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House of Lords

Tuesday, 13 November 2012.

2.30 pm

Prayers—read by the Lord Bishop of Ripon and Leeds.

Death of a Member: Earl Ferrers


2.36 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death last night of the noble Earl, Lord Ferrers. On behalf of the House, I extend our sincerest condolences to the noble Earl’s family and friends.

Burma: Ethnic Nationalities


2.37 pm

Asked By Baroness Cox

To ask Her Majesty’s Government what is their assessment of recent developments in Burma with regard to the ethnic nationalities, in particular the Rohingya, Kachin and Shan peoples.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, despite the continuing process of political reform taking place in Burma, we are concerned by the reports of serious abuses being committed by government forces and armed ethnic groups against civilians, both in Kachin and across the border in Shan. Inter-communal violence in Rakhine state between the Rohingya and the Rakhine communities has again highlighted our ongoing concerns about the plight of the Rohingya, who are denied citizenship and civil and social rights.

Baroness Cox: My Lords, I thank the Minister for her sympathetic reply. Can she confirm the scale of the suffering caused by the Burmese Government’s policies of violence and oppression to which she has referred? In recent months, many hundreds have been killed, and an estimated 100,000 Kachin, 30,000 Shan and 100,000 Rohingya people have been displaced from their homes to live in appalling conditions in camps or in exile. When I was in Shan state earlier this year one of the Shan leaders said:

“When the lights went on in Rangoon all the world flooded there—and no one stopped to see us in the darkness”.

Will Her Majesty’s Government ensure that, during the forthcoming ministerial visit, the Minister will not only celebrate the lights of relative freedom in Rangoon but also engage with the ethnic peoples trapped in the darkness which still covers much of Burma today?

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Baroness Warsi: My Lords, the noble Baroness raises a very important issue. She will accept that huge progress has been made in Burma but that it is important that that progress is felt by all communities in Burma. It is therefore right that the Government raise these concerns at every opportunity. The Foreign Minister and the Prime Minister raised them earlier this year when they visited Burma. They also specifically met with members of the Rohingya community. Indeed, the Prime Minister and the Foreign Secretary raised our specific concerns about the Rohingya community with President Thein Sein. My honourable friend the Minister of State hopes to visit Rakhine state when he visits Burma in December.

Lord Elton: My Lord, we are accustomed to being encouraged to welcome the new dawn of democracy in Burma but can my noble friend say to what extent the elected members of the Burmese Parliament really represent their electors and to what extent they have any control or influence on the actions and policies of the Burmese Government?

Baroness Warsi: My Lords, we welcome and make much of the progress that has been made in Burma, especially in relation to the emerging of democracy. However, it is right that we regularly raise our concerns about matters where we feel that progress is not being appropriately made. Indeed, on her historic visit to the United Kingdom, these matters were raised with Aung San Suu Kyi.

Baroness Kinnock of Holyhead: My Lords, the UN has described the Rohingya people as among the most persecuted minorities in the world. In view of that reality, why have the UK Government been silent and inactive about the callous treatment by Bangladesh of the desperate Rohingya arriving on their shores? Will HMG now press the Bangladeshi Government to offer at least temporary refuge and access to humanitarian aid instead of sending thousands of Rohingya back to sea and to appalling danger?

Baroness Warsi: My Lords, the Government have been neither silent nor inactive on this matter. In fact, I personally raised it with the Foreign Minister, Dipu Moni, only a few weeks ago. We continue to press this matter. The former Secretary of State for the Department for International Development raised it earlier this year in a meeting with the Prime Minister and the Foreign Minister. We have specifically raised the issue of being allowed to deliver aid to the refugee camps where the Rohingya community live.

Baroness Falkner of Margravine: My Lords, can my noble friend tell the House what resources from the stabilisation unit and the Conflict Pool are being used to provide humanitarian assistance to the three countries —Thailand, Burma and, indeed, Bangladesh—to alleviate the suffering of these people and to plan in the longer term for their rehabilitation and settlement within the three countries?

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Baroness Warsi: The funds currently being provided are not from the Conflict Pool but from humanitarian assistance provided through DfID. We remain the largest bilateral donor to Burma having committed £187 million which has been allocated over a period of four years until 2015. Our aid predominantly focuses on healthcare, responsible and good governance, and improving livelihoods.

Baroness Uddin: My Lords, I understand that my noble friend the Minister has some sympathy with Bangladesh and its management of the vast numbers of refugees entering that country and no doubt she will continue to pressure Bangladesh for a proper solution and an international response to the refugee crisis. Does she accept that ethnic cleansing is in process? Will she ensure that she and the Government use the special relationship which we seem to have with the United States of America to brief her counterparts regarding the upcoming visit of President Obama to that country and on how the Rohingya people are desperately concerned about the indication that that will make to their plight?

Baroness Warsi: I accept that this is a desperate situation for a desperate community which has suffered now for many years. We raise this matter in many of our bilateral discussions both with the European Union and the US and specifically in discussions with Turkey, which has been playing a huge role in humanitarian assistance. The noble Baroness is right that we must continue to press. While we welcome the progress in Burma, I can absolutely assure the House that we continuously raise this matter.

Lord Avebury: When my noble friend met Dipu Moni, did she tell her frankly that closing the borders against the Rohingya refugees is contrary to customary international law? If so, what reply did she receive from the Foreign Minister?

Baroness Warsi: I had a number of discussions with the Foreign Minister both at the United Nations General Assembly ministerial week in New York and thereafter when she was travelling through London. I specifically raised the concern about the Rohingya community in this country, both in the wider community and among the Bangladeshi diaspora community which is crucial to the Bangladeshi Government. I left her with no illusion about the level of our concern.

Baroness Nye: My Lords, have the Government pressed the Burmese Government to allow the High Commission for Human Rights to set up an office in Burma? It would not only provide technical assistance to the Government and civil society groups during this transitional period but also be able to monitor not only the awful situation of the Rohingya but the dreadful rapes of ethnic Kachin and Shan women by the Burmese army.

Baroness Warsi: I am not sure what representations we have made so I shall write to the noble Baroness with a specific response. However, I can assure her

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that our ambassador, Mr Andrew Heyn, has been to Rakhine state twice over the past four weeks, including a visit to Kyaukpyu, the area which Human Rights Watch has been monitoring through satellite imaging.

Justice: Indeterminate Sentences


2.45 pm

Asked By Lord Lloyd of Berwick

To ask Her Majesty’s Government what action they plan to take following the decision by the European Court of Human Rights on 18 September in the case of James v UK that the detention of prisoners serving an Indeterminate Sentence for Public Protection beyond their tariff without access to parole is a breach of their rights under Article 5(1) of the European Convention on Human Rights.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government are still considering whether to appeal against this decision. The Government have three months from the date of the judgment to submit an application to the Grand Chamber which will effectively be appealing the decision.

Lord Lloyd of Berwick: My Lords, the noble Lord will know the figures because he was kind enough to give them to me last night. There are currently 6,000 people serving IPP sentences, 3,500 of whom have already passed their tariff date and are currently waiting to appear before the Parole Board. Of those 3,500, 2,000 have been waiting for more than two years and 350 have been waiting for more than four years. The court has held in no uncertain terms that their detention in these circumstances is arbitrary and therefore unlawful. Does the noble Lord recognise the scale of this continuing disaster? Does he accept that the Government must do something now to get these wretched people out of prison?

Lord McNally: My Lords, the Government have done something. IPPs were abolished by the LASPO Act, but unwinding the system has to be done very carefully. We are not talking about people who are innocent, but people who have been sentenced for long periods for serious crimes. The IPP system was introduced by the previous Government with, I think, a genuine intent to deal with this problem. We are bringing in a more flexible approach and we have both the Parole Board and NOMS working closely on it. However, it is not simply a matter of throwing open the gates of the prison because in some cases we are dealing with very dangerous people, so we must have public protection in mind when deciding how to deal with them.

Lord Wigley: My Lords, does the Minister accept that there could well be implications arising from the James case for the 3,500 prisoners who have passed their tariff that could lead to them claiming compensation against the Government either under tort or under

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Section 8 of the 1998 Act? In those circumstances, do the Government accept that they may have to pay compensation?

Lord McNally: One of the reasons why we are studying the judgment is to make sure that we get this right. There are three very early cases which go back to before the reforms brought in by the previous Administration in 2008 in order to bring in more flexibility. It is interesting to note that the court did not find that IPPs themselves were in breach of the Human Rights Act. The weakness that quickly became apparent was the Catch 22 whereby the prisoners were supposed to carry out certain restorative and rehabilitative programmes that were not available. After 2008, the Government brought in some reforms and we have had further discussions with the Parole Board and NOMS to try to speed them up. But I emphasise again that we are not dealing with innocent people. These are people who have been before a court and found guilty of the crimes which have brought forward this programme. We are trying to manage them out of the system as quickly as possible, but with due care for public safety.

Lord Marks of Henley-on-Thames: My Lords, one of the main grounds for the judgment against the United Kingdom was that there are, as my noble friend has said, insufficient facilities for courses to enable prisoners serving IPP sentences to qualify for release. Can the Minister say what extra rehabilitation facilities are now to be put in place to ensure that such prisoners can be released safely and quickly into the community?

Lord McNally: My Lords, one of the things that we have been discussing with both NOMS and the Parole Board is moving away from a system of box-ticking specific narrow training programmes to a more flexible judgment about whether a particular prisoner is suitable for release. Giving both NOMS and the Parole Board greater flexibility in treating, assessing and managing these prisoners will enable the Parole Board to make a balanced judgment, at the right time, about whether these prisoners should be released.

Lord Dubs: My Lords, does the Minister agree that when these sentences were first brought in, nobody expected that they would apply to more than a very small number of exceptional cases? Since then, they have been used on a wide scale. Does that not cast doubt on the propriety of keeping these people in jail beyond the sentences they would otherwise have had?

Lord McNally: Whether there was a misjudgment or not when IPPs were brought in, the fact is that we have reached the figure that the noble and learned Lord quoted of 6,000, which is far more than was anticipated by the initiators of the Bill. However, we now have to go through a proper process of assessing whether these prisoners, who have been sentenced for serious crimes, are fit for release, always keeping in mind public safety as well as the progress they have made. We have taken on board the fact that, as it was, the system was too rigid and too tick-box and we have

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given it greater flexibility. However, we have to manage release into the community; we cannot just open the prison doors.

Lord Faulks: My Lords, the decision in the James case was another reversal by the European court of decisions about our domestic legislation reached by the Court of Appeal and the House of Lords. Does the Minister agree that, despite the Brighton declaration, there seems to be very little sign of the European court affording us the margin of appreciation that it is supposed to do? In the light of this case, and another recent case that would have attracted the House’s attention, is it not time to consider cutting the links with Strasbourg?

Lord McNally: I would very much regret that. We get enormous benefits from being part of a wider regime of human rights. However, I am equally proud of the reforms that were brought through by the Brighton declaration. I would also say that we have not exhausted the Strasbourg system with this case and are considering whether to appeal. As I reminded the noble and learned Lord, the actual judgment was a very narrow one that did not disown IPPs or say that they breached the Human Rights Act.

Schools: Parenthood Education


2.53 pm

Asked by Lord Northbourne

To ask Her Majesty’s Government what steps they are taking to ensure that secondary school children learn about responsibilities of parenthood.

The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, secondary school pupils can learn about the responsibilities of parenthood in non-statutory personal, social, health and economic education. Schools have the flexibility to include the teaching of parenting skills as part of PSHE education, based on local circumstances and the needs of their pupils. A review of PSHE education is looking at how to support schools to improve the quality of PSHE teaching.

Lord Northbourne: I am most grateful to the noble Lord for that Answer. However, is the Minister aware—I am sure he is—that Ofsted’s recent reports show that in many, if not most, secondary schools, PSHE is taught, if at all, by teachers with little interest and no training in the subject? Will the Government take action to ensure that the nation’s secondary schools do more to warn young people about the significant and often onerous responsibilities attached to becoming a teenage parent?

Lord Hill of Oareford: My Lords, that same Ofsted subject survey in 2010 showed that about three-quarters of PSHE provided by schools was good or outstanding.

Lord Northbourne: That figure includes primary schools.

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Lord Hill of Oareford: I take the noble Lord’s underlying point and the importance of that. Those are the issues that the review is looking into, in terms of the content of what is taught, the quality of the teaching and the support that goes to teachers.

Lord Howe of Aberavon: My Lords, would my noble friend agree that the objective in the mind of the noble Lord, Lord Northbourne, is even more likely to be fulfilled if school governing bodies included at least some members who are parents of pupils in the school?

Lord Hill of Oareford: I think that the contribution that parents make to school governing bodies is varied. The connection between parents and schools is an important one, but that goes beyond the direct parental role and into the whole provision of education.

Baroness Hughes of Stretford: My Lords, the latest figures for teenage pregnancy rates—that is, for the year 2010—were the lowest for 40 years. That was driven by the Labour Government’s strategy centrally, delivered locally by teenage pregnancy co-ordinators. However, the coalition Government have disbanded the very small teenage pregnancy unit in the Minister’s department, which led on that. A third of the teenage pregnancy co-ordinators have been cut, many in high-risk areas. Do the Government have any concerns about losing the considerable and very difficult progress made in turning this intractable and historic situation around? What action are they taking to ensure that the downward trend in teenage conceptions continues, including, but not exclusively, the provision of sex and relationship education in schools?

Lord Hill of Oareford: The noble Baroness is right that the trend has been falling. As she says, the figure is at the lowest level since 1969. That is very welcome and I recognise that it is obviously in part down to the work of the previous Government. It is obviously important that the work delivered through PSHE and sex and relationship education is carried forward. That is something we are reviewing as part of that broader review to which I have already referred. Also, on the delivery of these services, and the progress that has been made on bringing down teenage pregnancy rates by local authorities, the Government think that the local authority is the lead on this. There is a quite a variation between different local authorities across the country but I am certainly in agreement with the noble Baroness that we need to make sure that that work continues.

Baroness Walmsley: My Lords, will my noble friend look at the work being done by David Lammy MP with teenage fathers from the Afro-Caribbean community, with a view to learning whatever lessons are appropriate from that work? Is this not an area where we ought to be able to work cross-party?

Lord Hill of Oareford: I agree. I would be keen to know more about the work that Mr Lammy is taking forward.

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The Lord Bishop of Ripon and Leeds: My Lords, will the Government encourage the teaching of financial literacy as an important part of parenting, and in particular stress that while child benefit is of immense value to those with children, it would be ludicrous to suppose that having children to obtain that benefit made any financial let alone moral sense?

Lord Hill of Oareford: I agree very much with the right reverend Prelate on his second point. On his first point, financial education is important. As he will know, it is delivered as one of the strands of PSHE education. Also, as part of trying to improve financial literacy, the Government could do work on things such as basic maths. There is a correlation: in well run schools, thriving pupils who have ambition and aspiration are less likely to get into the kind of difficulty that we have been talking about. I very much agree with the right reverend Prelate.

The Earl of Listowel: My Lords, does the Minister share my concern that many of our schoolchildren will not experience stable and enduring relationships at home and that they may see many adults pass through their lives? If he does, is it not therefore important to ensure that schools can model for children what an enduring and reliable relationship is? Teachers can be equipped to do that through good training in child development, consultation such as that offered by the charity Place2Be and others, and the importance given to vertical tutor groups in secondary schools. These all support children’s ability to know about enduring and reliable relationships and be better parents themselves. I hope the Minister will agree.

Lord Hill of Oareford: I very much agree with the noble Earl about the importance of trying to help children to understand the importance of stability and stable relationships. I take his point that unfortunately too many children suffer from transient relationships at home. I know that many schools do extraordinarily good work to give children more order, discipline, shape and structure, which helps to replicate some of those things that, sadly, they do not get from their home life.

Nigeria: Violence


3 pm

Asked By Baroness Berridge

To ask Her Majesty’s Government what is their assessment of the current situation in Northern Nigeria in the light of ongoing incidents of violence in Kaduna and Maiduguri.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, we have strongly condemned the recent violence in northern Nigeria,

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including that perpetuated by the extremists known as Boko Haram, which has afflicted all communities in Nigeria. We are also deeply concerned about the allegations of human rights abuses being perpetuated by members of the Nigerian security services. The British Government are working with the Nigerian Government and international partners to tackle the situation.

Baroness Berridge: I thank my noble friend for such a comprehensive answer. The deaths in northern Nigeria are not just a tragedy for Nigeria but could be a cause of regional instability. Will my noble friend please outline when these issues were last raised directly with President Goodluck Jonathan, and, if she has not done so already, will she host a round-table meeting to talk about our Government’s work on this issue with representatives of the diaspora within the UK, for whom this is a key concern? It is often the relatives of British citizens who are dying in northern Nigeria.

Baroness Warsi: I can tell my noble friend that the Prime Minister raised these matters when he met President Jonathan in February this year. The UK has a strong relationship with Nigeria on counterterrorism policy, focusing especially on extremism. Just over a week ago, our high commissioner in Abuja met senior officials at the Nigerian Ministry of Foreign Affairs and discussed the specific violence that we saw recently in northern Nigeria, including the most recent attack in Kaduna city. Senior officials met on 25 October to discuss the ongoing conflict.

Lord Boateng: My Lords, religious freedom is a human right and one that, I fear, is abused in relation to Christians the world over. We hear a great deal about Islamophobia; we hear much less about Christianophobia. The noble Baroness made an extremely successful visit recently to Geneva to address the UN Human Rights Council. Will she raise the issue of the persecution of Christians the world over at that council?

Baroness Warsi: The noble Lord raises an important issue. He will be aware that human rights is part of my portfolio and freedom of religion is a big part of that. It is something that I intend to put a huge amount of focus on, especially discrimination towards religious communities around the world. Specifically in relation to Nigeria, it is important to remember that Boko Haram comes out of a group known as JAS. That group, including Boko Haram, has targeted Muslims as well as Christians.

The Lord Bishop of Durham: My Lords—

Noble Lords: Hear, hear.

The Lord Bishop of Durham: I thank noble Lords. I was in Kaduna less than a month ago. Will the Minister confirm what actions are being taken to support religious leaders, such as Bishop Fearon in Kaduna and the Sultan of Sokoto, and leaders from both communities in their work? Do they have access

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to funds provided through DfID in the major programme of conflict management and mitigation that is going on at the moment?

Baroness Warsi: I cannot answer the specific point in relation to the individuals that the right reverend Prelate refers to, but I can say that we are funding a huge amount of work through DfID on conflict resolution, and specifically trying to create the right forums for interfaith discussions, including “Enduring Peace in Jos: Arresting the Cycle of Violent Conflict”. We are also involved in a programme to train youth peace ambassadors from both the Christian and Muslim communities. We are providing £800,000 over three years for work towards creating spaces where the different communities can come together to discuss some of these matters. We have also established the Nigeria stability and reconciliation programme, which specifically aims to address the grievances that can lead to extremism and terrorism.

Lord Triesman: My Lords, north-south relations in Nigeria are often very complex and can seldom be accurately described in simplistic terms as merely religious or tribal divisions—as the Minister has said, problems arise on both sides. Boko Haram’s objective is plainly contrary to any kind of modern view of democracy, freedom of belief or social inclusion—or indeed to the objectives of the Harare principles. What role might the Commonwealth have in assisting Nigeria to develop as a modern and inclusive country? Should we not encourage a Commonwealth Secretariat assessment, since that will be seen to be far less colonial and far more inclusive in global terms?

Baroness Warsi: The noble Lord is right that the conflict in Nigeria, which spans many decades, has many facets to it, including a religious facet and many ethnic tensions. His is an interesting idea in relation to the Commonwealth’s role. He will be aware that we already have discussions with both the African Union and the European Union in relation to joint work, but it is a matter that I will take back.

Lord Chidgey: Does my noble friend agree with the Bishop of Sokoto, Matthew Hassan Kukah, that the crisis in the north should not be seen as Christian against Muslim or north against south, but more as one of justice and fairness, which calls for a modern, quality education to be provided for girls as well as boys in the north and, most of all, sweeping reform to a demoralised and corrupt police force where absenteeism is now running at more than 50%?

Baroness Warsi: The noble Lord raises an important issue and I would add to that the voice of the Sultan of Sokoto, a traditional leader among Nigerian Muslims. He said that this group, Boko Haram, was “an embarrassment to Islam”. It is heartening to hear people such as Dr Aliyu, the Niger state governor and the chair of the Northern Governors’ Forum—again, a Muslim—basically condemning Boko Haram and saying that it did not represent Islam. Nearer here, in the United Kingdom, the Muslim Council of Britain has also come out and condemned it.

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Civil Aviation Bill

Civil Aviation Bill

Third Reading

3.07 pm

Bill passed and returned to the Commons with amendments.

NHS Commissioning Board: Mandate


3.08 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I shall now repeat a Statement given in another place earlier today by my right honourable friend the Secretary of State for Health on the subject of the mandate to the NHS Commissioning Board. The Statement is as follows.

“With permission, Mr Speaker, I would like to make a Statement regarding the publication of the Government’s first mandate to the NHS Commissioning Board. The NHS is this country’s most precious creation. We are all immensely proud of the NHS and the people who make it what it is: a service that last year delivered half a million more outpatient appointments, nearly 1 million more A&E attendances and 1.5 million more diagnostic tests than the year that this Government came into office, and is doing so while meeting waiting time targets, reducing hospital-acquired infections and virtually eliminating mixed-sex wards. The essence of the NHS is its values: universal and comprehensive healthcare that is free and based on need and not ability to pay.

Today, I am proud to publish the first ever mandate to the NHS Commissioning Board. From now on, Ministers will set the priorities for the NHS but, for the first time, local doctors and clinical staff will have the operational freedom to implement those priorities using their own judgment as to the best way to improve health outcomes for the people they look after. That independence comes with a responsibility to work with colleagues in local authorities and beyond, and to engage with local communities to create a genuinely integrated system across health and social care that is built around the needs of individual people.

This mandate makes clear my responsibility as Secretary of State for Health to uphold and defend the enduring values that make the NHS part of what it is to be British. It also sets out my priorities for the NHS Commissioning Board over the next two years and beyond, linked closely to the NHS outcomes framework, the latest version of which I am also publishing today.

The priorities set out in the mandate closely reflect the four key priorities that I have identified to Parliament as my own as Health Secretary. Let me take each in turn. My first priority is to reduce avoidable mortality rates for the major killer diseases where, despite increases in life expectancy, our survival rates are still below the European average in too many areas. If our mortality rates were level with the best in Europe, we could save as many as 20,000 lives every year; 20,000 personal tragedies that could be avoided but are not.

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It cannot be right that we are below average for cancer survival rates; that for respiratory diseases we are the worst in the EU 15; and that our performance on liver disease is getting worse, not better. So today I call on the NHS Commissioning Board, working with Public Health England, local government, local commissioning groups and others to begin a concerted effort to bring down avoidable mortality rates in this country.

The mandate asks the NHS Commissioning Board to make measurable progress to improve early diagnosis, giving more people quicker access to the right drugs and treatment when they need it; to reduce the wide and unacceptable variation between different parts of the country, both in terms of inequality of health outcomes and variability of performance by NHS trusts; and to support a renewed focus on prevention—working with local authority partners to help people to quit smoking, drink less, eat better and exercise more.

My second priority is to build a health and care system where the quality of a person’s care is valued as highly as the quality of their treatment. When we place ourselves in the hands of others, we should be confident that we will be treated well, with our dignity respected and that this will be the case regardless of our age or mental state, or whether we are in a hospital, a care home or our own home.

For most people, most of the time, this is already the case. But too often it is not. The appalling revelations from places like Mid Staffordshire and Winterbourne View bring home the desperate need for change. So we must go beyond the enforcement of minimum standards. We must raise our game so that the NHS is recognised globally for its commitment to the highest standards of care for all, just as it is recognised for the highest standards of treatment for all.

The mandate asks the NHS Commissioning Board to ensure that local GP-led commissioning groups work with local authorities and others so that vulnerable people, particularly those with dementia, learning disabilities and autism, receive safe, appropriate, high quality care. The mandate also asks the board to improve standards of care during pregnancy and in the early years of children’s lives. This will include offering women the greatest possible choice over how they give birth, giving every woman a named midwife, responsible for them both before and after their birth, and by reducing the incidence and impact of postnatal depression through early diagnosis and better intervention and support.

The mandate asks the board to measure and understand how people really feel about their care through the new “friends and family” test—asking patients whether they would recommend the care that they receive to their friends or family. This test will cover hospital and maternity services in 2013, with other parts of the NHS following soon after.

It also asks the board to drive up standards of care by championing a transparency revolution within the NHS. This will make us the first country in the world to publish comparative information on performance throughout the healthcare system, including between clinical commissioning groups, local councils, providers of care and consultant-led teams. Mental health, which

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has long been the poor relation, must have parity with physical health. This mandate asks the board to make clear progress in rectifying this, particularly by looking at waiting times and by rolling out the programme of improved access to psychological therapies.

My third priority is to dramatically improve care for the one-third of people in England who live with a long-term condition, such as asthma, diabetes or epilepsy. As a group, they account for more than half of GP appointments and nearly three-quarters of hospital admissions. This has a huge impact on the individuals concerned, an impact that can be compounded by the way that they are dealt with by the NHS. We need to do much better. So this mandate asks the NHS Commissioning Board to help those who rely heavily on the NHS by harnessing the power of the revolution in technology. Labour’s NHS IT projects failed, wasting billions, but we must not allow that failure to blind us to how technology can transform treatment and care throughout the system.

So today I am asking the board to make sure that by 2015 all patients in England will be able to access their GP records online. In at least parts of the country, those records will be integrated with other medical records across the health and social care system, so that a single record can follow a patient seamlessly from ambulance to hospital to GP clinic and to their own home.

By 2015 everyone will be able to book GP appointments and order repeat prescriptions online, as well as contact their GP by e-mail. Significant progress will also have been made towards ensuring that 3 million people with long-term conditions benefit from telehealth and telecare by 2017. With respect to people with long-term conditions, the mandate also asks the NHS Commissioning Board to ensure that by 2015 more people have the knowledge and skills to control their own care and that carers have the information and advice they need about the support available to them, including respite care.

My final priority is care for older people, specifically for those with dementia. Already one in three people over the age of 65 live with dementia, but, shockingly, even though the right medicines can make a huge difference to people’s quality of life and those of their families, we diagnose fewer than half of those with the condition. I want the diagnosis, treatment and care for people with dementia to be world-leading, so the mandate asks the NHS Commissioning Board to make significant progress in improving dementia diagnosis rates and to ensure that the best treatment and care are available to everyone wherever they live. We also want to see progress in ensuring that hospitals and, indeed, all NHS organisations make significant progress in becoming dementia-aware and dementia-friendly environments.

The mandate also covers other important areas of NHS performance, including research, partnership working, the Armed Forces covenant, and better health services for those in prison, especially at the point when people are integrated back into the community.

The mandate also sets the NHS Commissioning Board’s annual revenue budget. For 2013-14, this is £95.6 billion, with a capital budget of £200 million.

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An important objective for the board is therefore to ensure good financial management, as well as unprecedented and sustainable improvements in value for money across the NHS.

We are the first country in the world to set out our ambitions for our health service in a short, concise document centred around patients. Its clarity and brevity will help to bring accountability, transparency and stability to the NHS. The previous Government sent endless instructions to SHAs and PCTs, constantly bombarding them with new targets, new directions and new priorities and drowning the NHS in red tape and bureaucracy. In stark contrast, this mandate is just 28 pages long. It signals the end of top-down political micro-management of the NHS, an approach that failed to get the best treatment for patients and the best value for taxpayers.

This mandate demands much closer integration between secondary and primary care and between the NHS and social care. It requires a new style of leadership from the NHS, with local doctors and nurses free to innovate in the way in which they commission care. I look to the board to develop their leadership skills so that they can discharge their duties in the best interests of their patients. The mandate will make it easier for Ministers to hold the health and care system to account, and it will make it easier for Parliament to hold Ministers to account for their stewardship of the system. This is a historic step for the NHS, and I commend this Statement to the House”.

My Lords, that concludes this Statement.

3.20 pm

Lord Hunt of Kings Heath: My Lords, first, I thank the Minister for repeating the Statement and for the briefing that he gave me earlier today. I also refer noble Lords to my interest in health, contained in the register.

This morning I had the great privilege of hosting a ministerial visit to Birmingham Heartlands Hospital by the Minister’s honourable friend, Mr Norman Lamb. He came to see the Birmingham and Solihull Rapid Assessment, Interface and Discharge service—RAID—which essentially is a partnership that has placed mental health professionals inside the emergency department of my local hospital to give people a holistic physical and mental health response. In that context, I very much welcome the emphasis in the mandate on mental health priority and the promise to implement the amendment that we tabled in your Lordships’ House in relation to parity of esteem between physical and mental health.

But—and there is a but—the problem at the moment in the National Health Service is that mental health has been first in line for reductions in expenditure. Is the Minister in a position to confirm that mental health spending was cut in real terms last year, and to say what the Government intend to do to reverse that? Will he also confirm, in relation to mental health, that he is determined to see that primary care plays its role and that we will see more mental health specialists working in teams with GPs, nurses and carers? Will personal health budgets be extended to enable patients with mental health issues to select the best combination

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of services and treatments for themselves? Furthermore, does the Minister agree that good mental health does not start in the hospital or treatment room but in our workplaces, schools and communities? For example, poor mental health in the workplace costs the UK an estimated £26 billion a year. Does the Minister accept that this requires a cross-government approach, and is he as disappointed as I am at the news of the apparent demise of the Cabinet Sub-Committee on Public Health—due, it is said, to a lack of interest from other government departments?

The mandate contains a number of welcome references to helping to improve people’s health. I would be grateful if the Minister could tell me what the Government are doing to reawaken interest across Whitehall. The whole architecture of the NHS that the Minister brought to your Lordships’ House in the Health and Social Care Act was about the Department of Health passing over day-to-day concerns about the NHS to the national Commissioning Board, giving itself time to work on wider public health issues—and, I have always assumed, to seek to influence the rest of Whitehall. Would he accept that the demise of this Cabinet sub-committee is a very disappointing signal?

I have three fundamental questions concerning the mandate, which relate to funding, the measurement of performance and the role of Ministers. As the Minister has intimated, this is a multiyear document, setting objectives for the period April 2013 to March 2015 but subject to revision at the end of each year—or, in other special circumstances, including a general election. We can only hope that we might be coming back to this mandate sooner than the Government perhaps would wish. I have noted that the mandate has been restructured around the outcomes framework, which is to be welcomed, and that some of the specific levels of ambition that were placed in the consultation on the mandate have now been replaced by what the Minister described as stretched levels of ambition. Has the mandate been costed out? I could not help but contrast the optimistic claims of Ministers with the everyday financial realities of life in the NHS. Is the mandate a realistic document about what the public can expect to happen or is it little more than a Christmas shopping list which is unlikely to be realised in full?

The noble Earl will have seen the RCN’s warning today of thousands of job losses among clinical staff. That appears to be the reality of life in the NHS. Emergency services are under pressure and a toxic mix of reorganisation and real-terms cuts risks plunging the NHS into a very difficult situation. There has been a great deal of publicity and concern about the decision of the BBC in relation to the retirement package, as it were, of the former director-general. However, the Government stand accused of wasting a full £1 billion on redundancy packages for health service managers as a result of the recent reforms. That money could have been spent on patient care.

I note that most of the time the Statement seeks to create a consensus but every so often it descends into political rhetoric, which I regret. I was pained to hear the noble Earl say that the previous Government sent endless instructions to the health service and constantly bombarded it with new targets. However, those targets,

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which focused on reducing waiting times and improving clinical performance, were absolutely pivotal to improving the performance of the National Health Service. We will, of course, always find ways to make further improvements, but there is no doubt whatever that between 1997 and 2010 the NHS was vastly improved.

The new architecture which the Government have set in place feels very bureaucratic to those working in the National Health Service. Instead of clear departmental direction, three major agencies have been created, which often row in different directions. Monitor, the economic regulator, has conflicting roles. It is unsure about how to incentivise integration but is stuck with the mantra of the market and enforced competition. The CQC lacks confidence and credibility and awaits the Francis verdict, although the appointment of the new chief executive, David Behan, is a very good step forward. The national Commissioning Board is all-powerful and talks the talk of devolution but I am afraid to report that it displays some centralist tendencies. Indeed, I have heard that “aggressive commissioning” is the buzzword around the national Commissioning Board. I certainly hope that it can do better than that. I do not think that the frail elderly, who comprise the patient group that makes the most demands on the health service, need aggressive commissioning. They need an integrationist approach whereby the architecture and the key national players—the department, Monitor, the CQC and the NCB—work together to get the conditions right for an integrationist approach.

I urge the national Commissioning Board to focus its attention on primary care, community care and adult social care. Does the noble Earl agree with that? We are seeing in the health service the development of seven-day working in acute hospitals. I welcome the mandate’s emphasis on mental health playing its full part, but it requires the same commitment from GPs, community services and adult social services. The contrast between what is happening in some parts of the NHS with the desperate struggle that local authorities are facing to keep council social care services for adults going could not be wider. Indeed, millions of people face higher care charges as councils are forced to put up the cost of meals on wheels and other services. The response from local government to the need for a seven-day service is extremely patchy and very worrying.

I would like also to refer to the comment made in the Statement about the performance of the NHS in relation to certain clinical services. If the Government are so concerned, why on earth are they proceeding with cuts to the cancer, heart and stroke networks? Surely that needs to be reconsidered.

Turning to the performance of the national Commissioning Board and how it is to be measured, the mandate contains a long list of improvement areas —as they are called—and says that it is the Government’s ambition,

“for England to become one of the most successful countries in Europe at preventing premature deaths, and our objective for the NHS Commissioning Board is to make measurable progress towards this outcome by 2016”.

What do the Government mean by “measurable progress”? Are there going to be some numbers or is this going to be a vague promise by the national Commissioning

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Board? What will happen if the national Commissioning Board does not meet those objectives and ambitions? Will there be any sanction placed on it?

The noble Earl repeated the mantra that the NHS is being liberated from day-to-day, top-down interference in its operational management. The mandate seems to have issued an uncosted wish list and is hoping to contract out responsibility to the national Commissioning Board, but it does not absolve Ministers of their accountability for giving Parliament as much information as possible and, ultimately, accepting their responsibility to Parliament for the performance of this great public service.

3.31 pm

Earl Howe: My Lords, I am grateful to the noble Lord for the welcome he was able to give to aspects of the mandate, not least in the area of mental health where, as he will have noted, the original version of the mandate has been considerably strengthened in a number of places to emphasise the parity of mental health with physical health in a number of ways. I am glad he thinks that that is a positive step and I agree that it is a necessary one if we are to achieve the higher standards in the care of those with mental health problems which we all want to see.

The noble Lord also welcomed the focus on outcomes and the fact that the mandate has been restructured around the five domains of the outcomes framework. We thought it was logical and sensible to hold the board to account for objectives which related directly to indicators within the outcomes framework. That has been warmly welcomed by the board itself.

The noble Lord asked a number of specific questions. First, on personal budgets in mental health, I can tell him that, subject to the results of the current trials in personal health budgets which we expect to announce very soon, we expect that mental health will be one of the areas where patients will be able to exercise direct control over the services they receive. As the noble Lord well knows, patient empowerment in the area of mental health is, in itself, therapeutic. If we can encourage that, we should.

The noble Lord also mentioned mental health in the workplace and I completely agree with what he said about that. I recently mentioned, in your Lordships’ House, the network which Dame Carol Black and I chair in the department looking at health in the workplace and the pledges that have been devised and which businesses can sign up to. One of those pledges indeed relates to mental health. We hope that we can recruit willing enthusiasts from among the business community to sign up to as many of those pledges as they can.

The noble Lord referred to public health, and I agree with him that it is not a matter simply for the department; all government departments need to engage in it. I should say to him that the creation of Public Health England will provide an immediate opportunity for that body to work with other government departments, but also much more widely to ensure that we genuinely have a joined-up approach to public health objectives. He will know that the public health outcomes framework, which has been drawn up to align itself as far as

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possible with the NHS outcomes framework, will be a powerful driver for improvement across the field of public health.

The noble Lord characterised the mandate as an uncosted wish list. I can tell him that it has been costed, and the NHS Commissioning Board itself was fully consulted before the mandate was drawn up, because it would clearly not be in anyone’s interests to task the board with delivering the unachievable. The board is aware that it will receive real-terms increases in the budget for the NHS—increases the NHS has received during every year of this Parliament. He referred to cuts. I want to emphasise to him that while we are aware that there are significant constraints at a local level, particularly at provider level, the overall budget to the NHS is not being cut; it is increasing, year by year.

The redundancy payments that unfortunately have been necessary of course represent ongoing annual savings from now on. It is always painful to make people redundant, but we deemed that it was absolutely necessary if we were to retain a sustainable health service. Every pound that we save will go straight back into front-line care.

The noble Lord mentioned the performance of the previous Government, and I am the first to pay tribute to the improvement in the health service that took place under that Administration—not least in waiting times. It is why we have explicitly said in the mandate that waiting times continue to matter. They matter to patients, they are clinically a valid measure of patient experience, and we have no intention of abandoning that metric.

The noble Lord also spoke about enforced competition. I should correct him on that because, as he will know from our debates on the Health and Social Care Bill, we believe that competition can sometimes be a tool for commissioners. We do not believe that it should be shoved down anybody’s throat. Competition, as Sir David Nicholson pointed out the other day, should be regarded as a rifle shot, rather than a carpet-bombing exercise. It should be used only where it is in the interests of patients, which is why the first duty of Monitor, the economic regulator of the health service, is to serve the interests of patients.

The noble Lord referred to partnership working, and I was absolutely in agreement with him that there needs to be partnership, not only at a local level between GPs, social care, secondary care providers, but at the level of the arm’s-length bodies. Chapter 7.3 of the mandate covers the latter aspect comprehensively. However, in Chapter 2, we also place great stress on integration of services, which was the subject of a number of debates in your Lordships’ House during the passage of the Bill. Primary care is covered in Chapter 9.2, which is one of the main areas that the board will be commissioning.

The noble Lord asked me about networks, which we debated a few days ago. They can take various forms. The strategic clinical networks, about which he asked me in his Oral Question the other day, embrace, as he knows, four major clinical areas where we believe that considerable change is required if we are to see services improved to the extent that they should be. However, that does not preclude other networks forming

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at a local level—for example, at provider level—to ensure that services are joined up. I am sure that we shall encourage those networks, wherever they are appropriate, but we are not mandating them.

The noble Lord asked me about measurable progress. Today, we are publishing an updated version of the NHS outcomes framework, which includes an appendix that sets out the detailed definitions for the majority of indicators. We will have robust metrics which we shall be able to use to measure health outcomes. Over the past few months, the Health and Social Care Information Centre has been publishing many of the data as they have become available. Publishing data for the indicators will, in itself, show whether outcomes are improving. In order to interpret progress, we will work with the NHS Commissioning Board and experts to develop a methodology for measuring progress. There is time enough to do that and I will happily keep the noble Lord informed as that work rolls forward.

Baroness Northover: My Lords, perhaps I may remind noble Lords that contributions and questions should be brief so that as many noble Lords as possible can participate. I also remind noble Lords that contributions will come from around the House so Members other than those in the Labour Party need to speak now. Maybe we could hear from the Cross Benches.

3.41 pm

Lord Walton of Detchant: My Lords, I shall speak briefly, not least because before I knew about this Statement, I made an appointment to meet some major professional visitors at four o’clock this afternoon. I make my apologies to the noble Earl.

The general terms of this mandate are to be greatly welcomed. Its structure is attractive and its relationship to the future of the outcomes framework is very welcome indeed. I welcome the concentration on long-term conditions and their management, although it is important to mention that, whereas diabetes, hypertension and mental health are highlighted in the document, there are many other long-term conditions that need special attention, many of them neurological, such as Parkinson’s disease, multiple sclerosis, neuro-muscular diseases, and so on. I also welcome the emphasis on innovation.

My one major question relates to the very paragraph to which the noble Lord referred. Paragraph 9.2 states:

“The NHS Commissioning Board will be directly commissioning NHS services provided by GPs, dentists, community pharmacists and community opticians; specialised care; health services for people in custody; and military health”.

There are the two words, “specialised care”. We have had discussions about this before and my understanding is that the NHS Commissioning Board will commission directly highly specialised services but more general specialised services will be commissioned by the clinical commissioning groups. Indeed, paragraph 9.3 states:

“The Department will hold the Board to account for the quality of its direct commissioning, and how well it is working with clinical commissioners … An objective is to ensure that, whether NHS care is commissioned nationally by the Board or locally by clinical commissioning groups, the results—the quality and value of the services—should be measured”.

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Therefore, is there not an incompatibility between these two paragraphs, one saying that all care will be commissioned by the NHS Commissioning Board, and the next paragraph modifying and qualifying that? I think that is a matter for clarification as the mandate goes forward.

Earl Howe: My Lords, I am grateful to the noble Lord for his welcome to the overall structure of the mandate and its content. I do not believe that there is an inconsistency between those two paragraphs. We have had a number of debates about specialised healthcare. I can confirm to him what I have said in the past: it will be the responsibility of the NHS Commissioning Board to commission services in relation to highly specialised conditions and, on top of that, those specialised conditions that are currently commissioned by the regional specialised commissioning groups. It is services for not only very rare conditions but slightly less rare conditions that the board will commission. That is a positive step that has been welcomed by the specialised healthcare community. We will spell out in regulations exactly what conditions are specialised conditions.

Paragraph 9.3 states that the way in which the board is held to account should be directly analogous to the way in which other commissioners in the health service are held to account. In other words, the board cannot expect not to be held to account by the department in a similar fashion. I hope that with that clarification, the noble Lord will be reassured.

Baroness Jolly: My Lords, I note that the mandate no longer sets quantifiable levels of ambition. The Minister explained how progress might be measured. There will be overarching indicators and improvement areas that will all match or mirror the five parts of the outcomes framework. Will my noble friend the Minister explain to the House how frequently progress is likely to be reported, and how it will be monitored by parliamentarians?

Earl Howe: I am grateful to my noble friend. The board will have to publish its progress against the objectives in the mandate. The Government will publish an annual assessment of its progress. We have set an objective for the board to demonstrate progress against all the indicators in the NHS outcomes framework. We will use a range of evidence to assess the board’s performance, including asking CCGs and other stakeholders for their feedback. This will be important, because it will provide the board and everybody else with a much more rounded view of how the health service is doing. The information will be publicly available, so everyone will be able to judge for themselves whether the NHS has achieved these stretching goals. In year, Ministers will hold the board to account. In particular, the Secretary of State will hold formal accountability meetings with the chair of the board every two months. Minutes of those meetings will be published. The meetings will be an opportunity to review performance and discuss issues as they arise, and as is right and proper.

Lord Warner: My Lords, there is much to welcome in this mandate, especially the points that the Minister made about mental health. Perhaps I may gently remind

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him that he and his Government will be able to send this patient information whizzing round the system and the country only as a result of the much maligned national spine that the previous Government put in place, along with a central contract. It is worth bearing in mind a little history.

The Minister said that this had been a masterly and costed exercise and that the NHS Commissioning Board had said that it could deliver the mandate within the finances available. Will he confirm that this means that the NHS Commissioning Board’s chief executive has accepted that he will have to deliver, through his new role, £20 billion in savings over four years—the so-called Nicholson challenge? We would like to know whether the Nicholson challenge includes that money.

Finally, I will follow up the point about specialist and specialised services made by the noble Lord, Lord Walton. The Minister may recall that in July the new president of the Academy of Medical Royal Colleges make the powerful point that we have far too many 24/7 acute centres. Will it be part of the Commissioning Board’s responsibility, with the money it uses to directly commission specialist and specialised services, to start to make progress on Professor Terence Stephenson’s suggestions that we need fewer specialised centres of a larger size?

Earl Howe: My Lords, I pay tribute to the noble Lord’s role in the NHS IT programme. He is right: we have a great deal to be thankful for in much of the IT that was rolled out under the previous Administration. It failed at a local level rather than a national level—it perhaps failed for honourable reasons—but that is history now and we need to move forward and find other ways of delivering the benefits which his Government identified and we are determined should be delivered at provider and commissioning levels. That is why there is emphasis in the mandate, in chapter 2.6, around technology because it is important that we have inter-operative systems at every level.

The noble Lord asked about the costing of the mandate and, in particular, the quality, innovation, productivity and prevention programme—or the Nicholson challenge as it is sometimes known. We refer to that on at least two occasions in the mandate, at chapter 6.4 and chapter 8.1. The NHS Commissioning Board has confirmed that it will continue to implement the Nicholson challenge and we will work with it to ensure that that happens.

As regards service configuration, the noble Lord will note that in chapter 3.4 we draw attention to that issue and, in particular, to the four tests that need to be met before service configuration can be considered acceptable. Those four tests must be determined locally and there must be a clinical buy-in to any reconfiguration of services. That is one of the most important features of the framework surrounding that area. We may well see fewer centres for a number of conditions but, if we do, it will not be through a top-down edict but because doctors and other health professionals think that it is the right thing to do for patients.

Baroness Cumberlege: My Lords—

Lord Kakkar: My Lords—

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Baroness Northover: My Lords, it is the turn of the Conservatives.

Lord Hunt of Kings Heath: My Lords, there was an agreement between the usual channels that it is the Government Benches, then the Opposition and then the Cross Benches. The noble Baroness is seeking to reinterpret what has already been agreed.

Baroness Northover: It is the turn of the Conservatives.

Baroness Cumberlege: My Lords, I, too, congratulate the Government on the mandate. When we were debating the Bill, I requested that the mandate should be short, precise and well-focused, and it is all of those things. I particularly welcome the focus on the importance given to improving standards in maternity services. The mother’s experience and the start of life are very important and have a huge impact on the long-term well-being of children.

I wish to link the outcomes framework with the mandate. On the outcomes framework, at page 11 under “Trauma” we are told that this is an area for further improvement. It states:

“As part of the development of the placeholder ...‘improving recovery from injuries and trauma’ the indicator has now been defined as ‘Proportion of people who recover from major trauma’”.

That links very much with what my noble friend was saying earlier about expertise. The point I want to make on the mandate is that we are told that the objectives in the mandate can be realised only through local empowerment. The board’s role in the new system will require it to consider how best to balance different ways of enabling local and national delivery. These may include the duties and capabilities for engaging and mobilising patients, professionals and communities in the shaping of local services.

My concern is on A&E and the emergency services. With the NHS Commissioning Board having now appointed Tim Kelsey to look at communications, how can we get public leadership to understand that expertise in certain areas is very important for survival? The footballer Fabrice Muamba collapsed on the football field and passed several A&E departments to get to the one that saved his life because the expertise was there. Is there a requirement in the mandate that there should be a mobilising and further education of the community so that it understands what expertise is needed in order to save lives?

Earl Howe: My noble friend makes a series of extremely important points and I agree with everything she said about maternity services. Emergency services will be commissioned at a local level by clinical commissioning groups but that cannot be the end of the story. She rightly implied that paramedics and trauma care doctors require skills in sometimes very sophisticated techniques of maintaining life at the scene of an accident, for example, and hospital procedures. These skills must be maintained and improved. The short answer to her question is quite consciously missing from this mandate. This is the need for Health Education England to work very closely with the board because the Centre for Workforce Intelligence and Health Education England will have to ensure that we have not only the right numbers in the NHS workforce but those with the right skills and the right level of skills. As

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she rightly said, we also need to educate the public that the health service does not consist of a series of buildings; it consists of a network of services. We will have advanced considerably if the public can understand rather better than they generally do that the continuation and improvement of services matter, rather than bricks and mortar.

Lord Kakkar: My Lords, I declare my interest as Professor of Surgery at University College London Hospitals NHS Foundation Trust. I very much welcome the noble Earl’s indication that the five objectives of the mandate are now clearly linked to the five parts of the outcomes framework. However, successful and meaningful commissioning decisions will critically place intense focus on the development of metrics in the outcomes framework. Local commissioning will be completely meaningless without objective metrics set as part of the commissioning process at a local level and without the ability to measure those outcomes. With specific emphasis on chronic conditions, what progress has been made on integrated care pathway metrics for integrated care both in the community and in the hospital? If there is little progress, when will we ensure that we have integrated care pathway metrics available to ensure that we drive forward meaningful local commissioning decisions?

Earl Howe: The noble Lord has alighted on an extremely important area. We have been very careful in constructing the outcomes framework to make sure that we define deliverable outcome indicators. The NHS Commissioning Board is satisfied that the indicators are realistic but I have to be candid with him. This represents work in progress as the precise way in which the board will demonstrate that it has made progress against each of the indicators has not been defined in every case. I can assure him that it will be. It will be up to the board, however, to construct a system of local accountability to ensure that the clinical commissioning groups are held to account against realistic demonstrable indicators which match those of the NHS outcomes framework, not least in the area of chronic conditions. The patient pathway is work in progress, too, but much of its quality can be measured by reference to the patient experience. That is one of the central domains of the outcomes framework, on which a lot of work has been done. I would be happy to write to him on that.

Baroness Jay of Paddington: My Lords, perhaps I may press the noble Earl a little further on the part about IT in the mandate. My noble friend Lord Warner also referred to it. Would he develop a little the expectation in the mandate about developing the electronic patient record, which I feel is an aspiration rather than a practical reality if it is going to take place within two years? Can he help me by describing the way in which progress can be measured, and how is this to be achieved in a period when the pressure is on local resources and there is a dispersal to local responsibility which earlier he described as being a problem?

Earl Howe: There are several objectives around our wish to see more patients having access to their records, not only to enable them to order repeat prescriptions

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and make appointments with their GPs online, which many practices already enable, but also to access their own personal health records where they wish to do so. This, too, is a work in progress. Noble Lords do not need me to tell them that there are clear confidentiality issues involved in this area. What we cannot have is a system that is open to breaches of security. However, work is going on with the Royal College of General Practitioners and the British Medical Association on that point. We have said that it is our ambition that everyone should be able to access their GP records online by 2015. That is the ambition and we think that it is achievable. However, once again I would be happy to keep the noble Baroness updated as work continues.

Baroness Williams of Crosby: I thank the noble Earl for the imaginative and humane part he has played in producing this mandate and say that it adds even further to what is already a remarkable record. I want to put two questions to him about the fourth objective in the mandate which in a sense will complement what he has already said about new technology, as well as what the noble Baroness, Lady Jay, has said about it. I want to ask him about two more specifically human aspects that fall under the fourth objective.

The first is the great importance of training health assistants to meet some of the responsibilities of their role in terms of communicating with patients. We are now putting a heavy burden of responsibility on health assistants who, of course, are not fully trained nurses and therefore are not trained in communicating with patients. Secondly, perhaps I may draw his attention to a specific area of what I think is serious failure in the NHS and its relationship with local government, and that is the field of rehabilitation, which is now probably one of the weakest areas in terms of trying to assist patients and give them a good experience of the NHS.

Earl Howe: My noble friend is absolutely right to raise both of those issues. On healthcare assistants, I can confirm that the work by Skills for Health and Skills for Care is proceeding in a very encouraging way. We are still on track to deliver a system that will enable healthcare assistants to become accredited on a voluntary basis to a register, and that is obviously a welcome step in the direction of ensuring that we can upskill the workforce both in secondary care settings and in social care. However, much will still depend on nurses in those settings to supervise healthcare assistants, and we look to the management of hospitals and care homes to ensure that proper supervision is conducted and, indeed, that there is proper training at the bedside and in the care homes of elderly people. Again, this is work in progress, but I am glad to say that the progress is real and encouraging.

On rehabilitation, my noble friend is absolutely right to say that we need to ensure that NHS continuing care and social care recognise the importance of ensuring that patients recover quickly. It is our ambition that the patient experience should be published and a measure of the quality of the service that is being delivered. Over the past two years we have made available considerable additional resources to local authorities and we will continue to do that so as to ensure that

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their budgets are not put under as much strain as they would otherwise be, and thus enable them to deliver these very important services.

Crime and Courts Bill [HL]

Crime and Courts Bill2nd Report from the Delegated Powers Committee2nd Report from the Constitution Committee

Committee (on Recommitment in respect of Schedules 16 and 17)

4.05 pm

Schedule 16 : Dealing non-custodially with offenders

Amendment 1

Moved by Lord Ramsbotham

1: Schedule 16, page 250, line 34, leave out from beginning to end of line 19 on page 251

Lord Ramsbotham: My Lords, I tabled Amendment 1 because I submit that part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution on which the Government are now embarked. Indeed, “punitive” is a pejorative word which is a red herring to achieving that revolutionary purpose. What I am going to say will also cover amendments up to and including Amendment 11A, which are all connected with this part of the Bill.

When I was Chief Inspector of Prisons, I used to remind Home Secretaries that I dealt only with facts, and reported and commented on what I had actually seen, or not seen, during inspections and visits. Anything contrary to those facts that they heard, from officials or anyone else, was fudge; and woe betide them if they tried to make improvements based on fudge, because they would get fudged improvements. My successor described this far more elegantly than I did when she referred to “virtual prisons”, which is how they were described by officials to Ministers.

What I find most disturbing about what is now before us—and indeed what is not now before us such as the content of Amendments 14 and 20, which I hope we will reach before I have to leave for a long-standing engagement—is that so much of it is fudge, including parts of it announced by the Prime Minister in a speech on 22 October. I will list some of those because I hope that noble Lords will join me in being disturbed. There seems to be a supposition that the probation service is not tough enough, because it does not want to be. That is absolute nonsense. The probation service achieves very good results, as we have heard already. It is not that it does not want to do more. It cannot do more because it has not got the resources. In their own impact statement on the Bill, referring to the word “punitive”, which I think is thoroughly unfortunate, the Government said:

“Given a limit on the overall level of 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 … 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”.

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We are told that it is all about the reoffending rate and about protecting the public by reducing reoffending. Why introduce something that is likely to damage that aim? In other words, the Government should not do it. I will not speak for my noble and learned friend Lord Woolf, who has already mentioned how offensive he found the presumption of giving judges direction about being punitive, when they already knew that that was their purpose in sentencing.

Secondly, in his letter to the noble Lord, Lord Beecham, and others on 7 November, the Minister said that,

“it would not be appropriate for the Government to provide a rigid definition of the circumstances that would qualify as exceptional: this can relate only to the facts of each individual case and is a decision for the court on the evidence before it”.

That is exactly what courts do now. So why do we need this? Why do we need to go chasing down? If Government cannot think of all these exceptions, Heaven knows, we cannot. It does not seem appropriate to include this in legislation.

Finally, in these hard economic times, the question of fines must be related to the ability to pay, as the noble Lord, Lord Touhig, has already said during proceedings on the Bill. Do the Government really think that more could be done to fine more people when they do not have the resources to pay the fines? What will be the result? I do not see that this has been thought through.

The Prime Minister also made two other fudged statements that I challenge in relation to the delivery of this proposal. He said:

“If you’re on a community sentence, you will be supervised”.

Who by and how? A quarter of a million people are currently under probation supervision and we know already that probation officers are extremely stretched in providing the supervision that they have to provide now. If cuts are to be made, we need to know how this supervision is to be carried out. In other words, we need to know the results of the probation consultation which was published to exactly the same list of stakeholders, as the Government said, as the community sentence consultation. If we are being asked to satisfy ourselves and say that we are satisfied with this supervision that the Prime Minister has announced will be available, it stands to reason that we must be able to examine the resources and come to a conclusion as to whether they will be enough, and give our advice based on our experience. Frankly, I find it totally extraordinary that this House should be asked to come to this sort of decision and conclusion without having all the facts before it.

In addition, going on from probation, we are told that payment by results is to be introduced into this process. Indeed, the Prime Minister said:

“By the end of 2015, I want to see payment by results spread right across rehabilitation”.

How on earth is that to happen if, at this present moment, the Secretary of State for Justice has suspended the publication of any data on the one trial at Peterborough, which is not strictly payment by results but social impact bonds, and when there cannot be any information for the next 18 months anyway because no prisoner will have been out for long enough to qualify for the two years needed to judge whether anything has worked? If the Secretary of State has also

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suspended any work on the randomised control trial, which is the basis of the comparison that is meant to be made, how is anyone to come to any conclusions?

Although that is social impact bonds, two other pilots were being conducted by the probation service—one in Wales and one in Staffordshire and the West Midlands. I understand that the Secretary of State has paused both of them. So no work is going on into payment by results. Nobody knows whether it works. It is a jump into the unknown. It is costing millions, put in by people on good faith at the moment. If we do not know what is happening and are not to be given any indication how it happened, how can we pass any reasonable judgment on whether this is a sensible way to proceed?

I also question whether the Government have bothered to look seriously at the results of an interesting conference run by Make Justice Work. It had 30 practitioners dealing with payment by results. They came up with four principles that have to be observed and four comments on what is happening now. First, they said that the Ministry of Justice’s present plans appear not to allow sufficient time for necessary experimentation and fine-tuning. Secondly, they questioned how success would be measured. Thirdly, they said that there is huge difference in the market and that some of the smaller organisations do not have access to the capital to enable them to contribute what they have to. Finally, they asked who is going to evaluate and inspect it. In other words, there is a vast vacuum here. It worries me that we are being driven down a route and asked to take decisions based on this word “punitive”, whatever it means, when we are talking about rehabilitating offenders to protect the public.

Thinking in my bath last night, I felt that, in a way, the Government are treating this House with contempt. They are asking people who not only know a certain amount about these issues but who care very deeply about them and also care on behalf of the practitioners in the field. What worries me about them is that they do not feel that they are being listened to. They feel that masses of theories are coming out of the Ministry of Justice and no notice is being taken of the practitioners. It is extremely unwise to launch a case like this with such poor evidence and so much in the air. Too much depends on it and we cannot afford, and it would not be sensible, to go down this route. I beg to move.

4.15 pm

The Chairman of Committees (Lord Sewel): I have to inform the Committee that if Amendment 1 is agreed to, I cannot call Amendments 2 to 10 inclusive.

Lord Woolf: I wondered whether anyone other than on the opposition Bench wanted to say something on this—I certainly do. I start by disclosing that I am the chairman of the Prison Reform Trust and the amendments in my name were put down with its support.

The noble Lord, Lord Ramsbotham, is absolutely right with his amendment. Whenever I get to my feet, I am conscious that as a young advocate, I appeared before a very well known judge, Mr Justice Stable, to advance an argument that my client should not be

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convicted of murder but manslaughter, and he said to me, “Mr Woolf, if you heed my advice, you would not water the brandy”. I fear that by getting to my feet, I may be inadvertently watering the brandy of the noble Lord, Lord Ramsbotham, because, as has been pointed out, if we get rid of the clause as a whole, we do not need to bother with the detail.

As to the detail, if it remains, I urge the House to get rid of the word “exceptional”. It has been used in legislation in the past. Wherever it has appeared, it has caused difficulties, not least because the question is: what is exceptional and what is not exceptional? That gives the advocate a difficult task; probably more importantly, it also gives a difficult task to the judge. You get into situations where judges are tempted to give an exceptionally wide meaning to the word “exceptional”. I remember a case where I did just that, because it created such an obvious nonsense that it resulted in injustice. A great judge, Lord Bingham, took a much narrower view of the meaning of that word than I did. The fact that two successive Lord Chief Justices should interpret that word in different ways illustrates my point.

With regard to the first of my tabled amendments, I urge the House to deal with the word “exceptional” if it allows this part of the schedule to survive. If it is removed, I suggest that proposed new subsection (2B) of Section 177 will have a sensible meaning. It would read:

“Subsection (2A) does not apply where there are … circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and … would make it unjust in all the circumstances for the court to impose a fine for the offence concerned”.

I do not think that the criticisms that I have made of “exceptional” apply to “unjust”. When judges are sentencing, they are trying daily to achieve a just sentence and if a sentence is unjust they will not impose it. The trouble with Section 177 is that if it is amended as set out in the schedule, it will become a vehicle for causing injustice. If you are sentencing you have lists of sentences for various offences, which you can impose. You might go down the list and decide that a community sentence is the appropriate one. Once a judge has decided that is appropriate, to say that he then has to perform an exercise to see whether that sentence is punitive—and put something else in if he comes to the conclusion that it is not—is really nonsense. It will cause him to do exactly what he has concluded is unjust. He has come to the conclusion that although the community sentence is necessary, it is not necessary to have an additional punitive penalty. From the practical point of view, that really is not a satisfactory outcome.

The other amendment with which I am involved in this group is Amendment 8. Or is that one not being spoken to yet? I apologise to the House; I will come to that later.

Baroness Hamwee: My Lords, I was thinking about not brandy but confectionery and I do not find this fudge, if one thinks about it, as being sweet and tasty. In every other way, however, I absolutely follow what the noble Lord, Lord Ramsbotham, has said, although my remarks will cover rather narrower ground than his.

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I really wonder, as others have, whether this provision is necessary. If it is only gesture politics—I say that rather bluntly—it might not be so bad, although I would still deplore it because I deplore gesture politics, but it must mean something. As the noble Lord said, every day the courts do the things that we are being told this provision is directing them to do. I do not believe it does anything but restrict sentencing choices. It imposes a requirement that may be detrimental for offenders whom one is seeking to rehabilitate. I do not need to amplify that; we have a lot to get through and these points will be made better by others throughout today.

I wonder whether Amendment 2 achieves anything. I support the sentiment behind it but changing “must” to “may” does not add anything if we accept that punishment is already one of the purposes of sentencing —which it is, under Section 142 of the Criminal Justice Act 2003. As I say, however, I am with that sentiment.

The letter dated 7 November that we received from the Minister said that the term “exceptional circumstances” is very tightly drawn. I had to go back and reread that, because I think “exceptional circumstances” is very widely drawn when one thinks about the context in which we are debating this. As noble Lords have so often said, and as others outside this House have reminded us, such a very high proportion of offenders suffer from mental illness, substance misuse and dependency that one could not say that there was anything exceptional about their circumstances. The noble Lord, Lord Ramsbotham, referred to debt in the context of imposing a fine. That made me think that being in very straitened financial circumstances, combined with other factors, is often a prompt or a nudge towards theft and various offences.

When we last debated this schedule, I suggested that “particular circumstances” would be a better term than “exceptional circumstances”. Discussing that with colleagues later, we wondered about “special circumstances”, and my noble friend Lady Linklater has tabled Amendment 6 to propose that term. Essentially, we are trying to suggest a number of other possible terms—not alternatives because I do not think “exceptional” is right—if the Government are insistent, as I expect they will be, on retaining this part of the schedule. The noble and learned Lord, Lord Woolf, has taken a scalpel to it and pointed us to the inconsistency between the terms “just” and “exceptional circumstances”. I am very happy to line up behind him if that is the way that the House thinks we should go if we do not get rid of this altogether.

Baroness Butler-Sloss: My Lords, I put my name to Amendment 5, but I strongly support what the noble Lord, Lord Ramsbotham, said and his Amendment 1 to take the whole of this out. I am also happy to support Amendments 4 or 6. I shall make the very obvious point that every community order will be, for the offender, a form of punishment because it is mandatory. You do not need to use the word “punishment” because it is implicit in a community order. I am sorry to say it again, but since the Government have put a form of punishment as part of a community order, as if a community order was not a punishment, I find this extremely difficult to follow. The terms are

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in conflict with each other in this proposal by the Government


I had not seen it that way to quite the same extent as I did looking at this today. For goodness sake, why put it in? It is sad that the Government seem to need to use the words “punitive” and “punishment” when it is already clear that a community order is punishment because it is an order that whoever receives it will have to obey. If that particular offender does not obey a community service order, he or she will be punished for failure to obey a punishment that has already been imposed. In my view, the words “punitive” and “punishment” are unnecessary, inappropriate and profoundly unattractive. Like the noble Baroness, Lady Hamwee, I wonder whether this is gesture politics. I very much hope it is not, but she made a point that this House ought seriously to consider.

I do not mind whether we use the word “particular”, as the noble Baroness, Lady Hamwee, said, instead of “exceptional”. Preferably, perhaps, we could do what the noble and learned Lord, Lord Woolf, said, which would be to take the word out altogether. The noble Baroness, Lady Linklater, has suggested using “special”. The point is that “exceptional” should not be there for the reasons that the noble and learned Lord has already given. I do not mind how it is altered but the word exceptional has to come out.

The Government have to listen to the people in this House who spoke last week and today and said that this will not do. As I think I said previously, I urgently and respectfully suggest to the Ministry of Justice that this is an unsuitable way to be going ahead. As I have already said, it is profoundly unattractive. The words “punitive”, “punishment” and “exceptional” should be taken out. The Government should recognise that a community order is a punishment. They should not just look to the lobby of the press or the public, but should do what is right.

4.30 pm

Lord Phillips of Worth Matravers: My Lords, I endorse everything that has been said thus far in criticism. In my time, I have acted as a sentencer and done a touch of community service. As I understand it, the requirements referred to in the amendment are the requirements under Section 177 of the Criminal Justice Act 2003 that can be made when a community order is imposed. As the noble and learned Baroness, Lady Butler-Sloss, has said, they all require the offender to do something which he or she would otherwise probably not choose to do, so they all have an element of punishment or sanction.

How is this amendment to work? Is the sentencer to be bound to impose one of the requirements by way of a community order exclusively by way of punishment or does the sentencer merely have to say, “I am imposing this not merely for the purpose of rehabilitation but also to punish you”? If it is the latter, the effect is purely cosmetic. If it is the former, the effect, I would submit, is even less desirable.

Baroness Howe of Idlicote: My Lords, I support the approach of my noble friend Lord Ramsbotham to the whole of this schedule. We have been over this ground before. As the noble and learned Baroness,

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Lady Butler-Sloss, has pointed out, punishment is in the sentence. The important scenario is how that sentence is to be worked out for the rehabilitation of the offender, with the effort being to see that that offender does not return to the court. As we all know, all too often that is not the case.

My other concern is that we have had no result—again, this was mentioned by my noble friend Lord Ramsbotham —from the Government on the probation consultation. For us to be asked to make judgments at this stage without having in front of us all the facts about who will do a lot of this very necessary, specialised work, is not acceptable. Frankly, I do not want any of the alternatives that have been suggested but, if others are prepared to keep this whole section in and I had to choose, I would go for that suggested by the noble and learned Lord, Lord Woolf. Then it would be left to the judges to make the decision, which is the way in which we have in the past treated, and should continue to treat, the judicial system.

Lord Elystan-Morgan: My Lords, alongside those who have already spoken, I humbly subscribe my support for this amendment. If ever there was an argument on the part of government that has been shot through and shattered, this is it. If ever there was a piece of legislation where there was an overwhelming and unanswerable case against it, this, in my respectful submission, is it. I appreciate the argument put forward on 30 October by the noble Lord, Lord McNally, when he mildly, with considerable charm, chastised me. He said that it is wrong to argue that a Government should take a view which is different from the policy that has been established by judges over a long period of time. I think I do him fairness in summarising it in that way. He must be right. Parliament is sovereign and supreme. Judges do their best within the limits set down by law, but they can—and should, on occasion—be overruled by Parliament. That is what Parliament is about.

However, I believe that there should be a qualification to that rule: Parliament should never do that, and certainly should never circumscribe the discretion of judges, properly and justly used, unless a case had been made for that, and that case would rest on facts. In my submission, this case does not rest on facts at all. It rests much more on some form of political prejudice. The noble Lord, Lord Ramsbotham, on 30 October, quoted a speech made by the Prime Minister on 22 October dealing with this particular matter. These were the words used by the Prime Minister on that occasion:

“‘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’.”.—[Official Report, 30/10/12; col. 523.]

It seems to me—and I made the point in a general way on the previous occasion—that essentially the Prime Minister was talking about including some element of hurt in a sentence. That is not the same thing as punishment.

The noble and learned Baroness, Lady Butler-Sloss, has already made the point that the fact that a person, with the sanction of the law, is enjoined to do something

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that he may not wish to do, is of itself a punishment. He is subjected to the sovereignty of the court in that respect. I would argue further that the very fact that a person is convicted of a criminal offence, and that stain will be on his escutcheon for ever, even with all the ameliorations of the 1974 Act, is of itself a punishment. However, what is asked for here is something that society regards as hurting the offender. The rationale behind it seems to be that society in some way, through the courts, has failed to recognise that essential element of hurt. In other words, it is saying, “You are namby-pamby. You are soft. You are far too liberal in your attitude in this matter. You are not tough enough”. There is no evidence whatever to support that contention.

As far as the probation service is concerned, the noble Lord, Lord Ramsbotham, has shown quite clearly that it is tough, it is not soft and it is succeeding. The vast majority of cases are dealt with satisfactorily up to level 3; indeed, some of them up to level 4. No professional body could be expected to do better than that. Where is the evidence of the failure to exercise the element of harshness and pain—for that is what the Prime Minister was talking about?

It is entirely proper for a Government, where they are justified in doing so, to circumscribe the discretion that lies with any judge. I think that both Governments have been doing it a little too liberally over the past 20 years. Be that as it may, where they genuinely believe that there is such a case, they are entitled and indeed, one might say, obliged to do so. The case has not been made. If the Government cannot come forward with any hard evidence at all, they will, in effect, be relying on what the noble and learned Baroness, Lady Butler-Sloss, described really as a cosmetic and rather vulgar attitude, where they will be seeking a populist commendation for something that is utterly unworthy.

Lord Carlile of Berriew: My Lords, I support entirely the sentiments behind the amendment moved so ably by the noble Lord, Lord Ramsbotham. I support verbatim the comments that were made by the noble and learned Baroness, Lady Butler-Sloss, and share the concerns expressed by the noble and learned Lord, Lord Woolf, about the use of the word “exceptional” in these provisions.

These proposals ignore what happens every day of the week in court rooms up and down the country. There is a substantial class of cases—or there are classes of cases—which are not particularly common but fall far short of being exceptional. I am the last person here who should attempt to explain to this House in the presence of members of the judiciary who have already spoken what the term “exceptional” means, but usually it means roughly what the dictionary definition says that it means. These are not the common class of cases; they are truly exceptional.

I mention one group of cases that I have experienced as a practitioner and sitting as a recorder and that causes me real concern in the context of this part of the schedule. It is a group of cases in which the defendants are usually women who have been subjected to often very severe domestic violence and sometimes sexual violence. They have done something fairly serious in terms of criminal law and have usually pleaded

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guilty. They have to be sentenced by the court, but punishment is somewhere low down the list of the priorities that the judge passing sentence has in mind. The sentence can serve a useful service; there are elements in community sentences that are restorative or retributive and can help to resolve the situation that has given rise to the appearance in court. The requirement of punishment in all but exceptional cases seems to ignore the reality of a class like the one that I have mentioned. For that reason, I invite my noble friend the Minister to hearken very closely to this debate, which has had some very authoritative voices speaking in it, and think again.

Baroness Linklater of Butterstone: My Lords, I add my voice to the chorus of consent as to what this amendment is all about. It seems to arise from the Government’s wish to include specifically punitive requirements in order to, as the Minister for Justice has said, put punishment back into sentencing. The goal is to appear to be tough. This move is simply crude, inappropriate, and very unlikely to realise outcomes that are positive or helpful in any way in the long run. It raises the fundamental issue of what the ultimate goal of sentencing is, or should be, and where the balance should lie with punishment for its own sake. Here I agree completely with the noble Lord, Lord Elystan-Morgan, that when the Government talk about punishment in this context it implies something painful, distasteful and unpleasant. I am clear in my own mind that the reduction of reoffending should be the prime purpose of sentencing, when sentencers make their choices from the available options.

If punishment has its place, we know from the Government’s own research that punitive options on their own achieve nothing in terms of reducing reoffending, and only when allied with other constructive sanctions have they any impact. There is a real risk that requiring sentencers to add this extra element will restrict their freedom to set appropriate sentences based on the facts and circumstances of individual cases. Invariably, there will be a range of support needs at issue. We know, as we have already heard, that the majority of those coming before the courts have significant mental health and learning difficulties, as well as substance misuse, real social deprivation, and so on.

What constitutes exceptional circumstances when what may be exceptional in the general population is more like the norm in the offending population? Their needs are indeed exceptional, so what are the courts to do when the exceptional is the norm? I have put my name to Amendment 6, which seeks to,

“leave out ‘exceptional’ and insert ‘special’”,

to try to make a meaningful distinction, but in the end the courts must be free to decide this issue, as has been commonly agreed. They have to be trusted to find the right balance between punishment and rehabilitation in the decisions they have to make based on individual circumstances and need. Punishment can be used but emphatically not for its own sake and should always be combined with rehabilitative requirements if the ultimate goal of reducing reoffending is to be achieved. It follows, therefore, that the various elements of a disposal must be compatible with each other. I echo

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what has already been said and remind my noble friend the Minister that all requirements do indeed represent a punishment where freedom is being curtailed. It is true that we have a long way to go before all community sentences are as effective as we would like them to be, but punishment for its own sake is not the answer.

4.45 pm

Lord Ponsonby of Shulbrede: My Lords, I support the gist of the amendments as they have been spoken to. I apologise to the Committee for turning up a bit late for this important debate. I emphasise the point made by the noble and learned Baroness, Lady Butler-Sloss, that the sentence itself is the punishment, if one wants to use that word, rather than necessarily the elements within the sentence.

We recently dealt with the Legal Aid, Sentencing and Punishment of Offenders Bill and the relevant training for magistrates and sentencers up and down the country is under way right now. In that training sentencers are told that suspended sentences could have no requirements at all, so that the suspended sentence is itself the punishment for the offence rather than any requirements that may be added by the sentencing Bench. In my view this clearly shows that the Government also agree that the sentence itself is the punishment and that there is no requirement at all in certain, admittedly rather unusual, circumstances for there to be any particular elements to that sentence. Therefore, I do not see what the need is for “punitive” in the first place. I agree with previous speakers that it is a piece of political grandstanding and does not add anything to the Government’s objectives as they are already being rolled out in the training of magistrates in relation to the previous criminal justice Bill.

Lord Rosser: My Lords, my Amendment 2 is designed to find out rather more about the reasons behind the Government’s thinking and how paragraph 2 of Schedule 16 is to be interpreted. The schedule clearly states that where a court makes a community order that must include,

“at least one requirement imposed for the purpose of punishment, or … a fine”

unless there are exceptional circumstances. The Government have decided that there will be exceptional circumstances in around 5% of cases. It is not clear why the Government are going down this road. Their own impact assessment refers to research that has been undertaken by the Ministry of Justice, as I understand it. The impact assessment states:

“Offenders who receive supervision, punitive requirement (unpaid work or curfew) and a programme requirement were less likely to re-offend and committed fewer re-offences within a 2 year period of the community order, compared to those who receive supervision and a punitive requirement”.

It then goes on to say:

“There was no impact on re-offending of adding a punitive requirement to certain other specified combinations of requirements”.

Finally it says:

“Adding supervision to a standalone punitive requirement reduces re-offending”.

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Most people would regard those statements as not exactly a ringing endorsement of the value of a punitive requirement. Further on in their own impact assessment, the Government come out with this statement:

“The Government considers that community orders are currently not sufficiently demanding for offenders”.

Is that all of them? All community orders are not sufficiently demanding? If that is the case, then what do the Government intend to do to make all community orders more demanding, since that does not seem to be referred to in any documentation? I hope the Minister will tell us whether that statement in the impact assessment represents the Government’s view when they say:

“The Government considers that community orders are currently not sufficiently demanding for offenders”.

It does not say some of them. It does not say the third that do not include the punitive element. It just says they are not sufficiently demanding for offenders. The Minister will, no doubt, respond to that point and tell us how the Government intend to make the community orders sufficiently demanding in their view.

It says further on—in paragraph 37 if the Minister is interested—in the impact assessment, which is, as I understand it, the Government’s own document:

“Given the need for community orders to remain proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones. The research that we have undertaken does not tell us about the impact on re-offending of replacing requirements with more punitive ones”.

In other words, the Government do not know what the implications of their proposal will be for rehabilitation. Yet they are still proceeding. There is no other interpretation that can be put on that extract from the Government’s own impact assessment.

We have previously raised the issue of the victim surcharge and I would like to talk a little about that. The victim surcharge is for offences committed on or after 1 October this year—the beginning of last month. It will be, with no apparent exceptions, £60 where a community order is given as a sentence to an adult offender. Since for offences committed before 1 October this year there was no requirement to include a victim surcharge where the sentence was a community order, will the victim surcharge of £60—which I believe is now mandatory with a community order—be regarded as the equivalent of a fine, as referred to in proposed new subsection (2A) in paragraph 2 of Schedule 16? If it is, we need not concern ourselves much more with this part of Schedule 16, since every community order will automatically include what is, in effect, a fine, albeit called a victim surcharge, and meet the requirement to include at least one requirement imposed for the purpose of punishment or the imposition of a fine.

If the new £60 victim surcharge for an adult offender, and £15 for a youth offender, which has, I think, just been made mandatory where a community order is imposed, is not to be regarded as a fine under proposed new subsection (2A) in paragraph 2 of Schedule 16, then why not? From the point of view of the offender, the effect is still the same whether it is a £60 fine or a £60 victim surcharge. They still have to pay the money or run the distinct risk of more severe action being taken, including the possible loss of liberty. This £60 victim

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surcharge is a new penalty to be paid by the offender, since it applies only to offences committed since the beginning of last month. It was not in existence at the time the Bill was being drafted. Has the victim surcharge of £60 to be imposed where there is a community order changed the situation and if not why, why not?

We have a situation at the moment under the Bill where presumably the court, with a so-called non-punishment community order, could levy a very small fine of, say, £15, because of the financial circumstances of the offender. That fine would be deemed to be the equivalent of a punishment under proposed new subsection (2A). The court would then have to impose a victim surcharge of £60—some four times higher than the £15 fine, which could cause the offender much greater difficulty in terms of payment. However, that would not be deemed a punishment under the terms of the proposed new subsection. That does not appear to make a lot of sense or have much logic behind it.

The wording of our amendment, which substitutes “may” for “must” would, among other things, enable the court to decide that the £60 victim surcharge, which is payable when a community order is handed down as the sentence, was sufficient as a punishment element, and the court would not also be required to include either a fine or a further requirement imposed for the purpose of punishment, as currently appears to be the case under proposed new subsection (2A).

I do not intend to go over other points. They have been eloquently made, and repetition would achieve nothing. I look forward to hearing the Minister’s response to all the points raised and questions asked in this debate.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, it seems a long time since I was looking forward to us reaching this part of the Bill, where, as noble Lords will recall, we slightly bent the rules—goodness knows what they are now—to allow for Clause 23 to bring in rehabilitation proposals. Of course, in a debate in which a former president of the Supreme Court, a former Lord Chief Justice, a former president of the Family Division and a former Her Majesty’s Inspector of Prisons give their opinions, I listen—as I indeed listened to the noble Baronesses, Lady Howe, Lady Hamwee and Lady Linklater, the noble Lord, Lord Carlile, and particularly the noble Lord, Lord Elystan-Morgan. We had a very interesting discussion about the relationship and power of Parliament and the judiciary. I look forward to reading the noble Lord’s memoirs, which I notice have just been published in Welsh. Have they been published in English? I do not know.

Lord Elystan-Morgan: As yet, this is so.

Lord McNally: They are on my Christmas list.

The proposal of the noble Lord, Lord Ramsbotham, is a nuclear option, which I will address in my remarks. However, I will start by reassuring noble Lords that the Government fully recognise the point that underpins many of these amendments and agree that offenders who receive community orders are a diverse group, with wide-ranging characteristics and individual circumstances.

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For example, such offenders are more likely than the general population to have a disability, to come from low-income households or to receive work-related benefits. Many other examples were brought out in detail by the practitioners who responded to our public consultation on these proposals.

It is clearly vital that community orders take into account these diverse needs. We cannot have a one-size-fits-all approach to non-custodial sentences. At the same time, we also need to recognise that community orders cannot focus only on the reoffending needs of the offender. Many who receive community orders have committed not inconsequential offences. The sort of offences for which sentencing guidelines suggest community orders would be appropriate include actual bodily harm, thefts in the hundreds or low thousands of pounds and first-time domestic burglaries.

While it is critical to address the causes of such offending, it is legitimate to expect such behaviour to face punishment. It is clear that fines and custodial sentences provide punishment for an offender; but at the moment it is possible for a community order to be based solely on addressing the offending needs of an individual offender. Our argument is that, by including the punishment element, we will win the vital public confidence for the holistic response that is at the heart of our proposals: the rehabilitation of offenders.

Our provisions seek to balance the purpose of punishment with ensuring that the courts retain flexibility to tailor community orders around offenders’ circumstances. To that end, I remind noble Lords that we have already amended our original consultation proposal that courts should be required to include specified elements, such as community payback or a curfew requirement, in every community order. Practitioners were clear that, although some community order requirements such as curfews or unpaid work were more often likely to represent a punishment than others, in the right circumstances—this comment has been made by a number of noble Lords—all the existing 12 community order requirements could potentially be punitive for a particular offender. That is why Part 1 of Schedule 16 gives the courts the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.

5 pm

I also remind noble Lords that the existing community order framework gives courts and probation services significant flexibility to make reasonable adjustments to requirements to fit the circumstances of an offender. For example, the hours of a curfew can be flexed so that they do not adversely impact on an offender’s childcare, employment or education needs. The type of work involved in community payback can be adjusted to suit an offender’s physical or mental health. Similarly, the number of hours of work carried out per week can be built around an offender’s employment or caring responsibilities. Fines can be set at a level that takes into account vital outgoings; for example, so that they do not have a disproportionate impact on an offender’s dependants.

The provisions in Part 1 of Schedule 16 do not alter this existing flexibility. These provisions seek to balance the need to increase public confidence that community

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orders are a credible sanction for offending with the importance of courts having discretion to tailor sentences around offenders’ circumstances.

I turn now to the amendments tabled by my noble friends Lady Hamwee and Lady Linklater and the noble and learned Lord, Lord Woolf. I want to be clear that it is the flexibility of the existing community order framework that means that the Government envisage only a narrow range of circumstances in which a court would not consider it just to impose a requirement that meets the purpose of punishment. Courts will be able to consider which of the 12 current community order requirements, or a fine, might be a just and appropriate means of fulfilling this duty.

As I have set out, the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders. That is why the current provision has a tightly defined threshold of “exceptional circumstances” because nothing in it changes the flexibility that the courts have to ensure that punishment is matched to a particular offender’s circumstances. Substituting “exceptional circumstances” for “particular circumstances”, “special circumstances” or simply “circumstances” would significantly lower the threshold at which courts could decide not to impose a requirement that fulfils the purpose of punishment.

Community sentences need to strike the right balance between punishment, rehabilitation and other purposes of sentencing. These amendments would prevent the provisions from securing that balance, and from providing the public reassurance that will, in turn, secure legitimacy for the use of community sentences to address the causes of offending.

Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective. It provides for what I would describe as rehabilitation with teeth. As this approach has had the endorsement of the Prime Minister and the new Lord Chancellor, I would have hoped that was the main gain that we have had and what the House should concentrate on.

I hope that noble Lords will accept the rationale for this provision, the flexibility that it preserves for the courts, and the reasons why in practice there are likely to be few cases where punishment is not an appropriate purpose for a community order. Therefore, I hope that the noble Lord, Lord Ramsbotham, will not press the amendment.

The noble Lord, Lord Rosser, asked about the victim surcharge. It is not a fine and it is not part of the sentence. It will be regarded as a surcharge for victim services. I hope that I have covered this.

Lord Rosser: The noble Lord said that the surcharge was not a fine. Will he confirm that it has to be paid? What happens if it is not paid? Will he confirm that action will be taken, just as it would be with a fine?

Lord McNally: Yes, that is exactly the case. However, I also said that the court would be able to use discretion about the circumstances of the individual.

Lord Rosser: In 95% of cases it will not, because the Government have already decided that “exceptional circumstances” will apply to only 5% of cases.

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Lord McNally: I would be interested to know where the Opposition stand on two things. First, with the victim surcharge we intend to raise considerable amounts of money from offenders that will go to victims. I presume that the Opposition are in favour of that. Secondly, we are determined to pursue offenders. I know that, particularly in this House, we always hear about the hard cases—but far too many people who offend and are given fines then do not pay them. We intend to pursue them and make sure that they do pay them.

Lord Rosser: We are certainly quite happy for people who do not pay fines to be pursued. I do not know why the Minister raised the issue of what the Opposition think of the victim surcharge. We have never voiced opposition to it. I think that he raised that issue in order to dodge the very direct question that I asked when I put it to him that the victim surcharge is very similar to a fine for the offender. They have got to pay it and if they do not they will be in the same kind of trouble as they would be if they did not pay a fine. The Minister raised the issue of the victim surcharge simply to avoid answering the very direct question that he was asked.

Lord McNally: I was asked a direct question and I gave a direct answer. The victim surcharge will be in place, but it is not a fine. That is what the noble Lord asked and that is what I answered. Now I ask the noble Lord, Lord Ramsbotham, to withdraw his amendment.

Lord Ramsbotham: My Lords, I thank all those who made such powerful contributions to this very interesting and wide-ranging debate. Although I say “wide-ranging”, there was no doubt in my mind that everyone was focused on the primary issue throughout, and covered various aspects of it.

The Minister mentioned that the public sought confidence in the system. Confidence comes from proof that things work. What worried me in all the contributions that were made was that they disclosed vast gaps in things being carried out that have been put to the public as being matters in which they can have confidence. Too much is not proven and not known at present.

I will ask the Minister two questions. First, when can I expect a reply to my letter of 4 October to the Secretary of State, asking for a meeting on this? I have not even had a reply. I would like a meeting because, like many noble Lords, I am functioning slightly in the dark. The Secretary of State is an éminence grise and it would be enormously helpful to find out from him exactly what he feels and thinks.

Secondly, I hope that between now and Report it may be possible to have a meeting and a briefing about this so that we can get to the bottom of some of the issues that have been raised. I do not think that this is an appropriate time to test the opinion of the House. Therefore, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

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Amendment 3

Moved by Lord Rosser

3: Schedule 16, page 251, line 2, at end insert—

“(za) have regard to the need to promote rehabilitation,”

Lord Rosser: Our amendments in this group include a requirement to promote rehabilitation. This requirement appears to be missing from this part of Schedule 16, despite the words of government Ministers recently that promoting rehabilitation was one of their objectives. Indeed, the Minister waxed lyrical in his response to a debate in Committee by telling us that,

“here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on”,—[

Official Report

, 30/10/12; col. 546.]

not apparently, though, in this schedule as that objective does not seem to be strongly reflected in the terms of the Bill, in particular, in paragraph 2 of Schedule 16. Can the Minister tell us why the Government decided not to make it a requirement on a court when making a community order to also include at least one requirement imposed for the purpose of rehabilitation unless there were exceptional circumstances in line with the provisions in proposed new subsection (2B)? There is not even a requirement, I believe, for a court to consider including at least one requirement imposed for the purpose of rehabilitation.

When we last discussed this matter, the Minister accepted the statistics given by my noble friend Lord Beecham about the nature of people who come into our criminal justice system in relation to educational achievement—or, rather, lack of it—drug and alcohol problems, mental health disorders, having been in care and having been unemployed. Indeed, the Minister has referred to these issues already today.

In his response to the debate in Committee, the Minister said that,

“the prize for getting rehabilitation on to the agenda is extremely important”,—[

Official Report

, 30/10/12; col. 546.]

but not, apparently, in this part of Schedule 16, which is all about mandatory punishment.

The Minister also told us:

“Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment”.—[Official Report, 30/10/12; col. 548.]

He later said:

“The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer”.—[Official Report, 30/10/12; col. 549.]

In the light of those two statements, which conflict with the Government’s previously declared intentions as to what would be defined as a requirement imposed for the purpose of punishment as set out in new subsection (2A) in Schedule 16, perhaps the Minister could tell us when he responds what is the definition of the “punitive concept” which has been widely drawn and is very much in the hands of the sentencer. Perhaps the Minister could also tell us whether his statement that someone who may never have got up before noon might classify learning to read and write as a punishment means that a community order with a requirement to

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take a course developing reading and writing skills would be regarded as meeting the provision in new subsection (2A) in Schedule 16 of,

“at least one requirement imposed for the purpose of punishment”.

The Minister was undoubtedly right in drawing attention to the fact that programmes designed to help rehabilitate the offender and reduce reoffending to the benefit of everyone involve punishment. There is a requirement for an offender to attend at specific times, on specific days, for a laid-down period of time, to undertake a specified programme or a specified activity which they most certainly would not otherwise have done. Having to undertake that programme or activity involves loss of liberty for the time they are involved, as they have to do it, and failure to attend or to treat the programme or activity seriously is liable to lead to the offender being brought back to court and either having the programme or activity made more onerous or another punishment imposed, which could include being sent to prison.

Rehabilitative programmes often involve offenders being forced to face up to their behaviour and way of life in a direct way, which can be challenging and distinctly uncomfortable for the offender. In our amendments we have listed programmes and activities which would be regarded as a punishment requirement under the terms of proposed new subsection (2A) in Schedule 16. We have also included unpaid work, a curfew, and exclusion in that list. We have not included as a punishment a requirement that would involve purely supervision.

If the Minister meant what he said on 30 October about somebody classifying learning to read and write as a punishment, and he will agree that the punitive concept is widely drawn and very much in the hands of the sentencer, he will accept our amendments or at least agree to come back on Report with government amendments along similar lines. I beg to move.

5.15 pm

Lord Woolf: My Lords, I think now is the appropriate time for me to deal with Amendment 8, which returns to the same problem indicated earlier. I hope I am right in assuming that the Government do not intend the provisions of Section 177 as amended to undermine the effectiveness of community sentencing. My amendment makes that clear by qualifying the requirement contained in the proposed new Subsection (2A) to exclude that provision where it is likely to reduce the effectiveness of the order in preventing reoffending by the offender. This at least gives the sentencing judge a way of not doing something that he knows will be destructive of the beneficial effect of community sentence.

Baroness Hamwee: My Lords, the noble and learned Lord’s amendment goes to the heart of the issue. It would be ironical if what he is seeking to avoid were in fact to come about since all this should be about preventing reoffending. My Amendment 11 provides that none of this should affect the provisions of Section 142 of the Criminal Justice Act 2003, which sets out the purposes of sentencing. I realise that it would have been better drafting if I had just referred to Section 142(1), but never mind; one can come back to that at a later stage.

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I am seeking to ensure that we do not impose a hierarchy of purposes and that we leave punishment where it is as one of five principles. I am sure that the Minister understands that this is the quite simple purpose of this amendment. I hope that he can reassure the Committee that nothing here seeks to alter in any way those well established five equal partners in principle.

Lord McNally: I thank noble Lords for their contributions. Let us be clear: of course the five principles are intact but, as the noble Lord, Lord Elystan-Morgan, queried earlier, why bring legislation if we do not intend to change things? We do intend to change things. The whole thrust of what we are trying to do is to use community sentencing effectively, couple it with a real drive on rehabilitation, and also—and we think we have public support in this—use the element of punishment to drive home both the rehabilitation message and the punishment message.

Part of that has come out in our debates. There are noble Lords who believe that “exceptional” covers around a third of offenders. That is exactly the problem we are trying to address because the idea that somehow a third of offenders cannot be punished is what undermines public confidence. That is why we are making the point that exceptional circumstances apply to a very narrow group and that it is possible to put a punishment element into a much wider range of sentences while giving the court the flexibility to take account of the circumstances of the person before it. However, as I said in the earlier debate, we are going to resist those who want to amend the Bill so that there is a three-lane highway of exceptions from what we are trying to do.

Amendments 3, 3A and 8 focus on ensuring that the courts,

“have regard to the need to promote rehabilitation”,

and that punishment is not imposed at the expense of rehabilitation. Amendment 9 looks at the detail of what requirements might constitute punishment for an offender, and finally, Amendment 11 looks at the impact of the changes on the purposes of sentencing as set out in Section 142 of the Criminal Justice Act 2003. On the issues raised by the first three amendments in this group, I am happy to reassure the Committee that it is not the Government’s intention that any of these provisions should jeopardise the prospect of rehabilitation for offenders. In fact, as the noble Lord, Lord Rosser, said, I have already made the point a number of times that I am proud that the amendments we will be debating place rehabilitation so firmly on the agenda—and I keep on reinforcing what has been commended by the Prime Minister as part of this thrust of criminal justice reform.

Lord Woolf: Will the Minister forgive me if I ask him to indicate whether he thinks there cannot be a situation where a judge might conclude that the effectiveness of what is proposed by the Government might reduce the effectiveness of the order to prevent reoffending? If that is the judge’s conclusion with regard to the proposed new provision, does the noble Lord think that the judge should have an escape hatch?

13 Nov 2012 : Column 1433

Lord McNally: Yes, of course, judicial discretion should remain. But what I do not want to do from this Dispatch Box is give the impression that on the one hand we are saying down the corridor and on public platforms that we are going to make punishment a key part of giving credibility to community sentences, and that on the other hand the House of Lords is giving a nudge and a wink that actually the judiciary can do what it wants. That would be wrong. I hope that a learned judge, on seeing an exceptional case that needs that kind of judgment, would exercise that judgment. But I hope also that judges will see it as exceptional and not applying to a third of the cases before them. I hope that that is a sufficient assurance for the noble and learned Lord.

Community orders can, in the right circumstances, be highly effective at tackling the causes of offending. The Government are very clear that we need to build on the reductions in reoffending rates in recent years. That is why the Government are proposing to retain Section 148(2)(a) of the Criminal Justice Act 2003, which provides that the requirement or requirements imposed as part of a community order should be those that are, in the court’s opinion, most suitable for that offender. That should provide reassurance on the point that the noble and learned Lord, Lord Woolf, has just made. I would also draw noble Lords’ attention to Section 177(6) of the Criminal Justice Act 2003, which requires courts to consider, when imposing two or more community order requirements, whether they are compatible with each other given the circumstances of the case. Again, the Government do not intend to change that requirement.

In short, these provisions will not prevent courts from imposing requirements that are focused on the offender’s rehabilitation or from imposing a combination of requirements that is most suited to the offender’s needs. While accepting the spirit in which Amendments 3 and 8 have been tabled, I believe that existing statutory frameworks already provide adequate safeguards.

Amendment 3A would change the nature of the punitive element provision so that the courts would be required only to impose a requirement that delivers both punishment and rehabilitation. It is of course true that many of the community order requirements can deliver two or more of the purposes of sentencing. If a court wishes to impose a sentence that delivers both punishment and rehabilitation, choosing a single requirement that delivers both is one possible option—but so is combining a punitive requirement with an additional requirement, ensuring, of course, that the total weight of the sentence is proportionate to the seriousness of the offence.

The noble Lord, Lord Rosser, made a specific query about the example I gave. In theory, a single requirement, activity or programme along the lines that we talked about could fulfil this duty if a court felt it was appropriate for that particular offender. However, there will also be occasions where the court may decide that a purely or primarily punitive requirement is an appropriate response to a particular offence. We would not wish courts’ discretion to be limited so that they are required to impose both punishment and rehabilitation in cases where they do not believe both are necessary.

13 Nov 2012 : Column 1434

However, as I previously stated, the Government firmly believe that all community sentences, bar in exceptional circumstances, should contain a punitive element. For this reason, while I entirely accept the point that punishment may often support rehabilitation, I do not believe that this amendment is desirable.

Turning to Amendment 9, a number of noble Lords have asked, both in Committee on 30 October and in today’s debate, which community order requirements courts could impose to fulfil this duty. I refer noble Lords back to the responses we received to our consultation on this issue. Practitioners were clear that, in the right circumstances, all 12 existing community order requirements could be punitive for a particular offender. The Government recognise the force of this argument. The courts are best placed to decide, on a case-by-case basis, what is punitive for a particular offender. That is why the Bill is drafted to give courts the flexibility to impose any community order requirement to fulfil the duty to include a punitive element, so long as they can be confident, on the evidence before them, that the requirement will genuinely prove to be punitive for that offender.

Of course, in practice, there are some community order requirements which courts are likely to make more use of than others. Again, this was a point that sentencers and those working with offenders made very clear in the consultation response. The consensus was that certain requirements, for the majority of offenders, are more likely to be punitive than others. The requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government would expect to see an increase in the use of such requirements if this provision is enacted. However, the Bill leaves it open to the courts to decide to impose other types of requirements if they believe, in the circumstances of a particular case, that this would fulfil the purposes of punishment.

Finally, turning to Amendment 11—

Lord Clinton-Davis: The noble Lord referred to other provisions. Would he define what he means?

5.30 pm

Lord McNally: It is difficult. I do not know at what time the noble Lord joined our debate.

Lord Clinton-Davis: I have been in and out all the time.

Lord McNally: Which particular reference is the noble Lord asking about?

Lord Clinton-Davis: The noble Lord referred to other provisions which could be made by the judiciary in relation to Amendment 9.

Lord McNally: Well—

Lord Ponsonby of Shulbrede: Perhaps I may assist the noble Lord.

13 Nov 2012 : Column 1435

Lord McNally: If the noble Lord is going to help me, I will certainly sit down.

Lord Ponsonby of Shulbrede: Yes, I was going to help the noble Lord. There are nine listed in that list whereas there are 12 possible as part of the community order. Maybe that is what the noble Lord, Lord Clinton-Davis, meant: the additional three that are not listed.

Lord McNally: I will take that lifeline gratefully, but if there are other matters I will write to the noble Lord. I still cannot find the exact line.

It was requirements other than unpaid work, curfews or exclusions. I am now back on track. That takes us back to the point—we are now going full circle. Obviously, the concept of punishment is more likely to mean curfews, unpaid work, exclusions et cetera but, as we discussed earlier, it may be that there are other impositions which, for that particular offender, would be seen as a punishment. The court would have that flexibility to so define them. I hope that helps and I am sorry that I lost the thread. I am assured that I am on page 8. These notes are extremely useful.

I apologise to the noble Lord, Lord Clinton-Davis, for implying that he had not been an assiduous attendee. That was cheap. He asked a good question and I hope that I have now clarified it.

The point was that I was referring to the research that we had done. The consensus was that for the majority of offenders certain requirements are likely to be more punitive than others. As I said, the requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government expect to see an increase in those measures.

Finally, on Amendment 11, I am happy to reassure noble Lords that it is not the Government’s intention to detract from the court’s existing obligation to have regard to the five purposes of sentencing currently set out in Section 142(1) of the Criminal Justice Act 2003. If these provisions are agreed by both Houses, courts will continue to be required to have regard to all five purposes, whether that is punishment, rehabilitation, reparation, and so on. It will continue to be a matter for courts as to what weight they place on each requirement when sentencing a particular offender.

I remind noble Lords, though, that some purposes are likely to be more relevant than others for particular sentencing powers. For example, courts’ powers to discharge offenders absolutely or conditionally are predicated on the assumption that, in the circumstances of the case, it is inexpedient to inflict punishment. Similarly, while a fine can punish and deter an offender, it may do little towards the purpose of public protection. At the other end of the scale, I am sure that noble Lords will agree that for any offender, the deprivation of liberty that results from an immediate custodial sentence remains and represents a punishment.

In these examples, the nature of the sentence being considered may draw courts’ attention to some purposes of sentencing over others, but courts are still bound to weigh the relevance of all five purposes of sentencing. The same is true of these provisions. While courts will be required to determine whether the circumstances of

13 Nov 2012 : Column 1436

the offence and the offender justify imposing a requirement for the purpose of punishment, they will still have to weigh this against the relevance of other purposes when determining the overall sentence. Nothing in this requirement prevents a court imposing a single requirement that fulfils multiple purposes of sentencing or imposing multiple requirements to meet multiple purposes.

I hope I have been able to reassure the noble Lord, Lord Rosser. I will of course read these debates carefully. I hope that noble Lords will read them, too, because they will find a recurring theme of flexibility and trust in the judiciary and its judgment which should deflect some of the worst fears that have been expressed about our intentions. Our intention is to carry forward a rehabilitation revolution and put effective community sentencing at the heart of that. I fully appreciate that this House, particularly in these two debates, has done its proper job of fine-toothed combing what we propose and seeking assurances about our intentions. I hope that, on reflection, noble Lords will feel that, as it will work and with the flexibility we are building in, some of their concerns are not justified. I hope that the noble Lord will withdraw his amendment.

Baroness Hamwee: My Lords, can my noble friend go just slightly further into Section 142? I indicated I had realised that my drafting was not what it should have been. I have only just realised that Section 142(2) says that subsection (1), which is the five principles, does not apply,

“to an offence the sentence for which is fixed by law”.

My concern is that the punitive elements imposed by the new schedule might be construed as being fixed by law and therefore override subsection (1).

My noble friend has been very good in not yet teasing me about the fact that all the arguments I made about punitive elements could be made against me on the issue of rehabilitation because they are within this schedule as well. The arguments could go both ways. I have asked my noble friend a pretty technical question that I wanted to get on the record. He seems to be getting some advice but if he feels that this needs to wait, I would be happy to do so. It is not fair of me to have bowled him so big a googly.

Lord McNally: I shall simply blame my Box advisers if there was an opportunity to tease my noble friend which they did not draw to my attention. Perhaps there will be opportunity when we get to Report. I am always in awe of the assiduity with which my noble friend approaches her task. I will have a look at the point that she has made in the cold light of Hansard. The hot message from the Box is that the punitive element will not be a sentence fixed by law, but if there is any reason to clarify or modify that, I will write to my noble friend and make the letter available to the rest of the Committee.