number of delegates who form

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part of the Parliamentary Assembly of the Council of Europe. They are not an extension of the Government; indeed, they have quite independent views. It is a matter for the Government to lay out their position, but that is not something that we can force upon those members.

Lord Flight: My Lords, I understand that this lengthy report, covering a period of seven years, has findings positive and negative, but in particular expresses concerns about changes in law this year that will inhibit democratic development in Russia. Do the Government take the view that the recommendation should have been adopted—the reason for it not being adopted still seems somewhat unclear—and, in the absence of an adopted recommendation, is Russia left free to avoid responsibility for its obligations as a Council of Europe member state?

Baroness Warsi: My Lords, we believe that the recommendation should have been passed, not to chastise Russia for its human rights record but to help to improve human rights protections within that country, as we would do for any Council of Europe member state. It is unfortunate that in this particular matter the procedural points became the focus of the debate rather than the real substance that was in the report. It is essential that every member of the Council of Europe, including Russia, respects the obligations and commitments that it signed up to on joining the organisation, whether or not there is a recommendation.

Lord Grenfell: My Lords, is the Prime Minister, in dismissing out of hand the European Court of Human Rights’ ruling on voting rights for prisoners, not giving aid and comfort to members of the Council of Europe such as Russia that see fit to pick and choose which of the undertakings they made when joining the Council they wish to honour?

Baroness Warsi: As I now have the human rights brief at the Foreign and Commonwealth Office, I see that there is an interesting dilemma in terms of human rights records around the world and the position that we adopt on them. There is also the question of how we implement human rights decisions in relation to the UK. However, I am very front-footed and clear when I say that abuses that are taking place in places such as Russia, which form the basis of the report that noble Lords are aware of, are very different from the case of voting rights for prisoners.

Lord Alton of Liverpool: My Lords, is the Minister aware that at a meeting in your Lordships’ House this morning, Mr Peter Horrocks, who runs the BBC World Service, expressed concern about the blocking of the BBC by Russia? In the context of the right to free speech and the importance of information and encouragement to those who uphold democracy in Russia, what are Her Majesty’s Government doing to raise our concerns about the blocking of the BBC World Service?

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Baroness Warsi: The noble Lord can be assured that we raise these matters frequently. Specifically in relation to human rights defenders, many of whom are serving sentences or have paid with their lives, we raise specifically freedom of speech, which is becoming even more important when looking at some of the controls that have been introduced on online discussions of politics and other matters. The Government regularly raise these matters with the Government of Russia, especially around freedom of expression.

Baroness Symons of Vernham Dean: My Lords, the Minister has sought to distance herself and the Government from the decision of the Conservative Members who sought to block the report. Can she tell the House what action the Government have taken to engage with those Conservative Members who sought to block the report and how they are hoping to persuade them to adopt a more sensible and, indeed, proper attitude on these issues in future?

Baroness Warsi: I do not seek to distance myself from any Conservative Members of this House or another place. However, Parliamentary Assembly Members, who are cross-party and not representative of any single Government, have their views and opinions, and in those circumstances we cannot enforce government views. However, what we can do—and the noble Baroness is quite right to raise this—is to engage with them and put forward the Government’s position.

Baroness Farrington of Ribbleton: My Lords, would the Minister care to reconsider—

Noble Lords: Next Question.

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I really do think it is unfair on the House to take another question when we are already in the 17th minute.

Homelessness: Rough Sleepers in London


2.53 pm

Asked By Lord Sheldon

To ask Her Majesty’s Government what proposals they have to reduce the number of people sleeping on the streets of London.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, the Government are committed to tackling rough sleeping. We have provided £400 million over four years to prevent homelessness, including £34 million to the Greater London Authority to tackle rough sleeping across the capital. My department is also providing £5 million to London to set up a social impact bond to help 750 entrenched rough sleepers in London. The mayor’s No Second Night Out scheme

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has been particularly successful in helping new rough sleepers in London off the street quickly, and we are investing to roll out No Second Night Out nationally.

Lord Sheldon: My Lords, I have seen two sleepers in a local street in London and others are close by. There is a need to offer suitable beds so that people are not sleeping in streets in London.

Baroness Hanham: My Lords, the mayor’s No Second Night Out scheme is being very effective. There are more than 2,000 hostel places in London each night and there are teams out consistently during the night. We anticipate that 80% of those who sleep out one night do not sleep out the next night.

Lord Laming: My Lords, the Minister will be aware of the statistics relating to the number of children and young people who run away from home each year, particularly young people who are in the care of local authorities. These young people often sleep rough and are in considerable danger. Will the Minister say what steps the Government are taking to pay particular attention to safeguarding these young children?

Baroness Hanham: My Lords, no one will know better than the noble Lord that local authorities have a particular responsibility for young people, particularly those under 16. At present, there is little evidence of children under 16 sleeping rough. If they do, it is for a very short time because local authorities and the leading young people’s homelessness charities, such as Centrepoint, take them in very quickly. I think 18 to 25 year-olds are more of a problem. They seem to sleep rough for a number of reasons, but I think I can reassure the noble Lord that there is very swift action if anybody under 16, certainly from the categories he knows about, is left out on the street for any length of time.

Lord Storey: My Lords, my noble friend may be aware of a recent survey which found that people sleeping rough on average had a 28% contact with police and only a 5% contact with outreach workers. Will she look at the Reading single homeless project, which found that it could reduce homelessness by 52% by targeting individual needs, whether they are related to drug abuse, alcoholism or mental health problems?

Baroness Hanham: My Lords, the noble Lord may know that my department initiated an across-department ministerial working group, which is concentrating on all aspects of homelessness, including rough sleeping. It has been very effective in finding ways of ensuring that the problems that the noble Lord raises are dealt with.

The Lord Bishop of Hereford: Does the Minister care to say whether Her Majesty's Government are likely to take up the suggestion made by the Royal Institute of British Architects in its report published four days ago that local authority pension funds might contribute to the cost of affordable housing and so address the issue of homelessness by that route? If

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the Government are not mindful to take up that suggestion, will they find funding by some other route so as to increase the provision of genuinely affordable housing?

Baroness Hanham: My Lords, the Government have taken a number of initiatives over the past couple of years to ensure that affordable housing is provided. The question of whether pension funds can be used for this is not something that I can address today. That would be, I think, a matter for each individual pension fund and I am not sure whether local government pension funds would be entitled to do that. If I can find the answer for the right reverend Prelate, I will do so, but I do not have a brief on that today.

Baroness Armstrong of Hill Top: My Lords, I want to assure myself and other noble Lords that the Minister is not complacent about this issue. The numbers of rough sleepers not just in London but throughout the country have risen substantially in the past year. We know that many of them now have mental health issues. The challenge of getting mental health services for rough sleepers is enormous, as I know only too well from trying to do so for rough sleepers around the north-east. For example, in Durham city, we have for the first time seven rough sleepers where we have never had them before. Are the Government tackling this urgently and are they going to commit to making sure that we end rough sleeping?

Baroness Hanham: My Lords, I can absolutely assure the noble Baroness that there is no complacency. This is a very unhappy situation for those who are sleeping rough and it is an unacceptable situation for the country in which we live. Perhaps that will answer the first part of the question. The second part of the question referred to those with mental health problems. It is fair to say that particularly in London, which is where the Question refers to, 43% of rough sleepers have mental health problems. Within that, of course, are hidden alcohol needs and drug needs. Services are already available to deal with those problems. Westminster has a mental health team. There are specialists to assess those conditions and to deal with them. But there is no complacency.

Lord Rogan: My Lords, statistics show that a higher proportion of ex-service personnel are sleeping rough compared with the population as a whole. Will the Government take urgent steps to address that problem?

Baroness Hanham: My Lords, the statistics are that 4% of those people sleeping rough are from the Armed Forces. My right honourable friend Grant Shapps, when he was Minister for Housing in the previous Parliament, had already made it clear that those from the Armed Forces absolutely received top priority. We are very aware of that problem. However, as I say, the figure is as low as four in one hundred.

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Child Benefit


3 pm

Asked by Lord McKenzie of Luton

To ask Her Majesty’s Government whether they have plans further to restrict child benefit.

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the Government are exploring further options for making the welfare system fairer and more affordable. Details will be announced in due course.

Lord McKenzie of Luton: My Lords, I thank the Minister for that reply, but I am not particularly comforted by it. We are, of course, among the shambles that is engulfing the introduction of the current change to child benefit policy for higher rate taxpayers—evidence, if we needed it, that policy should not be made on the hoof. Hundreds of thousands of people have been brought into the self-assessment process at a time when HMRC staff numbers are being savagely reduced. But my question for the Minister on the matter of evidence-based policy-making is to ask how he justifies the proposals aired by the right honourable Iain Duncan Smith, a fellow Minister, that child support for those unemployed should be restricted to just two children because, he asserts:

“Large numbers of families on welfare are having more children because they believe taxpayers will support them”.

Will the Minister give us the evidence for that assertion? Should such a policy ever be introduced, what impact does he think that there would be on child poverty in this country, which is already on the rise under this Government?

Lord Sassoon: My Lords, first, I am sorry that the noble Lord, Lord McKenzie of Luton, was not comforted in his terms by my answer. Does he disagree with the idea that the system should be fairer and more affordable? We know that the previous Government’s system was unaffordable, and we are putting that right. As to his question about some of the ideas that are being floated at the moment, it is simply not fair that it is possible for someone to be better off on benefits than they would be in work. How can we justify a system in which people in work have to make decisions about having a child or having another child based on what they can afford, whereas those out of work know that their benefits will just increase?

Lord German: My Lords, could the Minister help the House to understand the reasoning behind the statement by the Secretary of State for Work and Pensions, Mr Iain Duncan Smith, that the number of children in a family would be capped at two, which seems a strange way of doing family structure in this country? Was Mr Duncan Smith pitching for the 2015 general election manifesto or was he pitching for a change in expenditure of this current coalition’s policy? If it was the latter, what response did he get?

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Lord Sassoon: My Lords, this idea, which is one of a number of ideas to meet the very big affordability and fairness challenge that we have, responds to concerns that, while working families have to consider affordability before having another child, those who are out of work do not, for the reason that I have already given—that their benefits will increase. My right honourable friends, the Chancellor and the Work and Pensions Secretary, are working together on ideas, of which this is but one.

Baroness Hollis of Heigham: Leaving aside issues of decency—and there are real questions behind that—how does the Minister reconcile two apparently conflicting government views? The first will come from his department; no doubt, with the arrival of the Pensions Bill in this place, he will say that we need more, younger workers to help to support an increasingly elderly population. But he will also say, no doubt, in support of his right honourable friend Iain Duncan Smith, that extra children are for the poor a luxury while for the rest of us they are a burden. How does he reconcile these two statements—that we need more young people to support pensioners but we cannot afford to have them as taxpayers?

Lord Sassoon: My Lords, that is a complete misrepresentation of the position of my right honourable friend the Work and Pensions Secretary, so the question becomes completely redundant.

Baroness Afshar: My Lords, are the Government aware that for many minority families, particularly women working in the informal, “black”, sector, it is not easy to fill the forms required or meet the criteria established? Yet for those people family allowance is the only means to enable them to continue working.

Lord Sassoon: My Lords, what we are talking about principally this afternoon is the restriction of child benefit. The restriction starts to come in only where one taxpayer in the family is earning more than £50,000. In those circumstances, clearly there will generally be a capability for dealing with the forms. I went on to the website this morning and while I could be highly critical of some of HMRC’s forms, I found that the guidance on the changes to child benefit was remarkably clear and easy.

Lord Davies of Oldham: My Lords, the Institute for Fiscal Studies has indicated that under present government welfare cuts 80,000 children each year will be reduced to poverty. Have the Government ambitions to increase that number?

Lord Sassoon: My Lords, the changes to child benefit affect only the 15% of highest earning families in this country. This Government believe that those with the broadest shoulders should share the pain of the massive deficit consolidation and reduction programme that we inherited from the previous Government. That is what we will continue to do.

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Draft Enhanced Terrorism Prevention and Investigation Measures Bill

Motion to Agree

3.06 pm

Moved by Lord Strathclyde

That, notwithstanding the Resolution of this House of 28 May, it be an instruction to the Joint Committee on the draft Enhanced Terrorism Prevention and Investigation Measures Bill that it should report by 23 November 2012.

Motion agreed.

Business of the House

Motion on Standing Orders

3.06 pm

Moved by Lord Strathclyde

That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Wednesday 31 October to allow any Mental Health (Approval Functions) Bill brought from the Commons to be taken through its remaining stages that day.

Motion agreed.

Benefit Cap (Housing Benefit) Regulations 2012

Motion to Refer to Grand Committee

3.06 pm

Moved by Baroness Stowell of Beeston

That the draft Benefit Cap (Housing Benefit) Regulations 2012 be referred to a Grand Committee.

Motion agreed.

Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012

Motion to Approve

3.06 pm

Moved By Lord Wallace of Tankerness

That the draft Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012 laid before the House on 10 July be approved.

Relevant documents: 7th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 23 October.

Motion agreed.

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Winterbourne View


3.07 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I shall now repeat as a Statement an Answer given earlier today by my honourable friend the Minister for Care Services in another place on the safeguarding of former Winterbourne View residents. The Statement is as follows:

“The review into the abuse at Winterbourne View Hospital established by my right honourable friend the Member for Sutton and Cheam set out 14 actions to transform care and support. Central to the review is ensuring the safety and well-being of these very vulnerable people. I shall publish the final report before the end of November.

When Winterbourne View closed, NHS commissioners put in place independent clinical and managerial supervision and commissioned an independent assessment of every patient. The Care Quality Commission worked with commissioners to relocate Winterbourne View patients to suitable alternative placements.

The Department of Health review team commissioned NHS South of England to follow up the 48 patients who had been in Winterbourne View in March and September of this year. That revealed that 19 former patients were the subject of safeguarding alerts. In response to this, officials asked commissioners to take the appropriate action and confirmed that a follow-up would take place in six months’ time.

I was concerned to be informed that this follow-up had revealed that there are current safeguarding alerts for six former patients. I am assured that these are all being followed up to ensure the safety and well-being of the individuals concerned. Furthermore, the September follow-up exercise revealed that 32 Winterbourne patients were now living in the community in their own family homes, supported living or a residential care home; 16 were still living in hospital settings.

The priority is to improve commissioning to develop the good local services which will prevent people being inappropriately sent to hospital. We are working closely with the NHS Commissioning Board, the Local Government Association and directors of social services on what support local services need.

While a small number of people will need hospital treatment, we expect to see and indeed must see a substantial reduction in the number of in-patients. We intend to strengthen safeguarding arrangements to prevent and reduce the risk of abuse and neglect of adults in vulnerable situations. Where there are safeguarding concerns, the local safeguarding of adults boards need to be closely involved. These boards will be placed on a statutory footing, ensuring a co-ordinated approach to local adult safeguarding work.

This Government will put the necessary legislation for safeguarding adults boards, and local councils should bring clarity to their roles and responsibilities. But it is the responsibility of the care provider to ensure a culture of safety, dignity and respect for those in their care, including stopping abuse before it happens. Those providers must be held to account for the care they provide”.

My Lords, that concludes the Statement.

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3.12 pm

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl, Lord Howe, for repeating as a Statement the Answer to the Private Notice Question in the other place.

This has been an horrific case, and recent convictions have revealed criminal and inhuman acts which have caused such terrible abuse to vulnerable people who deserved very much better than that. The “Panorama” programme this week has continued to highlight inappropriate and poor-quality care. It is shocking that the first review, mentioned by the noble Earl, revealed that 19 former residents of Winterbourne View were still subject to safeguarding alerts, and at the follow-up review six former residents were still subject to those alerts. Not all those alerts mean that someone has been harmed. None the less, the “Panorama” programme said that there was one instance of assault, and another case has resulted in a criminal investigation. I should like to ask the noble Earl whether the families of all patients with a safeguarding alert have been given full details. What specific action has been taken as a result of those alerts? Can the Minister guarantee to the House that all patients are no longer at risk?

I should also like to ask him about the responsibility of the local commissioners. I believe that a considerable number of commissioners are responsible for the 51 former Winterbourne View residents. Can he say whether the commissioners now have a proper plan in place to ensure that the former residents receive good-quality care? Has the Care Quality Commission recently inspected all the providers that the former Winterbourne View patients were moved to? The “Panorama” programme raised particular concerns about Postern House, which the CQC inspected in January this year and said it met all the essential standards of quality and safety, and that suitable arrangements were in place to ensure that people were safeguarded against the risk of abuse. Yet the programme revealed a number of problems at Postern House over several years, including over a former Winterbourne View patient in June this year. Is the noble Earl, Lord Howe, confident that all the patients currently in Postern House are protected from the risk of abuse?

Of course, the noble Earl is right to say that responsibility lies ultimately with providers, commissioners and the regulators, but it is Ministers who set policy and have responsibility for ensuring that it is implemented. The noble Earl will know that organisations such as Mencap have been concerned that the Government are not moving quickly or strongly enough to end the practice of sending patients with learning disabilities to long-stay institutions, far away from their families and friends. Will the review he mentioned that will be published by the end of November contain a cohesive strategy for people with learning disabilities? Will this practice of placing people with learning disabilities in institutions a long way from families and friends be discontinued? Is the noble Earl satisfied that commissioners understand their responsibilities and that only, as he said, in limited cases should in-patient services be used?

The role of the regulator, the Care Quality Commission, is of course very important. I very much welcome the appointment of David Behan as the new chief executive

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but I remain concerned that the huge workload being placed on the CQC means that it is not able to devote itself to areas where we need strong regulation. Is the noble Earl confident that the CQC is now able to take on the responsibilities that have been placed upon it, particularly with regard to focusing on the institutions and organisations where the most vulnerable people are placed?

Finally, I agree with and echo the Minister’s point about the ultimate responsibility of providers. However, is he satisfied that the current arrangements ensure that those providers are regulated effectively—that commissioners know what they are commissioning and are able to monitor performance? Does he recognise that there are real concerns about whether the staff in such institutions are given enough support and training? Given that many of the workers in these homes are unregulated care assistants, does he not think that the time has come to reconsider the regulation of health and social care assistants?

3.17 pm

Earl Howe: My Lords, I am grateful to the noble Lord, Lord Hunt, for his comments and questions. Turning, first, to the very distressing programme that was shown on television last night, we know that some of the people who were at Winterbourne View hospital are now receiving good-quality personalised care in community settings that is appropriate for them. However, it is deeply concerning that some people have been so affected by what they experienced at Winterbourne View that they have had to go into more secure settings. Equally, we are very concerned that others continue to experience poor-quality care.

The Government take this very seriously, and that is why Department of Health Ministers set up a wide-ranging review not just into what happened at Winterbourne View but into the state of care and support services for people with learning disabilities or autism who may have mental health problems or behaviours described as challenging. We have heard a lot from people who have experienced the services, as well as from their families. We have been working across the health and care sector to identify what needs to be done to make sure that vulnerable people get the care and support that they deserve.

I make no apology that that has taken some time. We are determined to treat this issue very seriously and bring forward a firm programme of action to really make a difference. We will publish the final report of the DH review shortly, together with a concordat setting out the commitment for change and inviting external partners to sign up to specific actions to deliver that change.

The noble Lord asked me about commissioning. In general terms, in our perception commissioning has been too remote from the patients whom it is intended to serve, and I think that the noble Lord’s remarks reflected that point. Clinical commissioning is intended to push decision-making much closer to patients and local communities with the aim of ensuring that local people are able to hold commissioners to account more effectively for what they achieve. Commissioning decisions will also be better informed by local clinical knowledge and insight.

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The noble Lord asked whether all families have been given full information about the alerts. In essence, that is a matter for the local commissioners but I can tell him that the Department of Health has reminded health and care bodies of their responsibilities in that area.

The noble Lord called into question the capacity of the CQC to take on as much work as we are requiring of it. He will know that the department has undertaken a performance and capability review of the CQC. The resulting report was published back in February. It found that the CQC had made significant progress in the previous nine months, and I believe that it is continuing to make that progress. It has shown, in particular, a new focus on its core purpose—to protect patients by concentrating on essential standards—and in strengthening its operational base. The review has already made recommendations to strengthen the board of the CQC and board structures, including changing the board, so that instead of comprising only non-executives, it becomes a unitary board of majority non-executives, with senior executives on the board where they can be better held to account. It also recommended that the CQC needs to review and reinstate the board support and development programme and strengthen capability at executive team level. The department will oversee the implementation of these recommendations.

I share the noble Lord’s confidence in David Behan as chief executive of the CQC, having got to know him quite well during my time in the department. The noble Lord raised the issue of skills and training. We have had a number of debates on this subject over the past few months and, as he will know, the department has commissioned Skills for Health and Skills for Care in partnership with unions and employers, regulators and educators, to produce by January next year national minimum training standards and a code of conduct for healthcare support workers and adult social care workers.

I would just say, however, that to my mind the skills required in looking after those with learning disabilities and challenging behaviour are of a different order from the skills needed in other settings and we need to nuance the standards to ensure that the right skills are being imparted to the right people. Commissioners need to encourage hospitals and assessment and treatment units for adults with these disabilities to make sure that their employees are signed up to the proposed code of conduct that we plan to put in place and the minimum induction and training standards for unregistered health and social care assistants. We are working with the National Skills Academy for Social Care to explore how registered managers can get better support, which includes regular monitoring and supervision. Indeed, Skills for Care is developing a framework of guidance and support on commissioning work for solutions to meet the needs of people with challenging behaviour.

Finally, the noble Lord asked me whether I was satisfied that Postern House represented a safe and secure environment. Following the programme last night, my officials are pursuing that matter with urgency, as we speak, and once I have an assurance to give him about the current state of affairs at that care setting, I shall be happy to pass it on to him.

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Baroness Northover: My Lords, I remind noble Lords of the Companion, which says that Statements are a time for brief comments and questions, not for immediate debate. If noble Lords are brief as many as possible will be able to contribute.

3.24 pm

Lord Laming: My Lords, the Minister has made it plain that it has been the Government’s position for some time that people with learning disabilities should be enabled to live with local personalised services, supported in the community. The fact that some former residents of Winterbourne are now living with their families is an indication that this policy has been implemented all too slowly. There are too many units like that around the country. Will the Minister tell the House what levers are being employed to speed up this policy so that people have a range of local services designed to meet their personal needs?

Earl Howe: My Lords, I am absolutely in agreement with the noble Lord, Lord Laming, that it is really important that people are held to account for making change happen. We have indicated what we think that change should be, and that is why we have developed a concordat with key partners to get them to commit to the actions they will take. We also plan to strengthen the learning disability programme board, in particular to make sure that key delivery partners—such as the NHS Commissioning Board, the CQC, ADAS and the Local Government Association—are core members. The board will review progress on implementing the action set out in the final departmental report and the concordat. We have tried to address the issue that the noble Lord homed-in on—which is speed of action—but the core of his point was that there are too many people currently in specialist in-patient learning disability services, including assessment and treatment units, and that they are staying there for too long. This is often due to crises which are preventable or which can be managed if people are given the right support in their own homes and in community settings. That is the agenda that faces us.

Baroness Jolly: My Lords, what action can be taken against partners that fail to comply with the concordat?

Earl Howe: My Lords, I think that part of this involves defining roles and responsibilities. There is no single answer to my noble friend’s question. However, the transparency of the delivery of care, measuring outcomes and measuring the quality of commissioning in local areas are all important. It is also important to ensure that systems are in place to expose poor practice when it occurs. The problem with Winterbourne View is that, for too long, people did not know that those dreadful things were happening. Therefore, levers such as the introduction of local Healthwatch, the promotion of the new elements of the NHS constitution and ensuring that the CQC focuses its attention on where risk may most strongly lie, all have to be considered in the mix. I can tell my noble friend that this very subject will be covered in the report that my department will be publishing by the end of next month.

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Lord Elton: My Lords, my noble friend is right: the care of people with learning difficulties requires a different order of commitment, compassion and patience. The Government are putting some weight on referring and sending people with learning difficulties out of institutions and into private homes. Can he give us reassuring news about the ease or difficulty of supervising the quality, consistency and continuity of the care which can be given in circumstances where these people are dispersed and each individual needs some kind of monitoring allocation of their own?

Earl Howe: My noble friend is absolutely right: this is not a simple matter. That is why we believe that commissioning should not be remote from those for whom care is commissioned. There needs to be regular monitoring by commissioners of the quality of the service that has been commissioned. Equally important, commissioners need to satisfy themselves on the suitability of the placement in the first instance. Best practice and guidance are clear: people with learning disabilities, autism or behaviour that challenges should benefit from local, personalised services and should be supported to live in the community wherever possible. The creation of clinical commissioning groups and health and well-being boards will encourage that local dialogue and insight to make sure that the services available in an area are appropriate and of a capacity for those who require them.

Baroness Donaghy: My Lords—

Baroness Emerton: My Lords—

Baroness Northover: My Lords, I have been keeping a tally and it is the turn of the Labour Party and then the Cross-Benchers.

Baroness Donaghy: Is the Minister satisfied that not a single senior manager or owner went to jail as a result of the Winterbourne View scandal? Given that, how on earth is a culture change going to be promoted in these organisations? Can he assure the House that the responsibility and any judicial changes will be considered as part of any review?

Earl Howe: My Lords, the noble Baroness makes an important point. We have been clear that those who lead organisations where people suffer abuse or neglect should be held accountable. We have made it clear that there is a gap which needs to be addressed. A range of options is available through regulation; for example, by barring people from running care homes or hospitals ever again or, indeed, through criminal sanctions. As I have mentioned, very soon we will publish our final recommendations on what more can be done to prevent abuse and protect those who are in vulnerable situations.

Baroness Emerton: My Lords, I thank the noble Earl for his response in terms of support workers, and particularly on challenging behaviour. My past experience nearly 20 years ago of decanting hundreds of patients from large institutions satisfactorily into the community

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was due to the fact that the psychologists made an independent assessment of each individual of their clinical and environmental needs, and thus the training needs of the support workers. Can the Minister assure us that a holistic approach in terms of multi-professional involvement will be taken, and that it will particularly be led by evidence-based psychologists who understand challenging behaviour?

Earl Howe: I agree fully with the noble Baroness. The aim and aspiration for this group of individuals is that they should benefit from personalised services. What that means is that their needs should be individually assessed professionally by multi-disciplinary teams. The noble Baroness did not do this, but there are some who suggest that we need to get rid of in-patient services altogether. There are individuals who will continue to require in-patient services, but these should be used only in very limited cases. We need to aim towards a situation where no one is sent unnecessarily into in-patient services for assessment and treatment. We know that that has not been happening. For the small number of people for whom in-patient services may be needed for a short period, the focus has to be on providing good quality care that is safe, caring and open to the community, which is another important aspect, and that people can move on from these services quickly. Planning starts from day one to enable people to move out of the in-patient setting into more appropriate care as quickly as possible. That comes back to intelligent commissioning.

Baroness McIntosh of Hudnall: My Lords, is it not the case that a great many workers in this sector are extremely low paid? Does the Minister think that there might be any correlation between the fact that they are low paid and the quality of care they deliver? I do not mean to imply that there is any excuse for the sort of behaviour that was revealed in the “Panorama” programme, but could any form of pressure be applied by regulators and commissioners to the commercially driven organisations that provide this care so as to prevent them continuing to employ people on very low wages to do such sensitive work?

Earl Howe: My Lords, there is more than a nugget of truth in what the noble Baroness says. Many of us have been troubled for a long time that work of this kind is insufficiently valued by society, and that is reflected in the rates of pay. That is why I am a firm believer in raising skills in this sector as a reflection of the value we place on care workers. The programme that we have in train over the coming months should steadily deliver that. To come back to the commissioning question, I am also a believer in ensuring that commissioners should be satisfied that the settings to which they send individuals have an appropriate mix of skills to look after the people concerned. That has not always happened. There is no single answer to this, but I identify myself with the particular point she has raised about remuneration.

Lord Cotter: My Lords—

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Viscount Tenby: My Lords—

Baroness Northover: I think it is the turn of the Liberal Democrats and then maybe the Cross-Benchers after that.

Lord Cotter: My Lords, I very much welcome the mention of training once again today. It is so important that support workers are trained. One issue that has come to my notice quite frequently is that through a lack of training, support workers question the trained professionals an awful lot. The management also need to be trained to back up the professionals who are trained in their job as a vocation, so that the less well trained support workers respect their decisions.

Earl Howe: I agree with my noble friend. Where supervision is required, it is the job of the manager to ensure that it takes place, and that the supervision, staff ratios and so on are appropriate. We come back to the question of the responsibility placed on the shoulders of managers and proprietors of care homes. As the Statement made clear, this is very much a responsibility of providers, who need to be held to account for the quality of care that they provide.

Viscount Tenby: My Lords, I declare an interest both as a trustee of an organisation dealing with women with learning disabilities and also as a father of someone in that category. Although everyone can applaud the move to independent living within the community—nothing could be better—this has considerable financial implications, at a time of great financial stringency and rationing within the NHS. Can the noble Lord assure me that sufficient funds will be found and made available for this most important development?

Earl Howe: My Lords, the commissioning of this type of care will, in the future, be the joint responsibility of clinical commissioning groups and local authorities. We are encouraging as much close co-operation as possible at a local level. The noble Viscount will know that across-government funding is tight. However, we as a Government took the decision to protect the health budget, which is in fact rising in real terms every year of this Parliament. That does not reduce the pressure placed on the budget, because historically the pressures on the health budget have been higher than the rate of inflation; nevertheless, in protecting the health budget, we are also supporting local authorities to the tune of more than £7 billion over the spending review period to ensure that their social care services are not seriously depleted or damaged. It would be idle of me to say that there is no problem, but the funding available should be enough to support these services over the medium term.

Lord Clinton-Davis: This is not a simple matter. Does the Minister agree that an interim report will not provide all the answers and that this matter ought to be kept under constant review by Parliament in due course?

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Earl Howe: Yes, my Lords, I agree with that. We must not take our eye off the ball. Once this report comes out, we have to ensure that its recommendations are carried through and constantly monitored. It will be, in part, the job of the NHS Commissioning Board to hold the ring and ensure that local commissioners are supported with the proper guidance, and held to account for the outcomes that they achieve, across the whole NHS but particularly in this area. That focus on outcomes is important when we consider how the service is held to account. We will be publishing very shortly the final version of the mandate that the Secretary of State gives to the NHS Commissioning Board as the means by which the board will be held to account by Parliament and the public.

The Earl of Courtown: My Lords, I declare an interest as a patron of a home providing residential care for adults with autism spectrum disorder. What we have all heard, read and seen about the Winterbourne View care home has been quite terrible. Does my noble friend the Minister agree that there are many homes out there providing a very good service to people suffering from these problems?

Earl Howe: My Lords, I am very grateful to my noble friend because it is all too easy to sink into a state of despair over these services. He is absolutely right: many, many good examples of excellent care are being delivered to those with learning disabilities. The challenge is to ensure that best practice is spread, but I am grateful to him for reminding the House of that important fact.

Lord Elton: My Lords, learning-difficulty patients are extremely aggravating at times and their carers have enormous power over them and can be tempted to abuse it—hence the results we have seen. The same can be said of prisoners and prison officers. When I was Minister for the Prison Service many years ago I was aware of the problem of the abuse of prisoners by prison officers who had a tendency to bully. I commissioned work on identifying the psychological profile of potential bullies, which was useful in reducing that invasion of human rights in prisons. Will my noble friend look into a similar approach when it comes to the way in which carers are recruited?

Earl Howe: My Lords, my noble friend makes an important point. The thing that shocked us all in the context of the BBC programmes was the extent to which restraint and physical abuse occurred in care settings, which was clearly inappropriate and also extremely distressing and damaging to the individuals involved. We are working with the DfE, the CQC and other stakeholders to drive up standards and promote best practice in the kinds of areas my noble friend is no doubt thinking of, particularly in the use of restraint. We believe that there should be a set of core principles to govern restrictive physical interventions. We think the guidance needs to be updated and that there needs to be improved training in this area. We will particularly consider in our review what additional guidance is needed for specific groups, including people with learning disabilities and behaviour that challenges.

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Crime and Courts Bill [HL]

Crime and Courts Bill [HL] Committee2nd Report from the Constitution Committee 2nd Report from the Delegated Powers Committee

Committee (7th Day)

Relevant documents: 2nd Report from the Delegated Powers Committee, 2nd Report from the Constitution Committee.

3.45 pm

Amendment 155ZA

Moved by Lord McNally

155ZA: Before Clause 23, insert the following new Clause—

“Dealing non-custodially with offenders

Schedule (Dealing non-custodially with offenders) (which makes provision about community orders, restorative justice, community requirements in suspended sentence orders, compensation orders and fines etc) has effect.”

The Minister of State, Ministry of Justice (Lord McNally): My Lords, it may assist the Committee if I say a few words about the shape of this afternoon’s debate. A large number of amendments are down. The noble Lord, Lord Ramsbotham, has given notice of his intention to oppose the Question that Clause 23 stand part of the Bill. I shall also oppose Clause 23 because the whole aim of this process is now to replace Clause 23 with the outcome of the Government’s consultation that allows this debate today.

I see the proceedings today and on 13 November as running in this way. Today, we will have, to all intents and purposes, the kind of Second Reading debate that we would have had if this work had been in its proper place when we reached Clause 23. It has been agreed through usual channels to recommit the provisions of the community sentencing and deferred prosecution agreements so that we can effectively debate them in two stages; first, today’s Second Reading-style debate and, secondly, a Committee-style debate on 13 November, when noble Lords will be able put down appropriate amendments. Today, Second Reading rules apply. For good order, I shall move separately the two blocks of amendments, those referring to community sentencing and those to deferred prosecution agreements. Our first debate will be on the community sentencing proposals. When that debate is complete, I will close that debate until 13 November and then make some opening remarks on the deferred prosecution arrangements, which will allow another Second Reading-type debate. I hope that that is clear to noble Lords and will allow us a good, well informed debate on both sets of proposals.

The amendments will strengthen the community sentencing framework to ensure that non-custodial sentences provide robust punishment, are effective in reducing reoffending and give a better deal for victims. The amendments give effect to a number of proposals in the Punishment and Reform: Effective Community Sentences consultation that the Government published in March of this year. As noble Lords will be aware, non-custodial sentences make up the great majority of sentences imposed by our courts. In 2011, fines and community orders made up around 80% of the sentences handed down by the courts. Given those numbers, it is

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clearly vital that sentences served in the community punish offenders, prevent further offending and repair the harm caused to victims and communities.

Our current community sentences framework delivers some of those purposes better than others. For example, community orders can be effective at tackling the causes of reoffending. The reoffending rate for adults subject to court orders in the 12 months ending September 2010 was 34%. The reoffending rate has fallen by 3.9 percentage points since 2000. Although there is still further to go, these figures are evidence of the hard work and dedication of all of those who work with offenders within probation and other organisations.

However, at present, community orders do not always inspire public confidence. Some community orders do not contain an element that the public would consider punitive, demanding or restrictive. For example, in 2011, around 10% of community orders contained only a supervision requirement, while the percentage of successfully completed orders is still low. The Government are determined to increase public confidence that community orders provide a proper sanction for criminal behaviour. Only in this way can community sentences be effective at tackling the causes of offending while reassuring victims and communities that justice has been done.

There is also scope for community orders to do much more to provide reparation to individual victims and communities affected by crime. It is true that around one-third of all requirements commenced with the probation service are community payback. In 2011 around 50,000 community orders had a compensation order imposed alongside them. But while some community orders already engage victims and offenders in restorative activities, the Government believe that there should be much greater use of restorative justice across the community sentencing framework and beyond.

Before I go into the detail of these amendments, it may assist the Committee if I summarise the responses to our consultation. We received just under 250 responses from a wide range of criminal justice professionals, representative groups, private and third-sector organisations and others. Practitioners have been clear that we need to trust their professional judgment and expertise, and that in doing so it is vital we retain the flexibility of the community order framework. They have also been clear that a one-size-fits-all approach to reforming community orders will not work.

The feedback has been critical in refining and reshaping our proposals. As a result, we have decided not to take forward some proposals. For example, we received a wide range of views on our original proposal for a centrally mandated intensive community punishment order but a common theme was the need to shape intensive orders around local needs. Changes to community orders under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will give courts new and strengthened requirements to impose on offenders and will increase their flexibility to tailor rehabilitative requirements to offenders’ needs. These changes should provide the courts with more flexible and robust community order requirements that can be combined in creative ways to provide a sentence that delivers intensive punishment but is tailored to local circumstances.

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Similarly, the Government have listened to the views of respondents on our original proposal for a fixed penalty for certain breaches of community orders and on giving offender managers the power to impose them. Instead, we have considered alternative means of making the breach process swifter and more immediate for offenders. For example, a significant cause of adjournment of breach hearings is that the defendant is not present. We propose to do further work with the courts, judiciary and probation service to explore improvements in operational procedures for dealing with breaches.

Turning to the detail of our amendments, the core provisions are to be found in the new schedule to be inserted by Amendment 155EZA. Part 1 of the new schedule flows out of our original consultation proposal to require all community orders to include at least one specified punitive element. The Government continue to believe that community orders must represent a clear sanction for criminal behaviour. However, we have listened to the views of respondents who argued that what is punitive for one offender may not be punitive for another and that the courts are best placed to determine what is an appropriate punishment. Part 1 will therefore require courts to impose an element that fulfils the purpose of punishment as part of every community order. That element can either be a requirement of a community order or a fine. The fact that a community order includes a punitive element does not mean that it may not also include a requirement or requirements that are rehabilitative.

In response to the feedback we have received, the duty does not specify what requirements courts should impose. However, based on comments from sentencers and other practitioners on what they generally consider to be a punitive requirement, a punitive element might generally include a restriction of liberty that represents a recognisable sanction to the public, such as a curfew, exclusion or community payback. Many community order requirements are capable of delivering both punishment and rehabilitation at the same time.

The Government have also borne in mind that there may be a minority of offenders for whom a requirement that fulfils the purpose of punishment is not appropriate. The duty therefore provides for an exemption where there are exceptional circumstances that would make it unjust to impose a punitive element. We received a wide range of views from practitioners on cases in which a punitive element might not be appropriate. Ultimately, what constitutes an exceptional case can relate only to the circumstances of each individual case, and the Government believe that that is properly a matter for the courts.

Part 2 of the new schedule amends the courts’ existing powers to defer sentencing in order for a victim and offender to take part in restorative activities. As noble Lords will be aware, restorative justice can have a positive impact on both victim satisfaction and reoffending. The Government believe that access to restorative justice should be available for all victims at all stages of the justice process, so that, where appropriate, they can opt-in at a time that is right for them. For some victims, that may happen immediately

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after an incident occurs, while other victims may want to participate in a restorative justice process post-sentencing.

We have noted in particular the significant support that consultation respondents expressed for increasing the use of restorative justice between conviction and sentence and the potential benefits that that could have for both victims and offenders. New Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, as inserted by Paragraph 5 of the new schedule, therefore makes it clear that courts can defer sentences until a restorative activity has taken place, if that is the course of action that both the victim and the offender choose.

This amendment is an integral part of the Government’s wider work on developing a cross-criminal justice system framework for restorative justice. The framework will seek to ensure that there is a coherent vision of how restorative justice should apply across all stages of the justice process, including how we build local capacity within available funding and how we ensure a consistently high quality of delivery through accreditation and training standards.

Part 3 of the new schedule removes the current £5,000 cap on a single compensation order that applies in the magistrates’ courts for adult offenders. The Government are committed to ensuring that as many victims as possible receive financial compensation from their offender. This change will give magistrates greater flexibility to impose appropriate levels of compensation in cases where significant harm may have been involved; for example, in environmental offences or criminal damage offences.

Part 4 of the new schedule amends courts’ powers to use technology to monitor offenders electronically as part of a community order. Current legislation already allows electronic monitoring technology to be used to monitor compliance with any other requirements imposed by the court as part of a community order. The vast majority of electronic monitoring is currently delivered by way of radio frequency technology. This technology has proven to be robust and reliable and an accurate way of monitoring an offender’s compliance with their curfew requirement. However, its capability is in practice limited to monitoring whether the offender is present at a specified address during specified times. The Government want to harness recent developments in technology to make greater use of location monitoring technologies, such as GPS, for offenders serving community orders. The National Offender Management Service is currently recompeting its contracts for providing electronic monitoring, which will include this new technology.

In addition to using location monitoring technology to enforce existing community order requirements, the Government propose to give the courts power to track offenders for the purposes of deterring crime, public protection and crime detection. The Government are clear that implementation of the new provision will be subject to the relevant technology being affordable and fit for purpose and to appropriate safeguards for its use being in place. Among other things, the Secretary of State will be under a duty to publish a code of

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practice setting out the appropriate tests and safeguards for the use, retention and sharing of any collected data.

Part 5 of the new schedule amends courts’ powers to order offenders to provide a statement of their financial circumstances before imposing a financial penalty or dealing with default in payment to make it clear that such a statement may include details of all their assets. Our consultation set out our aspiration to make greater use of asset seizure across the justice system. We consulted on the idea of creating a stand alone sentencing power to seize offenders’ assets as a punishment in its own right. Many respondents felt that in practice such a power could be difficult to impose and enforce. However, some respondents suggested that greater weight might be placed on offenders’ assets when fixing financial penalties.

Courts are already required to have regard to offenders’ financial circumstances when fixing fines, compensation orders and other types of financial order. In many cases, information about offenders’ earnings and outgoings will be sufficient for courts to set a proportionate and equitable penalty. However, the Government wish to ensure that, in cases where offenders may be cash-poor but have items of property that are more valuable, courts can, if appropriate, take account of this when fixing the value of a financial penalty.

Part 6 creates new powers for Her Majesty’s Courts and Tribunals Service to access data from Her Majesty’s Revenue and Customs and the Department for Work and Pensions to ensure that, when setting the level of a fine or compensation order, the courts have accurate information about an offender’s income or state benefits. This will ensure that fines are set at the appropriate level—not too low if they have a well paid job and not too high if they rely on state benefits.

With the addition to the Bill of these substantive provisions on community and other non-custodial sentencing, I am happy, as I said, to join the noble Lord, Lord Ramsbotham, in opposing the Question that Clause 23 should stand part of the Bill. I believe that these amendments will build on the strength of our current community sentencing framework to ensure that such sentences strike the right balance between punishment, rehabilitation and reparation when they are effectively enforced. I commend the amendments to the Committee. I beg to move.

4 pm

Lord Rosser: Today, as the Minister has said, is in fact a Second Reading debate on the Government’s latest additions to the Crime and Courts Bill. The new schedule and clause, entitled “Dealing non-custodially with offenders”, cover a number of proposals and changes—namely, a punitive element to every community order, restorative justice, pre-sentence information sharing, information on offenders’ assets and financial circumstances, the removal of limits on compensation orders for adults and location tracking for the electronic monitoring of offenders, although the reliability, effectiveness and cost of using the equipment involved for such location tracking is as yet far from clear. On the other side of the coin, the Government’s proposals are either silent or relatively so on the provision for

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young adults, women and vulnerable offenders. No doubt at some stage the Minister will explain why this is the case.

I want to direct most of my comments to the introduction of a mandatory punitive element in every community order. The Government’s heavily trailed proposals for “tougher” community sentences have been delayed even longer than anticipated by the departure of Mr Clarke as Secretary of State at the Ministry of Justice and his replacement by Mr Grayling, a person adjudged to be more in tune with the heartbeat of Conservative Members of Parliament and Peers on law and order issues.

What, then, do the proposals add up to? Put simply, that appears to depend on the extent of the freedom, or lack of it, that courts are given to decide how to interpret them if they become law. The Government are seeking to make it mandatory for a court to impose at least one punitive element or a fine or both when sentencing an offender to a community order. For example, a punitive element could be unpaid work or electronic tagging and a curfew.

Having made it mandatory in one part of their proposals, in the next part, the Government then say that does not apply where there are “exceptional circumstances” relating to the offence or to the offender which would make it “unjust” in all the circumstances to impose a community order with a punitive element or fine. It is a bit like having an each-way bet. It seems that guidance on what is meant by “exceptional circumstances” will be given, among others, to the Probation Service, which draws up reports for the courts with recommendations on sentencing offenders who are being considered for a community order. It is not clear who will be drawing up this guidance, how prescriptive it will be or what will be the size of the Secretary of State’s personal footprint that will be stamped on the guidance. I hope that the Minister will be able to enlighten us on these points when he responds.

The Government say that they do not want to tie the hands of the courts. Clearly, at the very least, they want to give the appearance of telling the courts that they have often got it wrong up to now in their community order sentencing and how they must act in future. Currently some two-thirds of community sentences provide for what is considered to be a punitive element and often a rehabilitative element as well. The remaining third provides for measures designed to help rehabilitate an offender and/or for supervision by the Probation Service, but do not contain a punitive element because the courts have not considered that appropriate. Victims and communities, say the Government, want to see a punitive element in any community sentence, and that is why they are proposing to put a mandatory requirement, except in “exceptional circumstances” on the courts to impose a punitive element, or a fine, or both, in any community order.

Can the Minister confirm that this means that he and his ministerial colleagues in the department are telling the courts that in nearly a third of cases involving a community order they have been getting their sentencing wrong? Or is it the Minister’s view that things will continue much as they are now because “exceptional circumstances” may well continue to be found by the courts in almost a third of cases?

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Most surveys show that the main thing most victims and communities want is some assurance that action will be taken to minimise the likelihood of the offender reoffending. On that score, the Government’s proposals contain very little. There are plans to extend restorative justice which we support, but this is dependent on the victim or victims and offender agreeing to such a step, which may or may not lead to a lesser penalty being imposed by the court. It would be helpful if the Minister could say what increase the Government are expecting in the number of cases dealt with in this way, what resources will be made available and at what cost, since disposal effectively of cases in this manner is likely to be resource-hungry.

The new Secretary of State has made it clear that his proposals for mandatory “tougher” community sentences, which can already be imposed by the courts, if they think fit, under existing powers, are not intended to be used as an alternative to short prison sentences of a few months. All the evidence shows that those are the least effective sentences in terms of reducing reoffending, which is what victims and communities really want to see achieved. So it would appear that the Government’s proposals will not reduce costs or the prison population, but rather, with the emphasis on extended mandatory requirements, would, if actually implemented, increase costs without necessarily impacting positively on reoffending.

One question is whether the Government’s real intention with the amendments is to impose tougher sentencing on the courts for community orders with the emphasis on a mandatory requirement on punishment and very little said on rehabilitation. Alternatively, is the intention to give the impression that this is the case for the benefit of the Conservative right wing and the right-wing media, while in reality continuing to leave it to the courts to decide the appropriate balance between punishment and rehabilitation in a community order, as they do now? No doubt, the Minister will clarify the position on this point, as that is surely one question to which the noble Lord must know the answer.

When considering community orders, a further issue is the role of the probation service in the management and supervision of offenders. What role do the Government see the current probation service playing in the future and in what format? In what areas of activity will the probation service continue to undertake the work itself and in what areas of activity will other organisations in the private and voluntary sectors be taking over the responsibility?

The new Secretary of State has come from the Department for Work and Pensions, which seems quite keen on the commissioner-provider split. Is that now the road that the Secretary of State intends to go down with increasing vigour as far as the management and supervision of offenders, and the future role of the probation service, are concerned?

We know that the Government lay some emphasis on what they describe as payment by results as an approach to engaging organisations in work with offenders. There is a danger that there is a lot of payment and not much in the way of results. Pilot exercises have

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been undertaken and perhaps the Minister could talk about the outcomes of these exercises and whether they have been completed as intended. If the Government’s view is that the courts have not been sentencing appropriately in one-third of community orders because no punitive element has been concluded, what benefits do the Government see arising from a punitive element now having to be imposed?

Most offenders have one or more issues that need addressing or taking into account in sentencing, ranging from mental illness or disorder of varying degrees of seriousness to significant housing, drug, substance or alcohol problems, learning disabilities and low educational achievement, being stretched financially or having primary care responsibilities. In a number of cases, these problems, allied to considerations of the circumstances and nature of the offence, may make a punitive element inappropriate. Based on their own research, what view do the Government have of the percentage of cases involving community orders that might be covered in future by whatever definition the Government intend of “exceptional circumstances”? Is it the Government’s view that a punitive element in the third of community order cases that currently lack such a provision will reduce reoffending in these cases or is this new provision being primarily designed to meet the Government’s view of what victims and communities want? As it is, we now already have a new requirement that where a community order is made by a court, a £60 victim surcharge will also be payable by the offender.

Debates in Committee and on Report will provide an opportunity to probe in more detail the thinking, reasoning and hard evidence behind the Government’s proposals and the impact that they are likely to have on reoffending, victims, the prison population and costs. The proposals indicate a considerable lack of confidence by the Government in the judgment of the courts to get the balance right between punishment and rehabilitation when imposing community orders. The mood music of the proposals on community orders, taken as a whole, is that of a one-club approach of being more punitive in future with new mandatory provisions, in contrast to the relative lack of emphasis, and certainly no mandatory requirements, in relation to rehabilitation.

If that is the Government’s instruction, through this Bill, to the courts, the outcome may well be less provision in community orders in future on rehabilitation or non-punitive elements as a means of reducing reoffending. Perhaps the Minister would confirm that such a development would be in line with the Government’s thinking on community orders in future. Many who appear before the courts need to be punished in clear and unequivocal terms for the offences they have committed. Equally, for others, that may not be the appropriate road to go down when there is evidence that the prospects of reducing reoffending would be maximised through addressing the causes of their offending with challenging sentence requirements. We will keep an open mind at this stage on the Government’s proposals, which have only recently been published, and we wait to see if the Minister can address some of the concerns expressed.

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4.15 pm

Lord Ramsbotham: I have given notice of my intention to oppose the Question that Clause 23 stand part of the Bill. However, as the Minister has explained, Clause 23 will now be removed. I shall also speak to Amendment 155EZB.

When I read the speech made by the Prime Minister on 22 October, I must admit that I was struck by one word that sprang out at me from everything that he said. That was “confusion”. There seemed to be confusion in his mind. When he said that he was not saying what people wanted to hear and not playing to the gallery, I felt that he was confused because he was actually playing to two galleries. To one gallery, which you might call the rehabilitation gallery, he said:

“Just being tough is not a successful strategy in itself. Recognising that young people who can’t read, teenagers addicted to drugs … need help, so that they can become part of the solution and not remain part of the problem … is not soft or liberal, it is common sense. We will never create a safer society unless we give people, especially young people, opportunities and chances away from crime. Prevention is the cheapest and most effective way to deal with crime. The Government is engaged in what can only be described as a rehabilitation revolution”.

I felt in a way that I could side with all that. But then, on the other hand, he made remarks to the other gallery, saying:

“At every single level of sentence this Government is getting tougher … we are toughening up community sentences too. If you are on a community sentence you will be supervised—you will be properly punished—you will be forced to complete that sentence. We will pay charities, companies and voluntary organisations who come and help us rehabilitate our prisoners, but the payments will depend on results. By the end of 2015 I want to see Payment by Results spread right across rehabilitation”.

I could not help concluding that when political theorising and posturing collide with the hard facts of reality, there are only two ways out. One involves meaningless wishful thinking and the other involves meaningful rethinking. Having had a most useful meeting yesterday with the Minister, and having thought through what other people have said, my appeal is that we shall have meaningful rethinking of a lot of this, and not go on with the wishful thinking. The Prime Minister says that everyone will be supervised—well, who by? At present, 62% of probation officers have a caseload of between 30 and 49. How can they supervise all those properly? How on earth are you going to have everything delivered by 2015, when there is not even a payment by results project working now?

We have heard a lot about the feelings of people in the community. I absolutely agree with the noble Lord, Lord Rosser, that it is more about whether people are going to reoffend than about what the probation service actually does. We have heard about victims and offenders, but we have not heard about a very important part of the whole community sentence delivery—the probation service. I admit to being seriously alarmed about the state to which the probation service has been reduced since 1997. When the Minister started, I understood him to say that he was talking about the Government’s consultations. In addition to the community sentence consultation, which we have been discussing, there was also a probation consultation that ran in parallel. Originally, when they were both launched, we were told that they were running in parallel and that we

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would have a chance to discuss them both. We do not have the Government’s response to the probation consultation in front of us. Therefore, we are blind. We can talk until the cows come home about what we would like to happen but unless we know how it can happen and whether it can happen, it is all pie in the sky. Frankly, that worries me.

I believe seriously that this confusion stems from an even more serious confusion right at the heart of the criminal justice system. The aim of the criminal justice system is to protect the public by preventing reoffending. The criminal justice system consists of four parts—the police, the courts, prison and probation. The police investigate, the courts sentence and the prison and probation services administer that sentence—the Prison Service in custody, the probation service in the community. The aim of all that is to help those committed by the courts to live useful and law-abiding lives. That is what it is all about when we reduce it down.

Noble Lords may agree with what I have said in this House many times before: namely, that within the criminal justice system the position of prisons is exactly the same as that of hospitals in the NHS. In other words, they are the acute part to which you go if you need treatment, and you go there only if you need the treatment that only they can provide. If that treatment is never going to be completed in either hospital or prison, it will have to be continued in the community in the form of aftercare. Therefore, there is a connection between what happens in prison and what happens in the community, which is the work that needs to be done between the two. However, as with the NHS, the default position in the criminal justice system is in the community, from which you go to prison if you need that treatment. Unfortunately, that position has been reversed and now, thanks to the ridiculous NOMS among other things, instead of being separate, probation is subordinate to prisons, which is absolutely the wrong place because where probation ought to be working is with the courts and the police in the community. That is where it has worked traditionally. Then it works with all the organisations within the community which can help deliver the work that it has to do.

If you look at this the wrong way round and see probation as being subordinate to prisons, you get into a muddle, which is not helped by the fact that there is now no director of the National Probation Service. As we have said many times, there is no senior probation official in NOMS. Therefore, an awful lot is being said and done about the probation service without proper senior probation service advice at the heart of what is happening. What worries me about this is that I now hear that yet more reconstruction of probation is going to be done in isolation from all that has happened so far and that it will involve more competition and more people coming from outside. The role of the probation service is offender management; it is the public sector responsibility to manage offenders who are sentenced by the courts. I hope to goodness that whatever happens does not include dilution of that.

I also worry about the probation service because it clearly does not enjoy the confidence of the Secretary of State. That is alarming, not least because all the documents published about the probation service say

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that all the probation trusts are performing to level 3 or better, which means good, and some of them are performing to level 4, with 100% delivery of all their programmes. If they are performing as well as that, what is the problem? As regards community sentences and the talk about being punitive, every sentence is punitive because it involves an element of coercion and/or deprivation of liberty of the offender. It is said publicly that 65% of current community sentences already contain a punitive element. The aim is to get to 95% with a punitive element. However, people have mentioned all the exclusions, all the people for whom there should not be a punitive element, such as all the mentally disordered, all the people with learning difficulties, all those who are immature and all the mothers who have problems looking after their children. There is a whole raft of people. If you are going to say that 95% of community sentences are going to have a punitive element, you will confuse everyone.

Let us also not forget the definition of “punitive”. If punishment is clearly what we understand it to be, “punitive” is the “awarding”, “inflicting” or “act” of punishment, or,

“severe handling, belabouring or mauling”.

I hope that that is not what is meant. I hope that Ministers will remember that the staff who have to deliver these so-called punishments have to be under no illusion that the punishment is awarded by the courts in a civilised society and it is not on for anyone then to administer further punishment. If people talk about adding a punitive element, they are giving people doubts as to who is going to deliver that punitive element. Sure as anything, it must not be either prison or probation staff. That would be utterly wrong and would undermine the whole system.

As regards payment by results and the 2015 promise, I am interested to see that a pause has now been imposed by the Secretary of State, including a pause on payment by results in Wales and the West Midlands probation services. The pause is for reconsideration. In addition to all the questions that have been asked by the noble Lord, Lord Rosser, and will no doubt be asked by other noble Lords during this debate, my plea to the Minister is that serious reconsideration be given to what is being proposed, because this posturing about punishment and the undermining of the position of the probation service, which has the responsibility to the community for delivering these sort of sentences, and the confusion being put in the minds of the staff who have to deliver this policy, must be avoided if the justice system is to work. I hope that during that reconsideration work will be done to examine what is actually possible, given the fact that there has already been a 19% cut in probation service resources since 2010, and more cuts are scheduled. It is no good saying that you will do things if you cannot, because you will do even more to undermine the confidence of the public.

I hope that the Minister will agree to this reconsideration and that we will not process the rest of the Bill until we have the government response to the probation consultation with us so that we can take all the factors into account when recommending what should go forward.

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Baroness Hamwee: My Lords, a rehabilitation revolution will be welcome. Where I have criticisms, they are intended to be constructive this afternoon and in the further consideration of these clauses, because I want to see that revolution work. My first concern, as other noble Lords have indicated, is that the rhetoric around this should not become all-important and an end in itself. I wonder whether legislation would have been thought to be necessary if it were not for a perceived need to articulate that punishment is a principle of sentencing. It is only a principle. What is essential is that the punitive element does not eclipse or jeopardise the other elements. As my noble friend has said, what may be punishment to one person would not be punishment to another, so the assessment of the court, based on information about the individual offender, is central to the implementation of this, and indeed its presentation. I welcome the discretion of the court.

Designating the primary purpose of, say, education as being punitive worries me immensely. Someone who has difficulty with reading and writing could usefully have the right sort of education. Their problems may stem from dyslexia, for instance. If the response is badged as punitive, that raises a lot of questions about reinforcing negative attitudes to education, and that may lie at the heart of the offender’s problems.

4.30 pm

Similarly, we have heard that supervision is required. To me, supervision is quite a positive term—or at least it is in most contexts—and I do not think that it should be presented as negative.

Curfews may be used as one response. However, is it right to confine an offender to his unhappy circumstances—the circumstances against which he is reacting and which led to his offence? The curfew can last up to 16 hours, which clearly would effectively preclude normal structured work in the absence of a magic carpet to get the person there and back. It would also preclude time for rehabilitation. I would not be surprised if someone faced with a very lengthy curfew stocked up on alcohol on his way back to his many hours of restraint, just to see him through it.

I have a related concern about full-time unpaid work and how this relates to jobseeker regulations. The Magistrates’ Association has briefed me, and no doubt other noble Lords, about its concerns on this. It has received a letter from the Minister for Employment, which indicates that the DWP would not expect to relax regulations for those doing unpaid work. The Magistrates’ Association says:

“Sentencers will want to be sure that if they sentence an unemployed offender to unpaid work, they will not unwittingly be responsible for the cessation of benefits and the removal of the offender’s only source of income”.

Therefore, there are issues around joining up between departments on which I hope the Minister will be able to give assurances in due course, as I did not give him proper notice of these points before today.

Is tagging punitive or is it, for some people, a badge of honour? Quite apart from reliability—and one needs only to think about that bossy voice on the sat-nav which tells you when you are on a motorway,

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“Turn around now”—there are civil liberties considerations. Having been convicted does not mean that you completely forfeit these. Also, technology is not a substitute for one-to-one work. With regard to value for money, what proportion of the offenders within this cohort are likely to be at risk of breaching the conditions? Low-risk offenders for whom the company dealing with the technology will be paid probably present a very interesting cash cow.

The punitive elements are not to apply where there are “exceptional circumstances”, to use the words in the amendment. What might these be? The Government need to be clear about this. I hope that we can be told during the passage of the Bill that there will be guidance—and indeed what the guidance might say—either from the Government or from the Sentencing Council. Exceptional circumstances relating to the offender could include alcohol or drug dependency and other traits—to put it in shorthand—related to the offender’s personality. However, that applies to huge numbers of offenders and so by definition is not exceptional.

I shall table an amendment at the recommitment of these clauses. At the moment, I have it in mind to explore whether the term “exceptional” should be replaced by “particular”. What might exceptional circumstances be relating to the offence? Might it be a single mother who commits some petty shoplifting because she has run out of money to feed her family? In promoting this programme, the Prime Minister says that committing crime is always a choice. However, I suspect that some offenders, such as that single mother, may not agree.

I very much welcome the legislative recognition of restorative justice. I do not believe that to be an easy option; facing up to what you have done and to the people that you have done it to must be very difficult indeed. However, we all know that legislating for something and implementing it are very different. This is resource intensive and those resources must include training not only those who apply the programmes but perhaps even the judiciary, although I hesitate to suggest it. Perhaps explaining what is available to the judiciary would be a more delicate way of putting it. It will all take time. None of this is to argue against it but rather to urge the investment of effort and energy as well as money.

Much of the good work in this area and in other rehabilitative work comes from the third sector and from that sector working in partnership with others. It is obviously important to build on this. I would say—constructively, I hope, but bluntly—that payment-by-results contracts must not be a blunt, wholesale introduction of privatisation or of compulsory competitive tendering. Those contracts must not drive those small but very effective organisations, some of which are quite maverick and certainly unconventional, to the wall. Such organisations tend not to have the infrastructure or resources to take on the risks inherent in the bidding process that is in prospect, or indeed to bid as that in itself costs a lot of money.

I hope that the Minister will be able to reassure the House about the work that I know he has in mind, and indeed is pursuing, to develop mechanisms to ensure that commissioning supports the work rather than

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threatening it. Could there be some sort of preferred bidder arrangement to allow an organisation to work up a scheme without going into competition? How are we to ensure that these smaller organisations may find a place in a programme undertaken by a larger organisation within a bigger scheme? The detail of implementation, perhaps under different management, is so important in all of this.

In thinking about how payment by results may operate in practice, it has also occurred to me to wonder how those practitioners who quietly, and often in a small way, do quite extraordinary rehabilitative work will feel about working not within the culture to which they are accustomed, and where they feel comfortable, but within the world of the big beasts of service provision. It is a question both of public service ethos and of that culture. I also wonder what a result is—this is not intended to be football jargon—and how one measures it. The question of pilots has been raised. One can pilot and pilot without coming to a decision. Perhaps if we find language that is about a slow roll-out with an opportunity for evaluation and assessment, that would fit better within what the Government are planning. It may indeed be payment by results but transparency is important too and that may not be available, given the application or non-application of freedom of information to the private sector.

The noble Lord, Lord Ramsbotham, expressed alarm about the prospects for the probation service. I share that alarm about what goes to the heart of its role and remit. “Service” is the right term; it is service to the community. On the probation service, I hope that the Minister can be clear about how and when decisions will be taken. Have they indeed been taken? Are they part of this legislation or parallel to it? They are clearly closely related. We know that it is proposed that certain services remain with the probation service. How will that impact on the capacity of the service to undertake other functions? It has been suggested that those working in the probation service should look at mutualising their offer, so the same issues arise as for the third sector.

We used to talk about the endless changes to the teaching profession and the fact that it was shaken up every year or so. It seems that the probation service has over the years suffered from a lot of shake-ups, so stability is to be aimed for. Sentencing policy must command public confidence, which is not the same as the approbation of certain parts of the media. The sentencing of individuals must command the confidence of those affected. The research undertaken recently by those two admirable organisations, Victim Support and Make Justice Work, tells us—I shall not take up more of the Committee’s time by quoting at any length—that victims’ attitudes are not significantly different from those of the general public; that the public have similar concerns and reparation holds a very strong appeal; and that punishment and the protection of the public should not be to the exclusion of rehabilitation and reform. Like everyone else, as has been said, what the public simply want, and what society wants is that the offender does not do it again. That is the objective that we must keep in mind.

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Lord Woolf: My Lords, I hope that I can start by referring to the amendments to Part 2 before us in the most enthusiastic terms of which I am capable. I congratulate the Minister because I know that he played a significant role in ensuring that these amendments include the valuable provisions with regard to restorative justice. The provisions are substantially overdue; the evidence has been available for us to see; and in the debates in this House there has been a unanimity of view as to the positive role that it could play. All that I would caution, if I may, is the importance of ensuring that the proper groundwork is done in regard to its introduction and execution. It is first of all critical that victims see it as it is indeed intended to be—something that is meant to serve them as well as the community generally. Victims are at the centre of restorative justice and the evidence suggests that if conducted properly it provides them with real reassurance that those in authority recognise the importance of putting them at the centre of the policy to be adopted.

Turning to Part 1, I listened with great care to what was said by noble Lords, Lord Rosser and Lord Ramsbotham, and the noble Baroness, Lady Hamwee. Bearing in mind the admonition of the Minister that we are treating this as a Second Reading in our approach, I should say that I strongly support what they have said. I do not know whether it is right to refer to expressions of concern or expressions of alarm, but whichever term is used it is certainly endorsed by me.

4.45 pm

I, of course, have well in mind the amendment tabled by the noble Lord, Lord Ramsbotham, which seeks to take out of the Bill the parts of the proposed amendments to Part 1 which deal with the question of punishment. Unless steps are taken by the Government to deal with the problems which this part of the amendment creates, I can assure the House that when the amendment proposed by the noble Lord, Lord Ramsbotham, is reintroduced it will have my strong support. The language used in this part of the proposed amendment will create huge difficulties for sentencers. I cannot conceive that the language would be in the terms that it is now if those who have responsibility for sentencing had been listened to.

Comments have been made suggesting that this will create problems for the judiciary. In this regard, I am sure that the noble Baroness, Lady Hamwee, will forgive me if I say that judges—and I include magistrates when I refer to judges—have no problem about training because they all receive it. They would like to receive more training but the resources available make that very difficult to achieve. I anticipate that for the purposes of community sentencing the judges will receive proper training. If they do—as they will—I cannot see any need for the proposal contained in the amendments to Part 1. Although I am sure it is certainly not intended, they are offensive to the judiciary, who strive to ensure that each person dealt with by them is sentenced to the appropriate sentence.

I have looked carefully at the list of community orders contained in Section 177 of the Criminal Justice Act 2003 and each order, in the case of certain offenders, is perfectly capable of being a form of punitive action. This perhaps emphasises that the amendment to include

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a mandatory requirement is not required. I urge the Government to rethink whether they want to pursue this. If they do, how do they think it will work in practice? Where a judge—whether a magistrate or a senior judge—is involved in deciding on the disposal of an offender, he or she has to consider which of the alternatives available is the appropriate one to apply. If the judge comes to the conclusion that any of the community orders listed in subsection (1)(a) to (l) is the appropriate way of dealing with an offence, then it would equally be the case—unless it is an unusual situation—that he would have decided that that is the appropriate way to achieve justice in the disposal of the offender. But having come to that conclusion and decided that there is no need to do more than what he already intends to do, what should he do about the provisions in Part 1? Can he say that there would have to be exceptional circumstances to impose another punishment just because of the language of Part 1, and if so, would it be unjust to do so?

As to the second half of that contention, I would suggest that it must be unjust to impose something which a judge does not think is the appropriate form of punishment. Given that the way to treat an offender is the most difficult of judgments, we will get into situations where the judge conducting the task of disposal will not be given the liberty, having come to a conclusion on the appropriate manner of disposal, not to impose another form of disposal. That does not seem to me to be good sense.

Lord Ponsonby of Shulbrede: My Lords, it is clear from the Government’s response to the community sentencing consultation held last summer that there is substantial consensus among the consultees, and the Minister was right to point that out in his opening comments. The Government have accepted most of the advice given and the current proposals seem to be largely evidence-based and practical. However, there is one glaring exception, which has been raised by every noble Lord who has spoken so far in the debate, and that is the introduction of a mandatory punitive element into every community sentence. The Government’s original impact assessment of the proposals, which was published in March with the consultation, acknowledged that they would have an adverse impact on reoffending rates by causing primarily rehabilitative requirements to be replaced by primarily punitive requirements:

“Given a limit on the overall resources available for probation services, delivering a clear punitive element to every community order may cause the primarily rehabilitative requirements to be substituted for primarily punitive ones. Evidence is unclear on the effectiveness of different community order requirements in reducing re-offending i.e. some requirements may be more effective at reducing re-offending than others. There is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate of those offenders subject to community orders”.

I have a clear question for the Minister, and in asking it I remind the noble Lord of the wise words of the great Jimmy Maxton, who said that you should not be in the circus unless you can ride two horses at the same time. My question is this: will it be open for sentencers to deem any element of a community order to be punitive? It is clear that a curfew, community

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payback or an exclusion order are, but can a court decide that, for example, an alcohol treatment programme taken alone as part of a community order has a sufficient punitive element to satisfy the requirements of this Bill? Here I should make it crystal clear that I am not talking about exceptional circumstances, but what the sentencing Bench deems to be punitive. It is important that sentencers retain their flexibility since every case is different. Can sentencers deem the rehabilitative requirements of community orders to be punitive as well, so as to satisfy the requirements of this legislation?

I want to give an example of how excessive restrictions on sentencers’ flexibility can lead to perverse consequences, which are clearly against the Government’s intention. My example is from the victim surcharge, a separate matter, but one which I think illustrates my point. On 1 October, the new extended victim surcharge provisions came into force, where offenders are charged money—cash—for the sentence they receive. Under the new arrangements, sentencers are obliged to charge a victim surcharge of £60 to those who receive a community order.

Last week, while sitting as a magistrate, I came across something that I am sure would not be the intention of the Government. I had a beggar in front of me who had a number of convictions for begging both this year and last, a Romanian lady in her mid-40s. The new element in her life was that she now had an address in north London. As a sentencing Bench, we wanted to give the beggar an exclusion order from central London—the City of Westminster. However, if we had gone ahead with that sentence we would have been obliged to charge the beggar £60, because the exclusion order is part of the community order. Clearly, this was not a practical way to proceed, so we dropped that idea on the advice of our clerk and sentenced in the usual way of one day deemed served, so the beggar effectively walked free. I am sure that that is not the intention. It would be much better if sentencing Benches had discretion in that matter. However, it illustrates the point that if sentencers do not have discretion, you can and do have perverse consequences.

My next point has, I believe, been made by the noble Baroness, Lady Hamwee. I was contacted by the Magistrates’ Association regarding the status of people who are working a number of hours in one week and the prospective conflict of their receiving jobseeker’s allowance. I got the same letter as the noble Baroness, Lady Hamwee, and will not repeat the point she has made, but am sure that that is a point that should be resolved between the Ministry of Justice and the Department for Work and Pensions.

The Government’s response document contains statements about restorative justice, victim personal statements, separate provisions for women offenders and a number of elements for people who breach their community orders, all of which, taken in isolation, are to be welcomed. However, one group of offenders was not concentrated on in the Government’s response, which I think is regrettable—younger adult offenders or 18 to 24 year-olds. The Minister will know that this is a particularly prolific and vulnerable group of offenders. There has been a number of initiatives over recent years and months, some of which have been very successful,

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as the Government acknowledge. However, there is no provision in this legislation to take any of those pilot studies forward. There have been initiatives in Manchester and Yorkshire, and it is disappointing that none of those has been taken forward. I would be interested to hear from the Minister how he proposes to address this group, which is often regarded as a forgotten group.

5 pm

Finally, I want to talk about the costs of these proposals and the points made by my noble friend Lord Rosser, particularly the costs of the extension of tagging. The anticipated costs have not been made available to the Committee; although some of the briefings we have received have speculated on the costs, none of this has come from the Government. It is very important that none of these potential increased costs should be taken out of the price of one-to-one supervision by probation officers, which is the most valuable thing that happens. It is about balancing employment, family, stable relationships and stable finances, and trying to help offenders manage these things. The management of these issues is by far the most beneficial thing. Curfews and GPS are useful add-ons but they are not to be seen as a replacement for the useful work that the probation service does.

The Minister knows that offenders are not an obedient workforce. They are characterised by periods in care. They have mental health problems, addictions and poor literacy. This is an opportunity for the Minister to address these problems and build on the good work that is done by the probation service, rather than undermining it through any reduction in funding.

Baroness Linklater of Butterstone: My Lords, there have been some very important contributions to this debate. I have agreed with pretty well every word. I therefore ask the House to forgive me if there is some repetition of what has been said.

We must be clear about what we want from the courts in terms of community sentencing and what we expect from those who deliver sentences. Above all, we must be clear about the values that inform the process. In introducing himself and the Government’s proposals, Chris Grayling announced that he is going to be a “tough Justice Secretary” because he believes that greater toughness and more punishment is what the people of this country need and want. I wonder. A lot depends on interpretation and what is meant by and expected from this new emphasis on punishment as an additional element in all community sentences. I question whether what he is proposing will indeed be a positive way forward.

The greatest proportion of all those coming before the courts receive community sentences, which have already proved to be significantly more effective than prison in reducing reoffending by more than 8.4%. Of course, they could and indeed should be still more effective, focused and robust, particularly if better resourced, and I hope that the Government will do just that. Like others, I pay tribute to the probation service in particular for its role in providing an infrastructure and effective programmes with experience and skill all around the country.

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The purposes of sentencing as set out in the Criminal Justice Act 2003 and revised in 2007 remain, I assume, the agreed framework. Very importantly, the five elements are interdependent and must be applied in equal measure. They are: reparation, rehabilitation, punishment, crime reduction and public protection. However, the Government want to alter this balance and prioritise punishment, assuming that the sanctions currently available are in some way too soft. This also begs the question of why some people break the law, whether those involved in low-level reoffending are thinking of potential sanctions they might face if they are caught, and whether punishment per se will have a significant effect anyway.

The Government say that they want more punishment in every order and that this would generally mean,

“restrictions of liberty that represent to the public a recognisable sanction”.

As has been said, these are curfews, exclusion or community payback. The Government also say that,

“what is punitive for one offender … will not necessarily be punitive for another”,

recognising that all disposals must be relevant to the individual offender. Clearly, community sentences should challenge in ways that will effect change, especially in reoffending, and the public need to be confident that this is happening. However, typically the needs of such offenders are significant, particularly in terms of mental health, lack of education and school exclusion, low IQ, domestic violence, unemployment, homelessness et cetera. Unless the sanctions of community sentences take these into account and support needs are met, they are bound to fail.

It is unhelpful and misleading to attempt to separate the punitive and non-punitive elements of an order. This is because they are interconnected, and the chances of breach and reoffending are high if this is ignored. It also risks—as we have heard it so eloquently put by my noble hero—constraining judges and magistrates, who must take into account the individual offender’s circumstances as well as the offence. I suggest that successfully preventing reoffending matters more than being punitive for its own sake and should remain the ultimate goal of sentencing.

The National Institute of Economic and Social Research has done some very interesting work for the MoJ on punitive sanctions and found that unpaid work alone—that is, a “punitive requirement”—had no impact at all. It found that a lot depends on the needs of the offender, and the best chances of punishment having some effect are when it is added to supervision and a programme. This indicates more clearly than ever that punishment has an effective place in the sentencing armoury only in combination with other interventions relevant to the individual. I urge the Government and my noble friend, when he is in his place, to look closely at their own good research on the place of punishment in what they hope to achieve in reducing reoffending.

The Government are quite rightly concerned about public confidence and the confidence of the courts in the effectiveness of community-based sentencing. This hinges on a combination of knowledge, understanding

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and experience and, where community sentencing is concerned, a great deal more is required. Community justice is an area where public confidence is not high because so little is generally known of the reality of sentences and community sanctions. This is hardly surprising because they do not take place in a public arena and you cannot see or hear what a curfew or an exclusion order or tagging entails. Even community payback is rarely publicly visible either, let alone the reality of specific programmes for drug or alcohol abuse, mental illness et cetera.

An extremely effective programme run by the Magistrates’ Association in conjunction with the probation service, Local Crime Community Sentence, aims precisely to close this gap in awareness and knowledge of how the whole process works by taking audiences through real cases and making them act as sentencers. The resulting growth in understanding and confidence in the process on the part of participants is palpable and measurable. We need much more of this kind of initiative and much more information.

Another piece of important work recently carried out by Victim Support and Make Justice Work—mentioned by the noble Baroness, Lady Hamwee—has demonstrated how much the public, especially the victims of crime, want to have more information at every stage of the criminal justice process. They want to be involved by having their views heard and then being kept in the loop with the outcomes of sentencing. Crucially, the overriding response from victims, as we have already heard, is the need to be reassured that what they have experienced never happens again to anyone. This is a far stronger feeling than any retributive response, which the Government should heed. Victims want to know, too, what community penalties consist of, and so they should. I believe that, if they did, they would be encouraged by much of what they found and thus be more confident. Their voice must be heard and the Government must have ears to hear. The Government should develop more programmes and information dissemination to make these realities more visible and available to victims in particular.

This need extends to sentencers, too. As chair of Rethinking Crime and Punishment, I saw the effect of visits that we arranged for judges and magistrates to programmes available to them in their area to see work being done by the probation service and local voluntary agencies. It was like an epiphany to many, because judges do not normally get out and about that much to make such visits. Sentencers must know more about the disposals available to them. Magistrates, too, no longer have basic travel expenses paid for such visits and have difficulty in many areas staying in touch with local provision. There is no substitute for first-hand visits and discussion. “I never knew it was like that”, was often the refrain after these visits. I hope that the Government, with their enthusiasm for community penalties, will look again and restore this very modest but potentially transformative practical support.

Finally, I shall say a quick word on restorative justice. The proposal that it should be readily available to the courts, victims and offenders is an enormously important move. It represents the embodiment of the same principles of effective justice that I have already discussed—namely awareness, knowledge, understanding

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and meaningful engagement with the participants, particularly victims. I have supported these principles and the work of the Restorative Justice Council for years. I welcome these proposals as having the best possible potential for enabling positive outcomes following the damage of crime.

My caveat is that it will take a great deal of time and large investment to provide adequate numbers of suitably trained and accredited facilitators, who are key to the process. Sentencers who would be initiating the process currently have no established tradition in the use of RJ. They would need training as well as convincing. The whole process will be extremely complex and expensive, and it will be vital to ensure that the quality of delivery is of the best and not rolled out in a piecemeal fashion. It would be a disaster if expectations were raised without adequate quality delivery. That would destroy confidence and set the programme back for a long time. The Government must clarify not only how much they are planning to invest in training, promoting and delivery but the estimated timescale for the rollout of RJ. I cannot imagine that it will become widely let alone generally available for some considerable time, even with the expert advice and support of the Restorative Justice Council and other agencies. I look forward to hearing the Minister’s reply.

Positive change does not happen through negative strategies. Punishment will fail unless it is married to positive strategies geared to the needs of each individual —victim and offender alike. The research confirms this. I urge that that should be our goal.

Lord Lloyd of Berwick: I support the amendment moved by the noble Lord, Lord Ramsbotham. I had not intended to speak so will do so briefly.

I particularly wanted to say how much I agreed with the speech made by the noble Lord, Lord Rosser. What we are engaged on here is taking another step down what has become, recently and most unfortunately, a well-trodden path: you create a new offence carrying a mandatory sentence; you then allow the court not to impose the sentence if there are exceptional circumstances that would make it unjust to do so. My first observation on that, of course, is that it is a complete misuse of the word mandatory. The word mandatory should be confined to cases that are really mandatory, like the mandatory sentence of life imprisonment. However, there is a worse objection. It seems to me that it creates confusion. Of course, it has every advantage from the Government’s point of view, because it enables them to say that they are being tough on crime. At the same time, however, they can say that they are not leaning on the judges—oh no, no—to impose a sentence that they would not otherwise impose since courts never impose a sentence that they do not regard as just. That point was made very eloquently by the noble and learned Lord, Lord Woolf.

The Minister must say in reply which of the two ways he intends to have it. What do the Government really mean? What do they really want? In legislation, especially in criminal matters, clarity is of the first importance. Absence of clarity, such as I think one will find in the working of Part 1 of the schedule, has bedevilled criminal legislation, especially in the area of sentencing, in recent years.

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5.15 pm

Baroness Butler-Sloss: My Lords, I had not intended to speak, but I strongly support the speeches of the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Woolf. I add my congratulations on restorative justice, although the points made by the noble Baroness, Lady Linklater, were such that I hope that the Government will listen carefully to them.

Punishment needs to fit the crime, there is no doubt about that, but I share alarm—alarm really is the word—about the use of the words “punitive element” and the requirement for punishment, because it is only in exceptional circumstances that one would not go down that path. There will be many circumstances which are not exceptional where it would be unjust or inappropriate to make an order that was seen as a requirement of punishment. I urgently ask the Minister to rethink that part of the proposals.

Baroness Howe of Idlicote: My Lords, at last I rise. I will try to be relatively brief.

Like other noble Lords who have spoken, I remain puzzled and more than a little exasperated as to why the Government feel that they need to write the word punishment into everything to do with sentencing. Surely, we all know that a court sentence is indeed a considered punishment for the crime. I share to some extent the view of my noble friend Lord Ramsbotham that what has been appearing recently has been playing to the two Galleries.

The other concern that I share with my noble friend is that the whole position of the probation service has not been made clear at this time, so that the two issues could be considered together. Like other Members who have spoken, I have huge regard for the probation service and the work that it has done over many years, going back to my time as chairman of a juvenile court many years ago. Every report on what it is doing, the levels that it has achieved and the prizes that it has been getting indicates what a good job it is doing. The idea that that vital role is to be outsourced to people who are less well trained worries me a lot.

On restorative justice, I must admit that I am a little concerned about the cost which the noble Baroness, Lady Linklater, told us will be necessary before it can be introduced. I very much welcome the idea of it being available, especially at that important moment between conviction and sentencing. I hope that there will be improvements there.

As others have said, we know that community sentences are increasingly being used for lesser crimes. Of greater importance is the fact that they are 8.3% more successful than short prison sentences in reducing reoffending. One has only to think of the number of contacts that you make once in prison that will encourage you to get further involved in crime at a later stage to realise the sheer common sense of that.

Equally welcome would be rather more definition of the exceptional circumstances that can be brought into play. I hope that we are going to get more of a response from the Government about that because it will always be relevant when sentencing vulnerable disabled offenders, younger adults and, even more importantly in many ways, not least with regard to

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cost, women. It is logical that every effort should be made to keep that group out of prison, not least as their offences are usually minor and they themselves have often been the victims of sexual or other kinds of violent crime. We must also remember—hopefully, all courts do—that any imprisonment may well mean that the children have to be taken into care. Think of the cost, both financial and in terms of the upbringing and disruption of that child’s life. Again, if the accommodation is repossessed by the landlord, who knows? The whole family could be broken up. That, again, is a real concern.

I shall touch on another important issue that has been mentioned: the punitive elements could mean that the rehabilitative elements are unable to be proceeded with. We need proper reassurance that there will not be any nonsense about an imposed curfew or unpaid work, meaning that an offender cannot get the mental health treatment that they need or indeed go to the drug rehabilitation centre. That is such an obvious point that I hope it can be dealt with quickly.

On the issue of tagging, I know that a great deal is going on regarding improvements in these techniques. I am particularly concerned about this because of the use that this can be put to when dealing with not just violent offenders but ones who might have been involved in stalking, whose victims have already suffered huge amounts of sexual and other forms of violence. I would like to hear much more about that. I shall leave it at that—speakers at the end should be as brief as possible.

Lord Reid of Cardowan: My Lords, in my contribution I cannot lay claim to the same expertise that other noble Lords have brought from acting on the Bench as judges and magistrates, but I am familiar with some of these aspects. It may surprise the Minister to know that I am not riding to his rescue this evening; in fact, I find a lot of the contributions that have been made up to this point extremely persuasive.

For my part, I make it plain that I support the appropriate use of community sentencing, and in that sense I support the move by the Government. I may be remembered, along with my colleague Mr Blunkett, for introducing indeterminate sentences, which was for the element of protection, not punishment. In their wisdom, the present Government have taken a different view, which they are entitled to.

The one time when I got into real trouble was when I reminded the judiciary that the introduction of indeterminate sentences for those from whom the public needed protection, in our view, was supposed to be balanced by the ending of custodial sentences for those who should not have been in prison—in other words, for exhorting the appropriate use of community sentencing. I did so at the invitation of the Lord Chief Justice, but I was attacked by every judge in Britain except the Lord Chief Justice for reminding them of the original thinking behind the balance of indeterminate and community sentences. I am for community sentences. I am also very supportive of restorative justice, if for no other reason than that it appears to work from the point of view of the victim and for the rehabilitation of offenders.

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On community sentencing, I am puzzled about why it is felt necessary to introduce the requirement that the purpose of punishment be explicitly recorded—I am careful not to use the word “mandated”—as one of a range of requirements upon the judiciary. I am therefore left to work on the basis of formal and informal press briefings. I recognise from my experience that the press do not always reflect accurately the reality of a Minister’s thinking, so I do not want to assume they are 100% accurate, but we are led to believe that it is necessary because this is what the public demand. I am not sure that that is the main concern of the public about community sentences. I think the main concern of the public is that they do not quite know what they involve or that people are being required to do things that they would not normally do.

We put in a lot of effort to highlight the nature of community sentences. Some of the manners in which we did that were not popular or acceptable. We had among a range of practical suggestions one which included the people involved wearing particular coloured vests. At the level of operations, some people may have objected to that, but noble Lords will understand that the reason behind it was that we recognised the appropriateness of community sentencing, but we also recognised that there was unawareness among the public of what good was coming from it and what those who were thus sentenced were actually doing to recompense the community and victims for the effects of their crime.

If the Government wish to reassure the public about the nature of community sentencing, this clause is a pretty blunt and crude way of doing it. The problem is that this will backfire. I have no problem with Governments who take a strong line on law and order. They are always accused of playing to the Gallery, but when the Bill uses this particular expression and requires this particular reaction in community sentencing—which would be taken into account anyway by the judiciary because of the criteria that inform our sentencing policy, as the noble Baroness pointed out earlier, which derive from 2005, I think from memory—it is seen as a gratuitous attempt to play to the Gallery and, however sincere the Government are, they are weakened.

I support community sentencing where it is appropriate. There are many people in prison who should never be there and who will not be mended in their ways, rehabilitated or make recompense to society. In supporting restorative justice, I hope that the Government will look again at this clause and rely on the wisdom of the judiciary. In community sentencing, that has not been the problem; the real problem has been that we need to do more to illustrate to local communities the effect of what is being done for their good as recompense and as part of rehabilitation.

5.30 pm

Baroness Warnock: My Lords, I hope that the Government will pay attention to everything that has been said today. There seems to be a total confusion about the meaning of the word punishment and the adjective punitive. The meaning of these two words has separated over the years. Punitive suggests something quite alien from the notion of punishment, which is

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what is handed down when someone has been convicted. We know that vengeance does not work and that punitive sentences are not necessary. The whole point of punishment is to prevent further offences. We know now that community sentencing does, relatively speaking, work in the way that short prison sentences do not.

I beg the Government to concentrate on what is intended by punishment and to go on the evidence that community sentencing, with good support from the probation services, can work and that this is the intention. The adjective punitive seems to me to be completely out of place in this discussion altogether. I believe that the Government must listen to what has been said today.

Lord Elystan-Morgan: My Lords, I agree wholeheartedly with the remarks made by the noble Baroness, Lady Warnock. In relation to the past 30 years or so, Governments of every hue must stand in the dock and answer the accusation that they went out of their way to curtail the discretion that otherwise would have been vested in a judge or magistrate. Practically all Governments have done that and some of them more shamelessly than others. I am sure that anyone who has served in the courts in a judicial capacity, however senior or however humble, must be very aware of that.

The proposal that the Government are now putting forward in relation to the punitive approach is one of the most far reaching in that context. If it should be the case, as I assume it to be the Government’s case, that one-third of community orders which are made without a punitive element according to their definition must in all cases be dealt with in a different way, save for a very minuscule minority that is exceptional, then it is a very far-reaching and drastic proposal.

I fully accept that the Government are talking not so much about punishment in the sense of the disposal of a case of a person who has committed a crime but about something else, which connotes the idea that the experience of the defendant should be painful. My Latin is not all that good but does the word punishment not come from punitas? Is punitas not one and the same thing as pain? It is poen in Welsh and pain in English. Is that not really what the Government are after?

However, I think that the argument put forward by the Government, which has been described as offensive by the noble and learned Lord, Lord Woolf, and alarming by the noble and learned Baroness, Lady Butler-Sloss, is highly offensive. The 2003 Act had a vast range of community disposals. In many ways, they were imaginative, flexible and double-banked. The sentencer had a huge armoury at his or her disposal.

As I understand it, the Government are now saying that that failed to achieve its purpose. The people who were charged with imposing sentences missed the whole point. At some time after 2003, tens of thousands of sentences every year which should have involved a punitive element did not achieve their purpose because that element was missing. That statement is either correct or incorrect. If it is correct, it must mean that many people sat in judgment as magistrates, circuit judges and recorders who should never have been there. They were missing the whole point. However, if

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that statement is incorrect, it is one of the most unjust indictments of the administration of justice that there could ever have been. It is one or the other.

I ask the Government: where is the evidence that in tens of thousands of cases, year by year, at some point in time after 2003, that has been happening? I feel it is a policy and a gesture that is cosmetic rather than real and intended to give the impression of toughness. The greatest toughness to my mind that can be achieved in relation to the administration of justice is doing that which is right, that which you know to be just and that which you consider to be proper by society, irrespective of whatever prejudices tabloid editors might have against you. That is the toughness that the Government should seek to achieve.

Lord Marks of Henley-on-Thames: My Lords, the test for these amendments is whether they work in making community orders more effective and in cutting reoffending as a result. It is quite plain from the debate today that it is common ground in this House that seeking reform and rehabilitation of offenders, while recognising the importance of offering redress to victims, provides a balanced approach, which offers a far greater prospect of cutting reoffending than a programme of increasing prison terms and prisoner numbers.

However, if there is to be a compulsory requirement imposed for the purpose of punishment in community orders—it is noteworthy that the phrase punitive element is not used—it is very important to recognise what is meant by punishment in this context. In an enlightened society, the punishment involved in a prison sentence is the loss of liberty for the offender, not the imposition of a harsh and inhumane regime for prisoners serving their sentences. Therefore, the punishment element in a community order should be reflected in a lesser but none the less significant loss of liberty—the liberty to do as one pleases within the law—by the imposition of some compulsory sanction that restricts that liberty.

It should not follow that the activity that offenders are obliged to undertake by community orders must be unpleasant, degrading or harsh. It is not likely to be helpful to force offenders to do some kind of hard labour for the sake of it, much as some elements of the press would wish us to do so. It is likely to be helpful, however, to oblige offenders to acquire work and life skills that will help them to find work and take their place in non-criminal society. Compulsory training, useful work—particularly work that benefits the community—treatment for addiction and anger management, and, importantly, a significant commitment to compensation, may all have their place in a regime of punishment, as may curfews monitored by electronic tagging that oblige offenders to remain at home for a reasonable number of hours in the day. I reiterate the point made by my noble friend Lady Hamwee that 16 hours hardly seems a reasonable number of hours in a day.

From what I have said, it follows that I welcome the passage in my noble friend’s opening speech that this is how the Government see the punishment provision. But I can foresee the way in which the provision is presently worded leading some to question what is meant by punishment. It is important that it is absolutely

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clear, as my noble friend suggested, and as the noble Lord, Lord Ponsonby, wanted clarified, that the discretion as to what is the punitive element in a sentence is a discretion to be exercised by the sentencer and that he or she can comply with the requirement in the schedule in a way that he or she reasonably sees fit.

I would add a couple of words about one or two provisions of this part of the schedule, to which the House may wish to give attention next time. The reference to “exceptional circumstances”, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, as being the circumstances required to invoke the exemption from the requirement for a punishment element or a fine in a community order is far too strong. Exceptional is a very powerful word in statute and runs the risk of being more restrictively interpreted by the courts than my noble friend’s speech would indicate that the Government intend.

I also add a minor point that the proposed provision that breach by a contractor of the code of practice for electronic monitoring will not give rise to a civil cause of action may offer contractors, who are likely to be private contractors, an unwarranted level of immunity, and may weaken public confidence in how they perform their duties in respect of an intrusive form of punishment.

I add a word or two about restorative justice. The provisions of Paragraph 5 of the schedule have been welcomed across this House. By bringing offenders into contact with their victims, restorative justice helps them to understand the impact of their offences and assists victims to feel that society cares, understands the ordeals that they have been through and responds to them. For far too long, victims of crime have been treated as witnesses only, and even the introduction of victim support over recent years has failed adequately to address this. I know from my own experience and that of others that an arrest and a flurry of statements following an offence are followed up with a couple of letters offering counselling by way of victim support, when the victims may not need or want such counselling. Then far too often there is a silence, without the victims even being told what has happened because the offender has pleaded guilty so no evidence is needed from them at a hearing. That leaves a gaping hole in the system of providing victims with proper redress, and it needs covering at all stages of the process.

Deferring sentence to allow for restorative justice activities may prove a turning point for offenders and victims, and the evidence to which the noble and learned Lord, Lord Woolf, referred so far supports this. But for all these proposals to fulfil their potential, they must be properly resourced in terms of people, preparation and funding. To improve the effectiveness of community orders in the ways proposed, we will need more people, more money and adequate training. Much will turn—and the noble Lord, Lord Ramsbotham, made an extremely valuable and important point—on the outcome of the Government’s consultation on the probation service. While there may be good reasons for the increasing use of private and voluntary sector providers, as suggested in the consultation paper, it is very important that we do not dissipate or even risk dissipating the expertise that exists within the public

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sector probation service—and I share the worries of many noble Lords in the Committee. For example, there is a proposal in the consultation paper to allow existing probation services to form separate probation trusts to compete with private and voluntary sector providers for work from the commissioning probation trusts. That seems structurally awkward and doomed to fail. We must find a way to retain what is best in the probation service and not lose the talent that we have.