Lord Rosser: My Lords, the Minister expressed the hope that we would read the debate carefully. I would have thought he accepted that I read them carefully—I have managed to quote from his speeches repeatedly. Quoting back at him precisely what he said is the strongest part of my case. I appreciate that in the light

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of the Minister’s explanation every other Member of your Lordships’ House may be completely clear, but there is one Member who is certainly not clear. As I understand it, the Minister has accepted that the case he referred to—that of a person who never got up in his life before noon might classify learning to read and write as a punishment and therefore a requirement to take a course developing reading and writing skills being put in a community order—could be regarded as a punishment under the terms of this Bill. I think that is what the Minister said when he responded to that specific question. Perhaps he would confirm that.

Lord McNally: Yes. The noble Lord seems to be having difficulty. Yes, if the person turns up and learns to read and write, that is a good bargain. We are trying to get rid of the community sentence that suggests that someone clears up rubbish, but after two days he does not turn up and nobody follows it up. The only thing that happens—as I mentioned to the noble Lord, Lord Reid, in the last debate—is that the offender takes the orange jacket to wear as a fashion item at the Saturday night dance. It is that contempt for community sentencing that we are trying to get rid of, but I have no trouble with the illustration that the noble Lord gives, as long as the punishment or the purpose is followed through. The noble Lord knows the problem of illiteracy. If we can build into community sentencing a real sentence with teeth which makes particularly young offenders learn to read and write, it could be a turning point in their lives. The noble Lord does not set me any kind of difficult question by asking for that clarification, as long as the community sentence is effective.

Lord Rosser: The Minister is confusing two things. We are dealing with part of the schedule that refers to a requirement that would be regarded as a punishment. It has been defined elsewhere as, for example, a curfew, unpaid work or an exclusion. The Minister has now agreed—and it is presumably now on the record—that this could be extended to include the case of somebody given a requirement to learn to read and write, and that that could be regarded as a punishment. What the noble Lord then went on to say has nothing whatever to do with the part of the schedule that we are discussing, but with his concerns about people given a punishment. He quoted unpaid work, because he referred to picking up litter or something. That is unpaid work, which is defined as a punishment even in the noble Lord’s definition. However, making sure that it is carried out is totally different from what we are talking about in this part of the schedule. So I do not know why the noble Lord brought that in as an answer to my point.

He says that sentencers will have a degree of flexibility. If that is the case, why did he not accept the earlier amendments to change the word “exceptional”, in one case to “particular” and in another to “specified”? He would not move on that, yet now says, for example, that the kind of programme he referred to could be regarded as a punishment. I do not know why he is not prepared to accept Amendment 9 because it says,

“a punishment requirement may include”,

and it refers to “an accredited programme”. Of course, the answer is that the key thing the Minister has not budged on when he seeks to say that the sentencers

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will have discretion, is that 95% of cases will be regarded as the norm and will have the punishment element. The Minister will still put on a limit and say that only 5% should be regarded as exceptional. If he was prepared to accept Amendment 9, he would remove any doubt about that and back up his statement that a court may be able to take a view that a community order—for example, a requirement to take a course developing reading and writing skills—was sufficient and could be regarded as a punishment.

However, the guidance that the courts will get on sentencing from the pre-sentence report will be based on what the Government, through NOMS, want to tell the probation service. Clearly the probation service will be told that only in exceptional circumstances can a community order not recommend unpaid work, a curfew or an exclusion. To come back to what the Minister quoted, the ability of a court to decide on a community order that requires developing reading and writing skills is going to be very limited, despite what the Minister said about the sentencers having discretion. The significance of the fact that the Minister was not prepared to accept either amendment to change the guidelines to “particular” or “specified” gave the game away.

The Minister wants it both ways. He wants to stand at the Dispatch Box and say that accredited programmes could be regarded as a punishment and give the impression that sentencers will have a lot of discretion, when we know that they will not. On the other hand, he wants to make sure that exceptional circumstances really are very exceptional indeed. I have been asked to decide whether to withdraw the amendment. Of course, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendments 3A to 6 not moved.

5.45 pm

Amendment 7

Moved by Baroness Hamwee

7: Schedule 16, page 251, line 14, at end insert—

“(2C) Before including any requirement falling within subsection (2A), the court must consider whether, in the circumstances of the case, the requirement is compatible with any requirement imposed or which it determines shall be imposed pursuant to subsection (1).”

Baroness Hamwee: My Lords, I shall also speak to Amendment 10. This can be brief, because I think the Minister has already pretty much given me what I sought. Amendment 7 provides that before any of the new requirements are included in an order, the court must consider whether it is compatible with other requirements that it is thinking about imposing as part of a community order. I took this from Section 177(6) of the Criminal Justice Act 2003, to which the Minister has already referred, and I think he has given me the acknowledgment I want. However, he will understand that I want to ensure that the punitive element is compatible with other elements of the sentence and does not undermine or negate them. As I have indicated, one might argue the same about the rehabilitative elements, but I am focused on the punitive.

Amendment 10 refers to the provision in the Coroners and Justice Act about sentencing guidelines. Section 120 provides for sentencing guidelines about certain matters

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and makes special arrangements for the guidelines that fall within, I think, subsection (3), including publication in draft of the guidelines and consultation, with specific consultees. In this amendment, I seek to add these new elements to that rather short list. I tabled this amendment in my name and that of my noble friend Lady Linklater before seeing the Minister’s letter following our previous debate on the Bill. I understand that he intends to explore the sentencing guidelines with the Sentencing Council, which probably gives me as much as I can expect at this stage. I beg to move.

Lord McNally: My Lords, I had a witty response for the noble Lord, Lord Rosser, but it will have to wait. My best responses usually come about halfway home when I think, “Damn”.

This group of amendments looks at how the provisions relating to a mandatory punitive element will sit alongside existing features of the sentencing framework. Amendment 7 would require courts to consider, before imposing an element that meets the purpose of punishing an offender, whether that requirement is compatible with any other requirement that the court wishes to impose as part of the overall community order. I am happy to give an assurance that it is not the Government’s intention that these provisions result in a combination of community order requirements that are manifestly unsuitable for addressing the causes of an individual’s offending. It is clearly right that where a court imposes two or more requirements in combination, those requirements should complement each other rather than cut across each other.

That is why the Government propose 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. I should make it clear that, as a result of these provisions, this requirement would in future be subject to the duty to impose a punitive element. However, that does not change the fact that the courts, having decided on a punitive element, will still have to ensure that, if it is combined with another requirement, that combination is the most suitable for the offender before them.

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. I believe that, taken together, the existing framework already provides the safeguards that my noble friend is seeking.

Amendment 10 would place an explicit duty on the Sentencing Council to prepare sentencing guidelines for courts on the execution of their duty to impose a punitive element within or alongside a community order. I fully understand the intent behind this amendment. Since its creation in 2010, the Sentencing Council has played a vital and valuable role in supporting effective and consistent sentencing by the courts. While the council is of course independent, the Government are committed to exploring with it whether the provisions in this Bill will require changes to existing sentencing

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guidelines. For example, the council has an existing guideline on sentencing powers in the Criminal Justice Act 2003, including community orders. The current guidelines include material defining low, medium and high intensity levels of community order.

While this and other guidelines clearly provide important guidance to the courts, I would not wish the council’s existing, wide-ranging powers to issue sentencing guidelines to become too unwieldy or complex. The current power to issue guidelines has the twin virtues of simplicity and flexibility, while allowing the Government to request that the council considers issuing guidelines on a particular topic. I am happy to make a commitment to my noble friend that the Government will discuss this and other provisions in the Bill with the Sentencing Council. I hope that, on the basis of these assurances, my noble friend will be content to withdraw her amendment.

Baroness Hamwee: My Lords, I certainly shall. I read Hansard afterwards, so I will read what the Minister said to make sure that it was as good as it sounded. I beg leave to withdraw Amendment 7.

Amendment 7 withdrawn.

Amendments 8 to 11A not moved.

Amendment 12

Moved by Baroness Linklater of Butterstone

12: Schedule 16, page 251, line 32, after “to” insert “meet the needs of the victims and”

Baroness Linklater of Butterstone: My Lords, in moving Amendment 12, I shall speak also to Amendment 13. The purpose of Amendment 12 is to insert the phrase “meet the needs of the victims” to make it clear that the aim of the restorative justice requirement being imposed by the court is to include both victim and offender equally, which is after all the point of restorative justice. The amendment seeks to keep the needs of the victim at the centre of the process, where they belong.

It is a very welcome move by the Government that this part of the Bill makes formal provision for restorative justice to take place in this country. These provisions allow for the court to defer sentencing following a guilty plea for a restorative justice conference to take place, when all the necessary conditions are present. Of course, this may not always be the case. For example, all potential participants may not be sure that this is what they really want and they may need more time. However, the principle is being allowed for that restorative justice to be an integral part of the sentencing process and subsequent outcomes.

It has been said, rightly, that this is the biggest development for restorative justice since legislation introducing referral order panels happened in 1999, when those panels were set up to offer RJ to young, first-time low-level offenders via the YOTs. The principle is that when a court chooses a restorative approach, it is made clear that all concerned are involved in the process. This is good practice and is at the heart of what restorative conferencing is about: what the

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circumstances of the crime were both from the offender’s point of view and what it has meant to the victim. It involves developing a realisation by both parties of how and why the event occurred and what it meant to all concerned, both at the time and later. This then has a bearing on decisions of how amends can be made. It is extremely important that the offender gains an insight of exactly how much pain and trouble has been inflicted and that the victim can describe and explain this in a personal way. That can be extremely surprising to the offender, who has often not considered for a moment the outcome of his actions. At the same time, this can be a great help to the victim in coming to terms with the event and moving on in their life. I have sat in on restorative conferences and seen such processes at work. They are truly remarkable.

This amendment seeks to ensure that a restorative conference is a totally inclusive exercise, which is the essence of RJ. Indeed, it underlines the Government’s oft-repeated objective of focusing more on the needs of victims than in the past. There are huge challenges ahead to establish the framework, skills, understanding, acceptance and confidence of all concerned in the realisation of this plan, not to speak of the costs. It remains incumbent on the Government to spell out in much more detail exactly what their plans are in all these areas.

Amendment 13 involves deleting “Imposition” and substituting “Administration”. This follows on logically from my earlier argument; namely, that a restorative requirement should be administered and not imposed by the court. Indeed, the fact that the Government are using words in the Bill such as “Imposition” in this context demonstrates that they, too, have some way to go in understanding what RJ is really all about. This involves proper planning and can take time. It is essential that the participants in a restorative process have consented to do so, and that it has not been imposed or forced in any way. The practical reality is that this may take some time and may not always be possible before a court hearing or before a guilty plea has been entered. Some victims may not have been contacted or they may not be sure that this is what they want and need time to think, particularly if they do not know in advance whether there will be a guilty plea. There are also the practicalities of contacting others who may be involved as secondary victims of the crime, such as family members or supporters. Finally, there is the preparatory work with all the participants. Therefore, importantly, this amendment allows for a deferral period when all this work can be carried out to ensure that the best outcomes of the process can be realised.

6 pm

I said at Second Reading that I believe it is vital for two reasons that proper provision is in place for the administration of restorative justice. First, we want it to succeed. If we do not, then, by default, we will set it back for a long time as belief and confidence in this subtle and sensitive process will be badly damaged. Secondly, success is important because in those places around the country where restorative conferences take place, they have been found to be very effective generally and are frequently transformational. The figures are

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encouraging: 70% of victims offered RJ at the pre-sentence stage said it had come at the right time for them and 85% of those taking part said they were satisfied with the experience. It has led to a 14% reduction in the frequency of reoffending, which is better than prison or even community sentencing. Sentencers welcomed pre-sentence conferencing because it provided significant information to aid their decision-making.

There is still a long way to go to deliver and hone the quality of RJ provision. Crucially, sentencers must understand, appreciate and buy into what it has to offer, which will mean training. They must know that the Government’s intention is that the option to defer for RJ should be available in all types of case, not just in those that are on the cusp of custody. That could be quite a facer for some sentencers. Everyone will need a lot of guidance. The number of well qualified, experienced facilitators must be developed. Support for victims is vital and the whole exercise must be properly and well funded.

Overall, the development of confidence will be critical, but we know, beyond peradventure, that it is an experience which can be life-changing. The Government’s commitment to RJ, which is now being put into statute, must be the key to its proper development. I commend these amendments to the Minister in the hope of seeing the Government getting things right at the start of this important policy initiative. I beg to move.

Lord Ahmad of Wimbledon: My Lords, I welcome the widespread support restorative justice has received across both Houses. Through this Bill, Her Majesty’s Government aim to empower victims by giving them an opportunity to be heard, and also to ensure that offenders understand the impact of their actions on others and, more importantly perhaps, to motivate them to change. We seem to be in agreement that we should be working towards encouraging restorative justice to be used more widely—a sentiment that I know echoes across this House as well as the other place— not as a replacement to, but in parallel with, existing sentencing powers.

As we have heard from my noble friend Lady Linklater, Amendment 12 adds an explicit reference to the needs of the victim to our definition of restorative justice requirements, which is a sentiment I strongly relate to. The Government are aware that restorative justice can be very beneficial to victims, and our research in pilots demonstrates that 85% of victims participating in direct restorative justice conferencing with their offenders were satisfied, so we entirely agree that restorative justice, when used appropriately, can—most importantly—meet the needs of victims.

Therefore, I cannot argue with this point, and if my noble friend Lady Linklater is willing to withdraw Amendment 12, I will consider it in advance of Report and return to this subject at that time. I am sure that my noble friend will understand that I cannot give an explicit undertaking at this stage to bring forward a government amendment but, as I have said, the Government will give sympathetic consideration to the points she has strongly made.

On Amendment 13, I hope that it is fair to say that, as my noble friend acknowledged, we are at a turning point in relation to restorative justice. The Government

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are attempting to take a victim-led approach to restorative justice and to move away from the offender-led process. We are also making sure that the victim is aware of, and considers, restorative justice as an option much earlier in the process.

This amendment would allow the court to defer sentencing for restorative justice even when the agreement of all the parties, including the victim, has not been obtained. This is despite agreement being necessary for the activity to take place. The Government take the view that it is important that the victim is able to consider and decide whether to give his or her consent before the court defers sentence. We are therefore not convinced that a court would want to defer sentencing unless everyone was signed up to it, as this could ultimately lead to lengthy delays, which are in no one’s interest. We must also remember that additional delays can result in increased costs.

In addition to concerns that the amendment could increase court time, we need to consider the impact on the victim of deferring a sentence. This is about the victim. In many cases, the victim will want speedy justice and closure, if for nothing else than in order to put the whole episode behind them. Any victim of crime shares that sentiment. I wonder whether deferment without the victim’s agreement could look as if restorative justice was being imposed on the victim in the sense that, “We’ve already delayed the court case for you, so you may well wish to consent”.

As I said earlier, I welcome the strong support for restorative justice from across the House and particularly thank my noble friend Lady Linklater for tabling her amendments. Support for the victim is vital, and I totally align myself with that sentiment. In light of the points I have made and my commitment further to consider Amendment 12, I would be grateful if my noble friend Lady Linklater would withdraw her amendment.

Baroness Linklater of Butterstone: My Lords, I thank the Minister for that response. I am glad that, overall, he has accepted my arguments. I shall have to read Hansard carefully and perhaps ask a few more questions about deferral because it is a new element of reticence that I was not expecting. I am therefore likely to want to come back to this subject, but in the mean time, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendment 13 not moved.

Amendment 14

Moved by Baroness Linklater of Butterstone

14: Schedule 16, page 252, line 6, at end insert—

“Part 2AProvision for female offenders

7A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders.

(2) Provision under sub-paragraph (1) shall include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour in groups consisting only of women.”

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Baroness Linklater of Butterstone: My Lords, I will speak about making provision for women—“female offenders”, as the Bill calls them. These new clauses are intended to make good the remarkable lack of reference in this Bill to women who offend, which is for me and many others impossible to understand. They also echo the thinking and recommendations of the Corston report, which were accepted five years ago by the previous Government and were generally welcomed around the country. Like many of my colleagues and friends in the House, I earnestly wish that some moves can now be made to address these issues which are so long overdue.

New Section 1ZA(7A)(1), to be inserted into the Powers of Criminal Courts (Sentencing) Act 2000 under Amendment 14, simply affirms that:

“Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders”,

because it is now generally understood that existing provision, whether in prison or in the community, has been—and still is—largely designed for men. Therefore, it is totally unsuitable for women, as should be absolutely self-evident. Women’s needs are quite different from men’s and the provision must be different.

Jean Corston recommended that there should be separate, specially tailored services locally available, so that the disruption to family life, particularly to children, is minimised as far as is humanly possible. It is self-evident that the needs of the children and families of women who have offended have a huge bearing on their capacity to attend programmes, for programmes to be effective and for reoffending to be reduced. It also has a crucial impact on the risk of orders being breached.

Women’s needs are extremely complex and need correspondingly tailored and appropriate responses. As we heard in a previous debate, most such women are the victims of domestic violence and sexual abuse, which demands quite different skill sets on the part of the providers of services from those required for men. Currently, we simply do not have adequate provision throughout the country to meet the extent of this need. Therefore, we are failing these very vulnerable women. We are also failing our society’s needs and the needs of the many children involved.

Of course, there are probation trusts which make provision for women in their patch. I have visited some remarkably effective and impressive initiatives where women’s centres are turning lives around. I have visited centres where the women themselves are instrumental in making this happen through the understanding and support that they give each other, as well as the skill and sensitive work done by the probation services concerned. But the probation services are not required to do this: hence, the need for this amendment.

The recent joint inspection report on the use of alternatives to custody for women offenders reported a lack of women-specific provision for unpaid work and offending behaviour programmes. However, it said that women-only provision, where available, is often very successful. I know this to be true and have met women who have continued to visit their centre long past the end of their required attendance to help other women who are still under an order.

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The second part of this amendment follows on from what I have just said. It states that each probation trust should be able,

“to carry out unpaid work”,

in women-only groups, as well as any offending behaviour work, such as drug and alcohol addiction programmes or domestic violence programmes. For the one or two women in an otherwise male group doing unpaid work, it is likely to be extremely threatening, intimidating and unproductive, and quite likely to end up with the order being breached. Tragically, that is likely to result in a custodial sentence. Indeed, a striking feature of the female prison population is the high proportion of women in prison for breaching a court order—an order originally imposed for an offence that might never have attracted a custodial sentence in the first place. That is a tragic irony.

I hope that the Minister will take this away and look at this serious omission in the Bill. It is not too late to rectify it and, in so doing, he would attract support and heartfelt relief the length and breadth of this land. I beg to move.

6.15 pm

Lord Ramsbotham: My Lords, in supporting Amendment 14, to which I have added my name, I shall speak also to Amendment 20, which noble Lords will note has virtually the same wording as Amendment 14 and for the same reasons. As the noble Baroness, Lady Linklater, has made abundantly clear, the needs of women as regards community sentences in particular are currently not being satisfied. Indeed, we are still waiting for the Government’s paper on strategic priorities for women, which we have been expecting for some time.

In his answers to the debate we had on 30 October, the Minister mentioned that there had been success with young offenders. In fact, for young offenders, one has to read “children” because the success has been with the under-18s, led by the Youth Justice Board. There is then a gap, which is variously described as being those between 18 and 21 or 18 and 25. That debate has been raging for ages. It means that there is a gap in the provision for people of a very vulnerable age who are in transition to adulthood. I must commend to the House the remarkable work done by the alliance which has the name Transition to Adulthood. I shall mention in particular two documents published by the alliance. One is called Pathways from Crime: Ten steps to a more effective approach for young adults in the criminal justice process. The other is Going for Gold, which was published last week. It has a bronze, silver and gold approach to community sentencing, which I commend to the Government.

In commenting on community sentences, Pathways from Crime recommends:

“The few existing examples of young adult specific community interventions that exist across the country should be replicated nationally, and similar effective interventions should be available to all sentencers when sentencing a young adult”.

I say “hear, hear” to that. I admit that I was slightly, I hope, confused when in an answer on 30 May the Minister hinted that instead of young adult community sentences being handed to the probation service to administer, they were going to be handed to local

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authorities. I am worried about that because one of the recent successes in this neglected area, as the House has heard many times, is the intensive alternatives to custody programme. It has been piloted in Manchester, South Yorkshire, London and other places, and was very valuably evaluated by Matrix Knowledge, which proved the value that the programme presented in terms of preventing reoffending.

The probation service has neglected this group for too long, although now, having tasted success with these programmes, it is very anxious to get into the game. I believe it is very important that, instead of leaving provision for this group up to individual local authorities, it should be made clearly the responsibility of the probation service so that intensive alternatives to custody and other programmes can be developed nationally and, therefore, have some hope of consistency.

I am very glad that the subject has been studied with such assiduity by Transition to Adulthood because, in its work, it is filling in a great gap which has existed for too long. On 25 July, the Minister told me that there was going to be a commissioning strategy for young adults from the Ministry of Justice, which we still await. However, I hope that by raising the issue at this stage two very important gaps—women and young adults—can be properly looked after in the community sentencing arrangements, which the Government say in Schedule 16 they intend to introduce.

Baroness Howe of Idlicote: My Lords, I will be very brief. I support both the amendments. They are vital and I hope that they will be adopted fully by the Government. As the noble Baroness, Lady Linklater of Butterstone, has said, it is an extraordinary situation, after all the reports that there have been over the years, that still no special arrangements have been made for women offenders. We know that so many of them have suffered. Around half the women in prison have suffered domestic violence and one in three has been sexually abused. Most of them entering custody have committed non-violent offences. I remember going around a women’s unit some time ago where a radio and television station had been set up and they were being trained to be interviewers as well as the technicians on it. I was asked quite deliberately why I thought it was that women got more severe sentences than men who had committed equivalent crimes. I did not have much of an answer at that stage, but when I checked on it I found that what they said was very accurate. They were being penalised much more strongly.

The noble Baroness, Lady Linklater, made a very important point about the children affected by this. It is absurd to break up families, particularly those that consist of just mothers and children. Quite often the fathers fall by the wayside when the mother goes in to prison. It is not just the break-up of the home that is traumatic—the home is often repossessed—but there is also the effect on the children of suddenly losing their mother and perhaps having to go into care. That is quite unnecessary if working together with the mother and the family can produce the best answer. I am quite certain that in the right circumstances it can.

I believe that Amendment 20, spoken to so effectively by my noble friend Lord Ramsbotham, is also crucial. We know that the cycle of deprivation concentrates on

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that particular group that comes in and out of prison, and so many of them are in that young age group. We are told that some of the reasons for this may well be that a lot of facilities available for children begin to fade away—the Prison Reform Trust has done an excellent briefing on all of this—and yet these children still have time to mature into adults and do not go through that transition until full adulthood which is reached at the age of about 22.

I hope that some of the experiments that have been reported on will be taken to heart. You have to have both the experienced and the expert there to help the young. Finding jobs or training is crucial if they are to be given an alternative to going back into the cycle. As well as the help of professionals, back-up with things such as HomeStart and people who know how to be supportive within a family are crucial for getting the young offender back on the right path. As we have heard already, there are experiments that have worked. Let us please ask the Government to back them. I am sure that they have exactly the same interests as we all have in this direction, so it is just a question of making certain that we get the right facilities and the right framework to enable this to happen.

Lord Rosser: I will be very brief and say that we support the thrust of what has been said. We will listen carefully to the Minister’s reply, particularly if the Minister feels unable to accept the amendments.

Lord McNally: My Lords, this has been an important debate. It is four-square with two instincts that I had when I came in to this job two and a half years ago and they have been reinforced by all the experiences that I have had over the past 30 months. The first relates to the point made by the noble Baroness, Lady Linklater, that women are different and need a different response from our criminal justice system. The other relates to the age group of young adult offenders—whether it is 18 to 21 or 18 to 25. Not only is that the age of a transition to adulthood; it can also be a transition to a lifetime in crime. It has struck me time and again that if only we could extend some of the lessons that we have learnt from the treatment of young offenders under the age of 18 into that age group, we might be able to have a similar impact.

One thing that is encouraging concerns my right honourable friend Chris Grayling, the new Lord Chancellor and Secretary of State for Justice. I have been impressed by the freshness of his thinking in some of these areas. It may be that, like me, he has the benefit of not being a lawyer and comes to it with a certain action-this-day, can-do approach. One thing I will accept that the noble Lord, Lord Ramsbotham, referred to earlier. I will propose to the Lord Chancellor that he comes to this end of the building and that we have a meeting. I think that it will be to our mutual benefit.

On the point about women, raised by the noble Baroness, Lady Linklater, and the noble Lord, Lord Ramsbotham, I make the point that women now have a new champion in the Ministry of Justice, Helen Grant MP. While Helen has been working her way into the job, it has caused a slight delay in the publication

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of the women’s strategy. She is entirely comfortable with the content and direction. As for when it will be ready, I am not sure which of the civil servants’ euphemisms I am allowed to use—before Christmas, shortly, in December—but work is well under way and she is taking a close and personal interest. I think that it will be greatly to the advantage of the priority that women are given within the Ministry of Justice that Helen is now in place. I also emphasise that, in developing that women’s strategy, we build on the work done by the noble Baroness, Lady Corston, and the template that she laid down. As with the previous Administration, there is a difficulty with resources in some of our ambitions, but that does not take away from the fact that we are looking at a real and effective strategy, building on the Corston proposals and taking them forward.

Likewise, young adult offenders are a very important group, and if we are going to succeed in a rehabilitation revolution it is in that group that we have to find our success. We must explore ideas to get effective programmes for them. I thank my noble friend Lady Linklater and the noble Lord, Lord Ramsbotham, for drawing the Committee’s attention to these important issues. This Government share their belief that it is important that the criminal justice system is properly responsive to the needs of female and young adult offenders. If we are successfully to rehabilitate both groups of offenders, it is important that we take into account the different profiles of women and young adult offenders, including the factors associated with their offending.

6.30 pm

The Government are committed to ensuring that we, in conjunction with the voluntary and private sectors, deliver appropriate services that address the needs of female offenders. To support this, the Government have provided an additional £3.78 million to probation trusts to fund 31 women’s community services in 2012-13. These services aim to address the underlying factors associated with women’s offending, including substance misuse, mental health issues and histories of domestic violence and abuse. Furthermore, these centres offer options for the courts to support and complement the statutory work of probation trusts in the delivery of community and suspended sentence orders, and to support women in the successful completion of post-release licences. This additional funding is now embedded in the National Offender Management Service’s community budget baselines to allow for continued support of provision for women.

Probation trusts are already required by the National Offender Management Service Commissioning Intentions document, to demonstrate how they will ensure the appropriate provision of women’s services. All probation trusts have met this year’s requirement to provide appropriate provision for women and there are many good examples of a gender-specific approach to female offenders in the community, as a number of noble Lords have said. Furthermore, the unpaid work operating manual issued by the National Offender Management Service requires that women should be allocated to work placements that take account of their needs. This may be a placement with a beneficiary agency that is sensitive to the needs of women, or a specific

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female-only group placement. The manual also requires that when planning provision for women, the view of female offenders themselves must be taken into account, with the presumption that they will not be required to work alongside male offenders.

I would also like to add that the small number of female offenders in some trust areas means that female-only unpaid work programmes may not always be the most appropriate way of addressing their needs. It could, for example, result in women having to travel long distances. This has cost implications for these women, and could particularly create difficulties where a woman has childcare responsibilities. It is therefore essential that probation trusts have the freedom to make appropriate arrangements for female offenders that reflect local needs.

On Amendment 20 and young adult offenders, I can confirm that this Government share the concerns raised by the noble Lord, Lord Ramsbotham, and are committed to ensuring we deliver services that take account of young adult offenders’ particular needs. We recognise that transition between youth and adult services is a potential point of vulnerability for young people and we are already working hard to ensure more consistent processes for supporting young people who are transferring between systems. For example, in September the Youth Justice Board launched a transitions framework, which provides guidance to those working with young adults who are transferring from youth offending teams to probation services. Furthermore, we are investing £3.7 million in a new youth to adult portal to improve how secure information about young adults is transferred from youth offending teams to both probation services and young offender institutions. Already, users have provided very positive feedback about the impact that this is having on their ability to respond to the individual needs of young adult offenders.

In addition to these initiatives, the National Offender Management Service is developing a specific commissioning strategy for young adults through its programme of work to define its commissioning intentions. Our initial thinking is that cognitive skills training and work to prevent recreational drug usage developing into drug dependency are particularly beneficial within this age group. However, individual assessment remains just as important with this group as it is with older adults, and the assessment can help to determine whether these or other interventions are most appropriate.

I hope I have demonstrated that this Government take seriously the needs of female and young adult offenders and that a bespoke statutory duty to this end is not required. In light of the points I have raised, I hope that my noble friend Lady Linklater will agree to withdraw her amendment and the noble Lord, Lord Ramsbotham, will agree not to move his. I can assure them that the arguments that they have deployed are in sympathy with the direction of travel of Helen Grant as regards women and of the Secretary of State as regards young offenders. I shall reflect whether that is best handled in amendments as proposed in this Bill or by other means. I hope that in that spirit the noble Baroness will withdraw her amendment and I shall ponder on the points made in this debate.

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Baroness Linklater of Butterstone: My Lords, I am very grateful to have heard such a positive response from my noble friend and to hear him indeed affirm that women are different. I also thought interesting, although it was a slightly tangential point, the suggestion that we should extent the reach of the YJB to young adult women because they are indeed, in many respects, still children. I have to say that I have 40 year-old children, and I still call them children.

I want to thank the noble Lord, Lord Ramsbotham. The intensive alternatives to custody, which I have seen at work, are fantastically effective and should definitely be extended. I am very keen on the work of T2A as well. I welcome my noble friend the Minister’s suggestion of a meeting with Chris Grayling. I think we would welcome that enormously. I, too, have written to him and got no response. But I am sure that my noble friend the Minister will have no problem in that department. I am aware of Helen Grant being a good ally as a woman with responsibility at the other end.

Worryingly but not unexpectedly, allusion was made to resources. The argument about resourcing is that, of course, especially in this field and especially with the range of vulnerable people involved tangentially—that is, children and wider families when women are concerned—money spent at the right end can have a huge ripple effect when it is spent on issues facing women who may not go into custody but who certainly have to carry out a community sentence. If that is badly handled, it really can affect their lives. Money spent early is money well spent and saves a very great deal in terms of the quality, expectations and prospects of people’s lives, particularly the lives of children.

I still did not hear any response to my suggestion that probation trusts should be required to make appropriate provision and be appropriately funded for doing so, but for the moment I am happy to thank my noble friend once again for his positive response. For the time being, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Amendment 15

Moved by Baroness Hamwee

15: Schedule 16, page 254, line 33, at end insert “the use or”

Baroness Hamwee: In moving Amendment 15, I will speak also to Amendment 16. Again, I hope to be brief.

This takes us to the provisions about electronic monitoring, the first of which provides in new Section 215A(1) that there should be a code of practice relating to the processing—I stress “processing”—of

“data gathered in the course of … monitoring … offenders under electronic monitoring requirements”.

My amendment would extend this code to the use of data. I hope that it is pretty obvious what that is about. Processing is a mechanical matter. The use of data is how you apply what you have discovered. That takes us into civil liberties areas. I hope that the Minister will acknowledge that this is something more than processing and that we can find a way to cover it.

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Amendment 16 provides for consultation in preparing a code. The Secretary of State will have the obligation to issue the code. I remember that in the Protection of Freedoms Act there was provision for consultation by the Secretary of State in developing a code of practice relating to camera surveillance systems. This amendment is very closely based on that provision. I have listed a number of post-holders and organisations that will have a particular point of view on what needs to be considered when electronic monitoring is to be a part of a disposal.

Earlier, the noble Lord, Lord Ramsbotham, told us that he would have to leave. I say in his absence that I am extremely flattered that he has added his name to a piece of my drafting.

Lord Clinton-Davis: If the Minister were prepared to give an assurance that consultation will be wide and effectively encompass all the organisations that are listed, would that be satisfactory?

Baroness Hamwee: My Lords, I would like to hear what the Minister has to say about each of the organisations. It will not take very much more of the Committee’s time. I do not know whether the noble Lord was trying to save time.

NOMS and the probation service will have views about the impact of monitoring on individual offenders who, as we know, are likely to have very different characteristics. The Lord Chief Justice has a responsibility for the work of sentencers and therefore will, I am sure, wish to make comments to the Secretary of State about how sentencers will use this tool. The police, as the law enforcers, will have a view and the Information Commissioner and the Chief Surveillance Commissioner have important civil liberties obligations and responsibilities. I will listen to what the Minister has to say and I hope to receive some assurances but it is important to put on record why I have chosen this list of candidates, together with, as I say,

“such other persons as the Secretary of State considers appropriate”.

I beg to move.

Baroness Linklater of Butterstone: My Lords, I support my noble friend Lady Hamwee. As regards the list in Amendment 16, the probation service represents a very important element in the consultation and the setting up of the code. It is clear that supervision is appropriate only when it is coupled with other requirements, particularly probation support. In fact, it is a great mistake for electronic monitoring to be used without proper contact being established with a probation officer. That increases breach rates by 58% and higher levels of reoffending by 21%. You cannot just leave this matter to a bit of technology. It is very important that those who have direct contact with young, or not so young, people in this situation also have the support of people in the probation service who can add their skills and advice to this process.

6.45 pm

Lord Ahmad of Wimbledon: My Lords, I speak to Amendments 15 and 16. I noted with some amusement that my noble friend Lady Linklater said that her

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children were in their forties, which made me feel like a mere child on the Front Bench.

Amendments 15 and 16 in the name of my noble friend Lady Hamwee relate to the duty on the Secretary of State to issue a code of practice regarding the processing of data gathered under an electronic monitoring requirement imposed for either the purpose of monitoring compliance or monitoring whereabouts in short tracking offenders.

As my noble friend said, Amendment 15 is intended to extend the scope of the code of practice to include the use of data as well as the processing of data. In fact, the code itself would be designed to ensure such use meets the principles and obligations set out in the Data Protection Act 1998 for the processing of such data. “Processing” is defined in Section 1(1) of that Act to include the “obtaining, recording or holding” of data, including, among other things, the

“use of the information or data”.

To add the words “use of” to this provision could call into question the breadth of “processing” in relation to the code and could have the effect of narrowing the requirement, which I am sure is not the intention of my noble friend.

The code will undoubtedly cover the use of data obtained under this provision. It will fully and clearly set out the expectations, safeguards and broad responsibilities for the collection, retention, and sharing of data. For example, we envisage that the code will set out the circumstances in which it may be permissible to share data with the police to assist with crime detection.

The noble Lord, Lord Clinton-Davis, correctly pre-empted what I am going to say on Amendment 16. I am always astonished by the great wisdom in this House. Indeed, I can give the assurance that the Government fully recognise the need to consult all stakeholders during the development of the code. Accordingly, the Government intend to consult the Information Commissioner as well as all the other interested parties listed in the amendment to ensure that the framework for processing such data is transparent and lawful while being of value to organisations that are going to use it at an operational level. In the interests of simplicity and flexibility, and given the Government’s undertaking to consult key parties, I feel that this amendment is not needed. Therefore, I hope that I have been able to reassure my noble friend on both counts and that she will be willing to withdraw her amendment.

Baroness Hamwee: My Lords, I am sorry that I did not do my homework adequately on the first of the amendments and I am grateful for the clarification. On the second of the amendments, will the noble Lord repeat what the Government will consult on? Although he said that the Government would consult these organisations, I was not sure that that extended to the point I made about the impact on offenders; in other words, pulling this into the whole package of taking us forward on the rehabilitative route. Towards the end of his response, the noble Lord explained what the consultation would be.

Lord Ahmad of Wimbledon: My Lords, the Government will consult on the full content of the code of practice. My noble friend listed several organisations, including

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the police and the Information Commissioner. All those listed in the amendment will form part of the consultation.

Baroness Hamwee: My Lords, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16 not moved.

Amendment 17

Moved by Baroness Hamwee

17: Schedule 16, page 257, line 22, leave out “wants” and insert “requires”

Baroness Hamwee: My Lords, Amendment 17 is a small but significant amendment and I am going to be told that the word “wants” is defined somewhere else. We now go into provisions about the disclosure of information. The amendment is to the paragraph allowing for further disclosure, once it has been disclosed through the first few parts of paragraph 27, to another relevant person, which is of course defined,

“who wants social security information or finances information”.

I suggest that “wants” is a very wide term. I can want something but I do not need it. We all know children who “need” sweeties or whatever, but they do not really: they want them. An official could want information because it makes life that much easier. “Requires” would be the proper term here. There should be an appropriate, underlying—I am struggling for a synonym —need, underlying requirement, necessity or something very close to necessity. It should not just make life a bit easier for the person who is asking for it. One might almost have referred, “to another relevant person who asks for it”. That would certainly have been too wide and “wants” is quite close to that. I beg to move.

Baroness Howe of Idlicote: My Lords, when I read the amendment I thought it absolutely appropriate to use the word that has been supplied. I very much hope that the Government will accept “requires” instead of “wants”.

Lord Marks of Henley-on-Thames: My Lords, I speak to Amendments 18 and 19 in my name and that of my noble friend Lady Hamwee.

Amendment 18 concerns information disclosed to a court, under the same paragraph—paragraph 27 of Schedule 16—as my noble friend’s earlier amendment; it relates to social security information and information to be disclosed by HMRC relating to a defendant’s finances. In both cases, the information is disclosed to assist the court in inquiring into the defendant’s financial circumstances. Sub-paragraphs (3) and (5) of paragraph 27 limit the purposes for which the disclosure is to be made and used—broadly for the purpose of assisting the court in dealing with the offender, with a general prohibition on further and wider disclosure. So far, that all seems entirely appropriate, but sub-paragraph (7)(b) appears to allow such information to be disclosed much

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more widely and outside the ambit of the proceedings before the court concerning the defendant, provided only that the information is summarised—what is sometimes called “gisted”—and anonymised by framing it in such a way that the defendant is not identified. That allows disclosure of social security and HMRC information relating to the finances of the offender for purposes other than his sentencing which was the purpose for which the information was originally obtained from the government bodies concerned.

What is the point of sub-paragraph (7)(b)? If there is a point to this collection of information, is this Bill and is this Schedule the place for its introduction? If we are to widen powers to obtain and use information in this gisted and anonymised form, then provisions authorising that should form part of a Bill concerning the collection of such information and not be added by a side wind in this way to a schedule which concerns sentencing and information required to assist the court with that sentencing.

Amendment 19 would ensure that, where social security or financial information about a defendant is obtained from the relevant government departments, the defendant must be shown that information and be told to whom it has been disclosed. It is fundamental that a defendant, about whom confidential financial information is obtained from government in connection with proceedings against him, should be entitled, as of right, to see that information to enable him to challenge and explain it, to know the information upon which the court is asked to act and also to know the identity of anyone to whom it has been disclosed. The paragraph, as drafted, permits such disclosure to him, or at least it does not prohibit it, by sub-paragraph (7)(a), but it does not require it and it should.

Will the Minister consider accepting the amendments or at least take them away and come back with amendments to the same effect?

Lord Ahmad of Wimbledon: My Lords, this group of amendments relates to provisions in Part 6 of Schedule 16 that enable the sharing of data between government departments for the purpose of setting fines and other financial penalties. My noble friend referred to definitions and what is where I will attempt in my response to Amendment 17 to make clear that, at each stage of the process, access to the data we refer to will be limited to only those with appropriate authority and a genuine need to see the data for the purposes of assisting a court that may wish to see it for sentencing purposes.

My noble friend Lady Hamwee referred to the use of the word “wants” in paragraph 27 of Schedule 16. This is intended to ensure consistency with subsections (1), (2) and (3)(a) of Clause 22. We have not used such words as “requires” or “needs” in the Bill because, technically, the court neither requires nor needs access to information held by the Department for Work and Pensions or HMRC. The information in question could be obtained by other means; for example, by requiring the defendant to provide details of their own financial circumstances. The relevant person “wants” the information because it comes directly from the Department for Work and Pensions and HMRC and

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this is the most reliable way of giving the court the accurate information about the defendant’s financial circumstances. It may arise that financial circumstances have changed. There will always be provisions within such proceedings to allow someone in such a situation to be allowed to present an up-to-date position of their financial circumstances.

Turning to Amendment 18, tabled by my noble friend Lord Marks of Henley-on-Thames, I can confirm that Part 6 of Schedule 16 allows for the disclosure of financial information obtained under these provisions in a summary format. Nevertheless, paragraph 27(7)(b) only allows for the publication of financial information if it is in anonymised form. I remind the Committee that under paragraph 28, the publication of any financial information without lawful authority is a criminal offence, punishable by up to six months’ imprisonment.

The purpose of allowing the publication of summarised financial information obtained under this provision is to allow anonymised financial information to be shared for the purposes of research and statistical analysis. This information will be invaluable in helping to identify trends in the criminal justice system and the financial circumstances of offenders.

7 pm

I turn finally to Amendment 19. In practice the information obtained by the court under this provision will be disclosed to the defendant or his representative. Of course, as the noble Lord, Lord Marks, highlighted, the defendant is entitled to know what information the court is relying on in setting his or her sentence and to challenge it if necessary. I can also confirm that a notice will be sent to such defendants, alongside the hearing date notice, informing them that data will be sought on their financial circumstances from either the Department for Work and Pensions or Her Majesty’s Revenue and Customs.

As I have already said, if there is a discrepancy between the information that the defendant provides and the information obtained from either the Department for Work and Pensions or HMRC, the court may wish to confirm with the defendant which information is up to date before sentencing. It will then be a matter for the court to decide on what evidence it relies in sentencing the defendant. However, if a defendant does not attend their hearing and does not submit financial information, it is important that the court has the financial information on the defendant before it makes a sentencing decision. I stress that the financial information will not be part of the evidence used against the defendant to secure a conviction, and the court will have sight of it only if the defendant is convicted. If a conviction is secured, the defendant and his or her representative will be able to see any financial information available to the court.

I assure your Lordships’ House that at each stage of the process access to the data will be limited to those with the appropriate authority and a genuine need to see the data for the purposes of assisting a court that may wish to see the data for sentencing purposes. In practice those will be, for example, court officers who are dealing with the case for the purposes of preparing sentencing information for sentencers and, where the defendant is convicted, magistrates or judges. The data

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will not be accessible to any member of Her Majesty’s Courts & Tribunals Service staff via the IT database on which it will be held.

I hope that in light of these assurances, my noble friends Lady Hamwee and Lord Marks will withdraw or not move their amendments.

Lord Marks of Henley-on-Thames: My Lords, of course I will not press my amendments. Nevertheless, I am not sure that the Minister has answered the point about the defendant’s entitlement to see the information. I accept my noble friend’s assurances that it is the intention of the Government that the information will be disclosed, but there is absolutely no reason why such a provision should not be in the legislation, rather than the current, rather negative, lack of a provision that exists at the moment.

Lord Ahmad of Wimbledon: My Lords, again, I assure my noble friend that the defendant would know of any such use of data. If any legal representative of the defendant wished to access that data, they would also be made available. I hope that we can clarify any other outstanding issues either before or on Report.

Baroness Hamwee: My Lords, it might be useful if at some point we could have a discussion whereby we can understand precisely what all the steps are. Like my noble friend Lord Marks, I am clear about the assurances that have been given, but I am not clear to what extent they are within the wording of the schedule and, even having listened to the Minister, how much they need to be there.

As regards Amendment 17, I will look at the references to the other provisions to which he pointed me when he said that there was a need for consistency. I understand that that is important so as not to suggest there is no difference in provision. I might need to ask him if he would be good enough to spend a little time with me, and perhaps my noble friend Lord Marks, to go through the steps in detail. For the moment, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendments 18 and 19 not moved.

Amendment 20

Tabled by Lord Ramsbotham

20: Schedule 16, page 259, line 18, at end insert—

“Part 6AProvision for young adult offenders

28A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to young adult offenders.

(2) Provision under sub-paragraph (1) shall include provision for services which provide support and rehabilitation appropriate to the level of maturity of young adult offenders and which increases the likelihood of compliance with community orders.

(3) For the purposes of this paragraph “young adult offender” means a person who is aged at least 18 but under 21 when convicted.”

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Baroness Howe of Idlicote: My Lords, my noble friend Lord Ramsbotham has asked me to say that he will of course carefully read Hansard and the Minister’s reply but, at this stage, he does not wish to move the amendment.

Amendment 20 not moved.

Amendment 21

Moved by Lord Rosser

21: Schedule 16, page 260, line 24, at end insert—

“Part 8Reorganisation of the National Probation Service

1 The Offender Management Act 2007 is amended as follows.

2 After section 15, insert—

“15A Power to reorganise the National Probation Service

(1) Any plans to reorganise the Probation Service for England and Wales must be instituted by regulations.

(2) Regulations under subsection (1) shall be subject to the affirmative resolution procedure of each House of Parliament.””

Lord Rosser: My Lords, the purpose of the amendment is to enable the Government to say rather more about their intentions for the future of the probation service, given that an effective and properly resourced probation service will be crucial to delivering the Government’s intentions on community sentencing, which we are discussing, and the decisions of the courts. The Minister also referred to the probation service in our debate on community sentencing on 30 October. The amendment states that any plans to reorganise the probation service must be instituted by regulations, and that those regulations shall be subject to the affirmative resolution procedure of both Houses.

We know that the Minister is a great admirer of the probation service. He told us on 30 October that:

“I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service”.—[Official Report, 30/10/12; col. 549.]

On the face of it, that could be taken to mean that the probation service as we know it today has a long-term future, particularly if it is the Government’s intention to raise the profile, importance and extent of rehabilitation as the means of reducing reoffending. On the other hand, the noble Lord’s words could mean very little.

He said that he could not imagine that any future structure would not draw on the experience and ethos that make it such an excellent service. What exactly did the Minister mean when he said that? One interpretation could be that the Government are nevertheless still looking to hand over to outside contractors large parts of the work currently undertaken by the probation service, and that the experience and ethos to which the Minister referred would be drawn upon because he would expect significant numbers of existing probation staff to be transferred over to those contractors. Is that an interpretation of the Minister’s comments that he would either accept as accurate or not be prepared to exclude?

He said that he was,

“in awe of the responsibilities that our probation officers take on”.

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Yet, as I understand it, the Government have indicated that 60% of probation work will be put out to competitive tender. What then were the responsibilities that the Minister had in mind when he said that, and how many of those responsibilities is it the Government’s intention that the probation service should continue to undertake? Is it all of them, as presumably it should be, bearing in mind that the noble Lord is “in awe” and regards the probation service as an excellent service, and that its work will continue to be undertaken by probation officers in the years ahead?

Are the Government looking to reorganise the probation service and, if so, with what objective in mind, and in what way? If the probation service is already excellent, as the Minister told us last month, what improvements in the service do the Government believe can be achieved without potentially putting at risk the quality of the excellent service currently being provided?

We definitely do not want to see any attempt to reduce significantly or change the role of the probation service without Parliament being fully aware of what is going on, without the opportunity for a full debate—with Ministers having to justify their proposals to Parliament—and without Parliament having to agree to those changes. The new Secretary of State seems to believe implicitly in the private sector’s ability to do just about everything better than the public sector, and he is likely to try and outsource as much as he can work that is currently undertaken by the probation service. If that is not the case, the Minister has only to stand up and give a cast-iron guarantee that the probation service will continue to undertake its current activities within the public sector.

The Minister could also say how many staff are in the probation service at the present time and how many the Government envisage there will be in the future, taking account of their proposals in the Bill on community sentencing and their declared intentions on restorative justice and on the role of rehabilitation in reducing reoffending. We will listen to the Minister’s response and the words that he chooses to use—and the ones that he chooses not to use—with interest. I hope that his response will be consistent with the effusive words he used about the probation service in his response to our debate on 30 October. I beg to move.

Baroness Hamwee: My Lords, my noble friend Lady Linklater has already put on record today, for the umpteenth time in this Chamber, our admiration for the work done by the probation service. I hope that is a fair summary. I will not take up the Committee’s time by repeating that or picking up the points of acclamation made by the noble Lord. I simply want to ask him a question. His amendment would insert a provision for the affirmative resolution procedure in the 2007 Act. The significance of the date of that will not be lost on the Committee. In other words, that legislation existed before the last general election. I was hoping to understand, from his introduction of this amendment, why, as that legislation allowed for plans to reorganise the probation service—I understand that must be so from his own amendment—there was no provision included at the time for the affirmative resolution procedure. I make it clear that my question is for the noble Lord, Lord Rosser.

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Lord McNally: I do not know whether I am flattered or worried about the assiduity—a world that seems to be creeping into these debates—with which the noble Lord, Lord Rosser, reads my speeches. It is more worrying when speeches of a few years back are quoted back at one and it is perhaps even worse when someone reminds one that most of the powers that we will need to reorganise the probation service were included in the 2007 Act, which, as my noble friend has pointed out, was enacted under the previous Administration.

I would like to help the noble Lord further but he is well aware that we are looking at the probation service in parallel with the other reforms that we are bringing forward. The aim of our reforms will become clear. Noble Lords will know that the provision of the probation service in England and Wales is at present under review. Earlier this year the Government published a wide-ranging consultation paper, Punishment and Reform: Effective Probation Services, setting out proposals for the future direction of probation. The Government are carefully considering the way forward in the light of the comments received and the Government’s wider approach to reforming the justice system.

A key part of these reforms will be delivering a rehabilitation revolution that reduces reoffending rates and therefore better protects the public. The Government want to see offenders, both after release from prison and on community sentences, given the support that they need to keep them on the right track, rather than simply returning to crime. The Prime Minister has made it clear that this will be an ambitious programme, using payment by results across rehabilitation services to harness a range of expertise and to strengthen our focus on outcomes. We are clear that there will continue to be a critical role for the public sector probation service as part of a reformed system. The Government are aiming to set out a vision for the future system over the next few weeks. We will want to engage with probation staff, representative groups and all those who can make a contribution to this important work.

In light of these points, I would be grateful if the noble Lord, Lord Rosser, would agree to withdraw his amendment. Work is under way; consultations are under way; and at the appropriate time we will bring forward proposals which, inevitably and quite rightly, will be subject to the scrutiny of both Houses.

7.15 pm

Lord Rosser: I think the Minister has answered the question from the noble Baroness, Lady Hamwee. We have not heard much since the conclusion of the consultation. The Minister has made it clear that there will be a reformed system and, by saying that the Government’s ideas will be around in the next few weeks, he has indicated that your Lordships’ House will not be able to discuss the Government’s proposals on community sentencing in the light of the Government’s intention for the future of the probation service. If that is wrong and if the Minister is telling us that on Report we will know what the Government’s intentions are for the future of the probation service, I will be very happy to give way so that he can tell us that fact. He does not seem to be too keen to stand at the Dispatch Box to confirm that that information will be available for us on Report.

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It is with considerable suspicion that we view this Government’s intentions for the probation service. There is clearly a move to outsource more activities. The Minister has not taken the opportunity that I have given him to stand at the Dispatch Box and tell me that I have got it all wrong and that that is not what the Government are thinking of doing. That is the answer to the question from the noble Baroness, Lady Hamwee.

Lord McNally: For the record, we are considering how to give effect to those parts of the Offender Management Act 2007 that open up provision of the probation service to a wider range of providers. In doing that, we will, of course, take a sensible and measured approach to any proposals introducing competition for offender management. Protection of the public will continue to be our top priority as we design our reforms.

Baroness Hamwee: My Lords, I would not say that the noble Lord was interrupted but an explanation has been given by the Minister. I did not expect the Minister to answer my question because it was not a question for him. It was a question about why the previous Government provided for the sort of reorganisation to which the noble Lord, Lord Rosser, referred, but did not provide for the affirmative resolution procedure. I am sure he would have said, as I have, that one needs to ensure that all legislation is proof against succeeding and different governments. The noble Lord was not part of it so perhaps I am teasing him unnecessarily.

Lord Rosser: It was not our intention to do to the probation service what one suspects that this Government are contemplating doing to the probation service. Certainly, nothing that the Minister has just said will have allayed any fears or concerns about the Government’s future intentions for the probation service. We tabled an amendment to ensure that the matter is fully discussed and debated in both Houses and to point out that it requires an affirmative resolution procedure.

I am not surprised that the Minister has declined to answer any of the points that I have put forward in asking him about the Government’s intentions. He has effectively remained silent, which must add considerably to the worries and suspicion about what is intended, particularly since the consultation ended a while ago. However, I realise that I cannot force the Minister to say anything in response to questions that I ask. Therefore, I have no alternative but to beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Schedule 16 agreed.

Schedule 17 : Deferred prosecution agreements

Amendment 22

Moved by Baroness Hamwee

22: Schedule 17, page 261, line 27, after “unavailable” insert “for a period of or likely to be of more than 21 days”

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Baroness Hamwee: My Lords, Amendment 22 is a very low-key and minor introduction to this important new schedule about deferred prosecution agreements. It deals with the provision of certain persons to be designated as prosecutors who can enter into deferred prosecution agreements. Paragraph 3(2) states:

“A designated prosecutor must exercise personally the power to enter into a DPA”.

If I split an infinitive, it was because I was quoting. Paragraph 3(3) states that,

“if the designated prosecutor is unavailable, the power … may be exercised personally by a person authorised … by the designated prosecutor”.

This is a probing amendment. I seek to understand what is meant by “unavailable”. I assume that it would mean something more than “unavailable because he has gone to the dentist that afternoon”, and would mean unavailable because he or she is having long-term treatment for a medical problem that keeps them away from the office and away from work. The amendment specifies that the unavailability should be,

“for a period of or likely to be of more than 21 days”.

I am by no means wedded to that. As I said, this is a probing amendment, because “unavailable” could be read as meaning a very brief period where it would not be appropriate for power to be delegated. I beg to move.

Lord Beecham: My Lords, the noble Baroness raised a perfectly fair and reasonable point, to which no doubt the Minister will be able to reply. Looking again at paragraph 3, it strikes me that perhaps there are one or two other questions to ask. Paragraph 3(1) states that the prosecutor is designated by an order made by the Secretary of State. That is a very high-level appointment. It is emphasised by paragraph 3(2), which states that the designated prosecutor,

“must exercise personally the power to enter into a DPA”.

Again, it follows that this is a serious responsibility for somebody appointed at the highest level relevant to that appointment.

It would appear that the person then has a delegated power, in the circumstances which no doubt the Minister will elucidate of his or her unavailability, to appoint somebody else. There does not seem to be any procedure for that person necessarily to be one of a group approved in advance by the Secretary of State. It may be that a sort of panel system is envisaged, but that is not clear in the Bill. Presumably anybody could be designated—in theory they could be relatively junior—by the original designated prosecutor to carry out this very responsible work.

This thought had not occurred to me until the noble Baroness opened up the issue. However, it strikes me as a matter that the Minister should take back and look at. I would envisage that a panel system would apply, but surely it would be sensible to specify that that would be the case, rather than leave an untrammelled decision to the designated prosecutor in circumstances where he or she is not available to do the job. Perhaps the noble Lord, Lord Ahmad, will take that back and look at it, in order to answer both problems that we have identified this evening.

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Baroness Hamwee: My Lords, perhaps I can come back on this. The point is reinforced by the fact that designation under paragraph 3(1)(c) is subject to the affirmative procedure under Clause 30.

Lord Ahmad of Wimbledon: My Lords, I thank my noble friend for moving her amendment. When devising the new process for deferred prosecution agreements for England and Wales, the Government sought to ensure that it aligned with key strengths and aspects of the existing criminal justice system. To that end, we provided for decision-making throughout the process to be properly guided, including by the code of practice for prosecutors, and overseen by the judiciary.

Paragraph 3 of the schedule provides that the decision to enter into a deferred prosecution agreement with an organisation should be exercised personally by designated prosecutors, namely the Director of Public Prosecutions and the director of the Serious Fraud Office. This is to ensure that there is prosecutorial oversight of each DPA at the highest level. It mirrors existing requirements for such oversight, including, for example, decisions to bring proceedings under the Bribery Act 2010. Offences under the Bribery Act 2010 are among the economic and financial offences for which we propose DPAs. This process should be available, as detailed in Part 2 of Schedule 17.

My noble friend Lady Hamwee and the noble Lord, Lord Beecham, asked what would occur when the relevant director, whom we hope in each case will make the decision personally, is not available. In order that due process can continue without delay, we have provided the power for the relevant director, if they are going to be unavailable, to designate another prosecutor to exercise the oversight and decision-making functions. The noble Lord, Lord Beecham, asked whether they could assign this power to anyone. I suggest that someone who is qualified and in such a senior role will assign it to an appropriate prosecutor in their relevant area.

Consistent with similar powers for personal decisions by directors, such as those under the Bribery Act 2010, we have not sought to constrain the ability to delegate the power to enter into a DPA. We are not contemplating large numbers of deferred prosecution agreements each year, and are confident that the directors are fully committed to making decisions personally, as envisaged, and would designate another person to do so only in exceptional circumstances and with good reason—and, I will add, would designate only an appropriate person.

I consider it important in the interests of openness and consistency that DPAs should align as closely as possible with existing and established law, and with the processes of our criminal justice system. That is what we have sought to achieve in paragraph 3, and indeed throughout Schedule 17. I therefore hope that with this explanation my noble friend will withdraw her amendment.

Lord Beecham: I am grateful for the Minister’s response, but he has not quite addressed the issue. There is nothing in the Bill that would require the substitute prosecutor to be a designated prosecutor; they could be anybody nominated by the original

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designated prosecutor. I again invite the Minister to take this back and have a look at it. It seems—and I think that the noble Baroness agrees with me—that there is a lacuna here that needs to be filled.

Baroness Hamwee: My Lords, of course I will look in any direction that the noble Lord points me to in considering consistency with other legislation. I think that what we are being asked to do is to rely on the good sense, and good sense of responsibility, of those who hold the posts specified in paragraph 3(1)(c). I understand that and take the point seriously but, as the noble Lord, Lord Beecham, said, at least some further thought is required in order that we can be confident that enough constraint is in place. For the moment, I beg leave to withdraw the amendment

Amendment 22 withdrawn.

House resumed. Committee to begin again not before 8.30 pm.

EU Report: Women on Boards

Question for Short Debate

7.30 pm

Tabled By Baroness O'Cathain

Baroness O’Cathain to ask Her Majesty’s Government, in the light of the Report of the European Union Committee on Women on Boards (5th Report, HL Paper 58), what is their position on proposed EU action to increase gender diversity on boards.

Baroness O'Cathain: My Lords, this is a time when we are making history. The report of the European Union Committee on Women on Boards was published last Friday and we are debating it tonight, which is two working days. This is excellent, of course, but it gives no time whatever for a government response. We hope that they will give one in due course and we look forward to that.

Gender equality has long been one of the core objectives of the European Union. The treaty on the functioning of the European Union is clear that,

“in all its activities the Union shall seek to eliminate inequalities and to promote equality between men and women”.

There has been important legislation, including the 2004 gender directive, which insists that there should be equal treatment of women and men in the access to and supply of goods and services, and the 2006 directive on equal opportunities for men and women in the workplace.

Since 2010 this objective has been vigorously pursued by the vice-president of the Commission, Viviane Reding, and in this country by a number of business leaders, spurred on by the 2011 inquiry by the noble Lord, Lord Davies of Abersoch, at the request of the Department for Business, Innovation and Skills.

The Commission action so far has included in September 2010 the strategy for equality between women and men; and in March 2011 European companies

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were invited to sign the “Women on the Board Pledge for Europe”, which required that companies should commit to raising female representation on their boards to 30% by 2015 and 40% by 2020. UK action so far has been the Davies report, to which I have already referred, which underscored the benefits of having more gender-diverse boards. The Government have largely accepted the findings of the Davies report but have rejected the ideas of quotas at the EU level.

Sub-Committee B undertook this inquiry because of the topicality and the importance of the issue, its place within the committee’s scrutiny remit and the expected directive from the Commission imposing quotas for women on boards. This proposal was initially expected on 23 October but was postponed. We now expect the directive to be put forward by the Commission tomorrow. So if that is not topical, what is? A leak appearing in FT.com today confirms that the Commission is widely expected to propose some form of quota for 40% of women on boards in plcs within the EU by 2020.

In asking this Question, I thank everyone who has contributed both written and oral evidence to our inquiry; and the members of the sub-committee who worked so hard to produce this report, four of whom are taking part in this debate. I thank them particularly. I also thank our clerks, Mark Davis and Nicola Mason; the policy analysts, Paul Dowling and Sarah Watts; and our committee assistant, Elaine Morgan.

There is a strong case for action in this area. As already noted, gender equality is already a key EU objective. Viviane Reding has made this a priority. The committee found merit in this work to encourage greater female board membership and urges the Government to continue to support the Commission as well as pioneering their own initiatives.

We observed the significant benefits derived from a more diverse board. These include better reflecting the perspectives of customers; challenging established thinking—or “group think” as we are now supposed to refer it; female board members can serve as role models for women within and outside organisations; and the need for fairness and equality of opportunity—for example, in the UK, women make up 45% of the labour force and 60% of graduates, yet only 17% of board positions are held by women in the FTSE 100. In the Cranfield study it was stated that there are 2,500 “board ready women”—that sounds a bit like “chicken ready”. However, we are not convinced by the evidence which has been put forward for a direct link between gender diversity and increased business profitability and would discourage the promotion of such claims in the absence of further and more conclusive research.

On quotas, the Commission is well placed to encourage member states to act in this area. Article 157(3) TFEU allows the EU to adopt legislation aimed at ensuring equal opportunities. However, voluntary progress at the level of member states has been slow. This was the Commission’s key argument for the suggestion that quotas should be imposed. It takes as one example the adoption of quotas in France, where a 40% quota for female board directors is imposed at a national level. However, based on the wealth of evidence the committee

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received, we considered that similar legislative action from the EU at this level would be inappropriate for four key reasons.

First, to impose EU-wide legislation would jeopardise self-regulatory efforts and the current positive engagement from industry in countries like the UK where businesses are strongly opposed to quotas. Secondly, there is a possible argument that this would undermine the principle of subsidiarity. Subsidiarity being the case, the EU should act only if the proposed action cannot be achieved by the member states at national and regional level. Thirdly, positive non-legislative efforts are already being made in the UK. Fourthly, any legislation which induces quotas is best imposed at national level, and this is already being done in France and Italy.

Quotas would achieve statistical change but neglect the underlying causes and risk fostering the incorrect perception that women on boards were not there by merit—for example, 89% of the 2,600 women who responded to the consultation of the noble Lord, Lord Davies, opposed quotas. Quotas would not address the lack of a sustainable and consistent “pipeline” of women through businesses and onto boards, according to the National Association of Pension Funds.

While in the long-term progress has been disappointingly slow, female representation on boards has increased exponentially in recent years. In 2011-12, we saw female board membership increase by 3.1%, the largest reported increase at FTSE 100 level. Indeed, when I look back at my experience when I had my first FTSE 100 board appointment in 1984, I was one of six women in the whole of the FTSE 100 who had a board appointment. So we have made progress. In March to September 2012, 44% of new board appointments were female.

As to the experience of other countries, which is often quoted, Norway introduced a quota of 40% women board directors in 2003, with a deadline of 2008 for publicly traded companies. The 30% club pointed to the low number of women in executive positions in Norway as a lack of the effectiveness of quotas. Despite 44% of board members being female, only 8% of Norway’s CEOs are female.

Barnali Choudhury, a lecturer in corporate law at Queen Mary College, London, highlighted the disputes surrounding the practicality of quotas despite its strong culture of quotas. She therefore suggested that a one-size-fits-all solution around Europe would be deeply flawed given the variance of such cultural factors.

Too little time has elapsed to assess the impact of quotas on other EU countries such as France and Italy, where legislation is less than two years old. However, it is notable that, despite having quotas in France, the French Administration agree that EU action should begin with non-legislative measures.

Henry-Labordère, Counsellor for Labour Affairs at the French Embassy, was keen to see co-ordination at a European level but believed that a “graduated approach” of “reasonable voluntarism” was the most appropriate first step. We investigated and suggest other measures, including monitoring progress. A number of witnesses suggested that more effective monitoring in the areas of gender diversity of board members could go some

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way to solving the problems that this report seeks to address. However, witnesses were divided on the best means of performance monitoring. Witnesses also highlighted the merits of voluntary initiative, such as the “comply or explain” element in the voluntary code of conduct which was launched in July 2011. This is significant as it was drawn up by the search firms sector, which has a prominent role in the appointment of board members.

In conclusion, we acknowledge that progress in this area is needed, but that it should be business-led, enabling a sustainable supply of women to move up the “pipeline” and into board positions. Therefore, the imposition of quotas at EU level should be resisted, since they would negate the engagement and goodwill shown by businesses in recent years. The Commission has a role to play in fostering this voluntary approach and should focus on highlighting best practice in the area. While it is beyond our remit, we note also that developing a sustainable supply of female talent may also require broader cultural reform of working practices. As such, we welcome the broad focus at both national and EU level on these wider issues. This is the most important recommendation.

7.41 pm

Baroness Ford: My Lords, I thank the noble Baroness, Lady O’Cathain for securing this incredibly topical debate. In the 1980s, she was the Chief Executive of the Milk Marketing Board, then a very important national organisation. She was a powerful role model for many of us who followed her in business. The European Union Committee has delivered a very thoughtful and practical report on this issue. Its preference, and that in the report of the noble Lord, Lord Davies, is for companies initially to have some time to deal with this issue rather than immediately impose quotas. I believe that they are right in this as things are now changing very rapidly. When I was first appointed to the board of a private company 20 years ago, it was something of a novelty. The usual excuse for not having diversity in boards was that not enough experienced women were available. Even if it was true then, which I doubt, it is nonsense now. A whole generation of women have had successful executive careers and form a huge pool of talent available to fill board positions.

However, we need to embed these changes and make sure that they stick. The question is how best to do that. In the minute remaining, I want to say that one thing strikes me as particularly important. We must continue to exert pressure on companies whose boardrooms are still one-dimensional and also on those search firms whose research is particularly weak in this area. We must embed diversity in mainstream corporate governance in line with the UK code. I am absolutely sure that this is the best way to proceed. At the moment, companies show their range of professional advisers in their annual report—their brokers, their auditors, their lawyers—but they do not show their search firms. It would be hugely revealing to have this information made public. I welcome the changes proposed by the Financial Reporting Council in this regard. I believe that it will demonstrate, as lots of us know from our own experience, that certain search firms, as well as certain companies, are much better than others

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at thinking laterally and behaving inclusively. If the last few years have shown us anything about institutions and organisations in this country, it is that the very best way to effect change is through transparency.

7.43 pm

Baroness Scott of Needham Market: My Lords, I want to start by paying tribute to Commissioner Reding. We have seen the value of strong leadership when it is shown in this country, as it is here by the noble Lord, Lord Davies, and Vince Cable. Article 2 of the EU treaty clearly gives a competence in equalities issues and the Commission is quite right to look at the question of women on boards in this regard. While the position of women in the boardroom in countries such the UK and Norway has undoubtedly improved, it is very poor elsewhere in the European Union. For me, one of the most persuasive parts of the evidence we heard was the reminder that the current situation is such a waste both of talent and of the public investment in the education of women if they find their way is barred. Our report therefore sets out some of the ways in which the EU can take action—for example, through monitoring, collection of data, exchange of best practice with the business sector and executive search firms—in the way that the noble Lord, Lord Davies, has done here. I believe that naming and shaming companies who are laggards can be very powerful, particularly if shareholders exert their power.

While I am not against quotas per se, I have serious reservations about them for all the reasons we have just heard. If they were imposed at EU level, it would be difficult to find a quota which would reflect the very different rates of participation across the Union. If a quota were set too high, it would be impossible for some states to reach; if it were set too low, it could actually set women back in other countries. If Government lose that argument and EU quotas are the outcome, I would advise them to negotiate for percentage increases rather than a one-size-fits-all. For me, it is a matter of practical subsidiarity. Whether or not to have quotas and how they should be used is a matter for member states.

7.45 pm

Lord Patten: My Lords, I should declare an interest—not mine but my wife’s, now in her twentieth year of uninterrupted service on the boards of FTSE 100 companies. From time to time, as your Lordships might imagine, her ladyship has occasionally favoured me with her views on this subject across the Chinese duvet that quite properly separates our business interests. That said, these are my views, not her ladyship’s. First, I give strong support to the noble Baroness, Lady O’Cathain, and her committee. Secondly, I certainly want more well-qualified women on boards. Thirdly, I agree with the general tenor of the remarks made recently by Burberry CEO Angela Ahrendts when she said on 9 November in response to a question about quotas:

“Just put the best person into the job. It is not about gender, it is about experience, leadership and vision”.

Miss Ahrendts then very generously went on to observe,

“A man could do this job”.

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Two of the best quota-free ways of encouraging more women directors are, first, for companies always to remember that women striving for the top make choices not sacrifices. They are not victims as they strive to struggle and juggle family, children and work. Secondly, improving company working practices, styles and rhythms to accommodate this juggling by women has a lot to do with companies’ success. The best companies, the crack companies, have already started this—Amazon, Apple and, indeed Burberry. One can go from A to Z through the list of major companies. It is one of the best non-discriminatory ways of helping more women up the executive leader, itself one of the best routes into non-executive directorships as it happens. It also helps to build better companies.

7.47 pm

Lord Haskel: My Lords, as the noble Baroness, Lady O’Cathain has explained, a proposal by Commissioner Reding that there should be a mandatory 40% of women on boards has been legally challenged so fresh proposals are imminent. I add my thanks to our clerk Mark Davis and the team who drafted this report in double quick time so that we can contribute to the debate.

We are convinced that the objective of greater gender balance is right but we have tried to respect and understand the different ways that each member state conducts its corporate affairs. We call for a 30% target before a mandatory 30% quota is enforced. As we explained in box 2, and as the noble Baroness reminded us, the legal basis for gender equality is already in place. Indeed, some member states already have quotas and we list these in Table 1 of our paper. The House is therefore entitled to ask why we should bother. There are practical reasons. First, we think that 30% is the right number. Secondly, during my time in business, I observed that firms got into trouble when they ceased to serve society in order to serve themselves. The banking industry is only the latest example and one way to avoid this, and to keep up with the changes in society, is through diversity. Women are 50% of the society that we serve.

As we point out in our report, one way in which to increase the potential pool of women—and, incidentally, benefit from their knowledge and experience, as the noble Baroness, Lady Ford, reminded us—is to look outside the usual networks. The public sector, the voluntary sector or the women scientists’ concordat. All this is far better than the golf club. I also think that our ambitions must go further than the FTSE 100 companies and should perhaps include all firms in the FTSE 250. I strongly support the EU initiative. It is right to call for penalties, but only as a last resort if the target of 30% is not achieved.

7.50 pm

Lord Bilimoria: My Lords, in 2003 I was a member of the Tyson Task Force on the Recruitment and Development of Non-Executive Directors, where we examined,

“how a range of different backgrounds and experiences among board members can enhance board effectiveness and by exploring how a broader range of non-executive directors can be … recruited”.

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I thank the noble Baroness, Lady O’Cathain, for initiating this debate and I am relieved to see that the EU Committee’s report is emphatically against imposing quotas. There are two issues here: how can we continue to encourage UK plc to have the most effective boards, and secondly, how can we ensure that UK plc pursues equality of opportunity? It is not just about doing things right, but about doing the right thing because it makes sense.

Apart from chairing the Cobra Beer Partnership Ltd and Molson Coors Cobra in India, for the past five years I have been a non-executive director and the senior independent director of the Booker Group plc, a FTSE 250 company. When I first joined the board five years ago, there were no women, but that situation has changed. I am proud to say that we have a very effective board that has seen the company’s value increase virtually five times in five years. What is key is finding the best individuals for the board with diverse skill sets, backgrounds and experience that are as relevant to your business as possible, and increasingly that should include international experience. It is the responsibility of the chair to search as widely as possible to find these individuals, as well as the responsibility of headhunters. Although it is good news that more than 50% of FTSE 250 companies now have at least one woman on their boards, we could do so much more. As was said earlier, the Cranfield University School of Management, of which I am a proud alumnus, in its 2012 Female FTSE Board Report identifies more than 2,500 women who are ready and capable of taking on board positions.

We need to persist in encouraging and highlighting the benefits of diverse boards, and in particular having more women on boards. The report of the noble Lord, Lord Davies, is doing this in the same way as the Cranfield University School of Management report, and in the way that the EU Committee’s report is doing it. Jennifer Harris, the managing director of Board Intelligence, wrote last year that:

“Boards make important decisions and diverse boards might make better ones”.

From my experience, I have seen that they definitely do. I shall conclude by saying that we need look no further than your Lordships’ House. I would go so far as to say that this is the most expert and the most diverse upper House in the world. We did not need quotas to achieve this; we have done it because it makes us more effective, and because it simply makes sense.

7.52 pm

Baroness Miller of Hendon: My Lords, I, too, would like to congratulate my noble friend Lady O’Cathain on having secured this short and most important debate. I have only served on the board of one commercial public organisation, the Crown Agents, and I therefore do not have the same experience as does my noble friend following her very distinguished career in the world of high-powered finance. However, I do have the experience of being involved in the very long campaign to get more women into Parliament, as an early founder and later the director of the 300 Group, and I was also deeply involved in the campaign for

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more women to receive appointments to public bodies. That campaign has been partially successful as regards the other place and even in your Lordships’ House, and progress continues to be made—although only slowly as regards appointments to public bodies and the senior Civil Service.

The one thing that the two campaigns have in common is that women do not want to be refused appointments to company boards simply because they are women, but equally they do not want to be appointed only because they are women. They do not wish to be the token woman on the board to make it look good. Neither of those actions is in the interests of the shareholders. It is true, as the former Equalities Minister, the Member for Hornsey and Wood Green, is reported as saying in today’s Daily Telegraph, that having children—and worse still, the possibility that they may do so—is an impediment to some women’s careers. But still I am hopeful, if not confident, that women are on the edge of a breakthrough—it sounds as though they might very well be—and that they will simultaneously shatter the glass ceiling and put an end to the malign influence of the old boys’ network. Given that so many men have spoken in this debate, I hope that they will forgive me for that one little remark.

I hope that today’s debate will come to the attention of shareholders, especially the institutional shareholders of public companies, and that they will use their influence to ensure that the vast talent of 50% of the population is put to its fullest and best use. That is all I want to say other than to look to my noble friend and thank her once again for having called for this most interesting debate, one that has encouraged so many gentlemen to speak so well about our sex.

7.55 pm

Lord Giddens: My Lords, unlike other noble Lords who are speaking in this debate, I am a strong supporter of obligatory quota systems for gender equality, and certainly at the national level. They create a platform for advance that no other approach can rival. We have a lot of evidence on this. Voluntary approaches by and large do not work, no matter how ambitious they are. After more than a century of struggle for women’s rights, 86.5% of board members in the EU are still men—that is almost 90% after such a long period. That shows that we are dealing with very deeply embedded forces. Radicalism of all sorts is required on the issue, not only for reasons of social justice but because of the need to tap an unused reservoir of human capital. We owe the EU Commissioner, Viviane Reding, a debt of gratitude for putting the issue so forcefully on to the EU 2020 agenda, even if her original proposals do not look as though they will go through.

I have two questions for the Minister. First, what plans do the Government have not just to implement the recommendations of the Davies report but to go beyond it, especially to introduce some form of sanction? Without sanctioning mechanisms, we are not going to get near the targets. Secondly, does the noble Baroness agree that only those countries that have introduced enforced quota systems have made fast and substantial progress? We know the famous case of Norway, but in

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a whole string of other countries there has been a dramatic change in the course of even a year or two after the introduction of such legislation.

7.57 pm

Lord Smith of Clifton: My Lords, the situation is not improving. In the past year there has been a reduction in the number of female FTSE 100 CEOs from four to two. The recent reshuffle has seen a reduction in the number of women Cabinet Ministers. Furthermore, to add insult to injury, job for job, women are paid £400,000 less over their working lives than their male counterparts. They also receive less than half the average amount in bonuses than men in the same positions, and women directors are twice as likely to be made redundant. Increases of women directors in FTSE 100 companies have invariably been in the non-executive category. Among the FTSE 250 firms, the situation regarding women directors remains dire. Some 94 out of the FTSE 250 companies have no female board members.

The Government remain opposed to quotas, preferring to encourage a voluntary code. “Nudging” is not effective, as the noble Lord, Lord Giddens, has just said. Both major companies and the Cabinet will fail to meet the 25% female participation targets by 2015, as set by the noble Lord, Lord Davies. Mandatory quotas merit the most serious consideration.

I am saddened by the number of women who, against all the odds, have achieved commendably high positions in the corporate world but nevertheless decry the introduction of quotas. They seem to feel they have to be more macho than the boys, who self-servingly reject quotas. The fact is that these protestations fly in the face of the evidence: quotas do work, and not just in Norway. Within the UK quotas have worked very well. Following the Patten report, the Police Service of Northern Ireland was required to apply quotas over a 10-year period to improve the recruitment of Roman Catholics. The target was achieved well before the 10 years had passed and, what is equally significant, it led to a marked increase in the recruitment of women from both communities, up from 12.6% to 26%. That is a fact, and will the Minister in winding up the debate please confirm that?

7.59 pm

Lord Moynihan: My Lords, I ask the Government to reflect on the themes in the European Union Committee report in the context of the boards and committees that provide governance in the specific sector of sport and recreation in the United Kingdom.

Last week in your Lordships’ House, I called for an end to the ban on women members in certain golf clubs, including the Royal and Ancient in St Andrews. Today I broaden the theme to focus on the wider role of women in British sport administration. Maria Miller, as Secretary of State in the Department for Culture, Media and Sport, also has responsibility for women in society, and I urge her to address this issue as a priority. Where are the women sports editors? Why are women so underrepresented on the boards of British sport’s governing bodies?

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Following the London Olympic and Paralympic Games, which so vividly demonstrated the impact of girl power, the number of women on the international sports federations and the International Olympic Committee—with its 118 men and 24 women, a ratio reflected on many of our governing bodies of sport—falls short of where we should be in the 21st century. As the Times editorial on 27 October stated:

“There are not many sports whose governing structure would withstand the pressure of scandal. The governance of sport is one of the few institutions where the disinfectant of scrutiny has not yet been applied”.

I call on the Secretary of State to initiate an inquiry into why women are so underrepresented in the running of British sport. These are golden days for British sports men and women, able-bodied and disabled. It is time that the role of women in the administration of British sport was afforded the priority it deserves. The fact that governing bodies are overwhelmingly funded by the quangos that operate through government appointments, as well as the influence of Whitehall, makes this an area in which the Government can take action. I urge the Secretary of State to do so now.

8.01 pm

Lord Kakkar: My Lords, the strong arguments for broad female membership of company boards has been very powerfully made by the noble Baroness, Lady O’Cathain. I will focus on the areas of legality with regard to the proposals that have been made, or may be made, by the European Commission, and the question of competence with regard to this area of legislation. We heard reports in late October that the EU legal service challenged the Commission over the legality of strict quotas being imposed on publicly quoted companies. The report suggested that it would be impossible under current EU treaties to impose quotas or to apply strict sanctions to companies that failed to meet those quotas.

During this investigation, your Lordships’ European Sub-Committee B also covered the area of competence with regard to the EU in this area. Legal advice available to the committee indicated that the EU was indeed competent to act in this area, but evidence received by the Minister, Jo Swinson, giving oral evidence on 15 October, indicated very clearly the view of Her Majesty’s Government that the EU did not have competence in this area. I have two questions for the Government. When entering negotiations once these proposals are finally presented, will their position be that the European Union is or is not competent to proceed in this area? Secondly, do they consider the imposition of quotas legal or illegal under European law?

8.03 pm

Baroness Noakes: My Lords, I congratulate my noble friend Lady O’Cathain on her report and on this debate. I support getting more women on boards but I want to achieve that through merit not discrimination. The effort to get women on long lists is fine, but that is where discrimination should end. The debate often equates diversity, which is a good thing on boards, with more women. This is wrong. Female board members

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are not automatically more diverse than their male counterparts. Concentrating on gender diversity risks losing sight of what real diversity can contribute to board success. The report is brave to say that the economic case for more women on boards has not been made. The enthusiasts have confused correlation with causation, and I hope that Ministers, including my noble friend on the Front Bench this evening, will stick to the evidence in future and not make assertions about improved performance and productivity.

I believe that focusing on the proportion of board membership achieves diversity box-ticking without achieving sustainable change. Because the proportion of executives on boards has declined from around one-half to around one-third over the past 10 years, the focus has therefore been on non-executive appointments. However, in my view the debate needs to shift decisively towards the much more difficult issue of women executives. Why is it that management boards still look unbalanced? Why are the women who are there are often in functional roles rather than general management ones? This is partly about working practices, as the report suggests, but also about culture—as the report also suggests—and the hidden barriers in workplaces and the implicit assumptions about career patterns. These are not areas that board percentages can tackle.

Lastly, I cannot support even a reserve right of Brussels to legislate on quotas. The report should have used a little more Anglo-Saxon directness in telling the Commission where it should put its quotas.

8.05 pm

Lord Clinton-Davis: I thank the noble Baroness, Lady O’Cathain, for all she has done to advance this cause. Arriving at a more equitable situation between men and women on boards is ultimately desirable. However, it depends on being able to recruit women of real ability. It must be done within a limited time and satisfy the requirements of all the members of the EU. I have no doubt that to impose quotas at this stage would be a mistake. Some member states prefer legislation while some combine both. Others, such as ourselves, prefer a voluntary approach.

But what if insufficient progress is made? The sub-committee said that the voluntary approach must be given a fair time to work. That is entirely right, but at the end of the day, if it does not work, quotas should be applied. Two issues are absolutely vital. First, the EU should preferably act in concert. Secondly, there is no place for backsliders.

8.07 pm

Lord Freeman: My Lords, first, I congratulate my noble friend Lady O’Cathain on this very interesting and important debate. I will share with your Lordships my limited experience over the past 15 years in the private sector.

Mandatory quotas in France, where I have served on a major company board, have been accepted and work. In Norway, quotas have been working, to the best of my knowledge, for five to six years now. However, I do not believe in mandatory quotas applying to the

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United Kingdom at this stage, for a number of reasons. The excellent and energetic work of the noble Lord, Lord Davies of Abersoch, in trying to encourage professional services firms, particularly the big accounting firms and the merchant banks in the City, to recruit more women to the board seems to working. If that does not work, I withhold judgment as to whether there should be legislation, although I am not in favour of that at present.

The public sector has got a major example to set in encouraging more women to stand for or apply for positions, whether that is on the advisory boards of different departments or serving in the other parts of the public sector. We have not done enough, and Ministers should take responsibility for what I call the “pull”. As far as internal promotion is concerned, within management below boards, that is where we are failing and I very much agree with my noble friend’s comments just now. We are seeing a glass ceiling, certainly in professional firms, which is nothing to do with women deciding to leave to have families and come back later on. It is important that they are regarded as qualified candidates to rise right to the top. However, at the moment, I am not in favour of legislation in the United Kingdom.

8.09 pm

Baroness Thornton: My Lords, I start by thanking the noble Lord, Lord Moynihan, for his comments. The noble Baroness, Lady Grey-Thompson, was worried that she would not be able to be here to make the points that he so adequately made, so I am sure that she will be extremely pleased by his remarks. He was quite right. I wondered how I could possibly squeeze any of those sporting remarks into my two minutes.

Lack of women on boards is a waste of talent and potential. It is a terrible waste of talent and potential right now. I congratulate the committee on its work, although it is a shame that it set its sights against quotas so completely. It is also a shame that the newly appointed Minister for Women and Equalities, Maria Miller, instead of taking a positive stance on this matter, as most noble Lords have done, chose to attack the Labour Party as being obsessed with quotas. We have not said very much recently about them. Instead of celebrating successes achieved and talking about how to make progress, she decided instead to have a go. That is a great shame.

My understanding of what is to come out of Europe in the next 24 hours or so is that member states already taking action will be exempt from quotas if they get up to 40% of non-execs by 2020. That is eight years away. Does the Minister think it possible for the UK, with the progress that we have made so far, to reach 40% by 2020? We should be able to.

I am proud that Labour took action to ensure that women are better represented in Parliament and politics, for example. We now have more women than all the other parties in Parliament put together. That does not mean that there is not a long way to go. How will the Government put their own house in order on these matters? I draw attention to research published in Sunday’s papers, secured by my honourable friend Luciana Berger MP. It is about government departments

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and their appointments at a senior level. I will share with your Lordships’ House the bottom five. BIS is the fifth bottom. It managed to recruit 25% of women in the last tranche of senior appointments that it made. Fourth from the bottom is Defra with 23.5% of women. Third from the bottom is the Department for Transport: 16.6% of its recent appointments were women. Second from the bottom is the Treasury, with 14.2%, or two out of 14, of the last senior appointments that it made being women. At the bottom is the Department of Energy and Climate Change, with one out of 15 appointments, or 6.6%. That is simply not good enough. It seems that the Government need to get their own house in order.

Earlier this year, the Prime Minister said that he did not rule out going further and using quotas as a way to get women into top executive jobs. This weekend, we saw the Minister for Women and Equalities say that that was absolutely out of the question. Perhaps the Minister in this House would clear up whether it is Ms Miller who is right or the Prime Minister.

8.13 pm

Baroness Stowell of Beeston: My Lords, first I congratulate my noble friend Lady O’Cathain on securing this debate so swiftly after publishing the committee’s report on Friday and ensuring that it is possible for us to discuss this important issue in a timely fashion. I also congratulate all noble Lords on their contributions today. Perhaps it is a reflection of the lack of time available to noble Lords that no one else mentioned this, but I thought it striking that in this debate about women on boards we have had contributions from nine men and seven women. That is interesting in itself.

On a topic such as this, lots of statistics have been mentioned and I will mention more in the course of my response, but with the exception of the remarks just made by the noble Baroness, Lady Thornton, it was also interesting that it was noble Lords rather than noble Baronesses who spoke in support of quotas. The noble Lord, Lord Giddens, as one of those noble Lords, referred to representation in the European Parliament. It is worth noting that, in the Commission, of the 26 Commissioners 17 are men and nine are women. I am not here to speak for them, but it is none the less worth mentioning.

As my noble friend acknowledged, the Government will want to consider the report’s findings carefully and respond in detail. Our immediate reaction is that the report is thorough and comprehensive and we welcome it. I am pleased that the committee concluded that quotas are not the way forward in bringing about change and that the voluntary business-led approach that we are taking in the UK is a much more effective way of achieving long-term, sustainable change.

Noble Lords raised a wide set of issues. To respond, it is probably best to start with the Government’s position on the proposed EU action. As we all know, a proposal was put forward by Vice-President Reding in October which was not voted on. As has been mentioned, it is expected that a formal proposal will be put forward tomorrow. I will not—I am sure noble Lords would not expect me to—respond to any speculation

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about what might come out tomorrow, although I acknowledge, as has been mentioned, that there is a report in the

FT

today speculating on what might be said. Our basic position is that we welcome a discussion at the EU level about the best approaches to increase the number of women on boards. We welcome the efforts by Vice-President Reding to keep this issue high on the political agenda. We want more women on boards and in senior positions.

My noble friend Lady Scott of Needham Market was the first to raise the question of competency in the remarks today. There is a role for the European Union to ensure that good practice is shared and data are collected. There is also competency for the EU under its responsibilities to ensure equality in member states. However, we do not agree that quotas are the answer to our desired objective to have more women on boards and we will resist any effort by the European Commission or European Union to impose them. We take that position and do not support quotas because many member states have recognised the need to take action and are doing that in ways that they think best suit their own national needs. In many cases they are making progress.

The noble Lord, Lord Giddens, mentioned the success of quotas in Norway. That is right and, if it works for those in Norway, who am I to stand in their way if they think that adopting quotas is right for them? We do not think that quotas are the right approach for the UK. It is also worth noting that, while they have had success in Norway in terms of non-executive appointments, they have not had a correlation in the success of executive appointments. Because we think that member states are best placed to take action, we therefore question whether, under the principle of subsidiarity, there is a case for the Commission to impose quota legislation. The noble Lord, Lord Kakkar, asked about that and I hope that I have been able to clarify the difference. He also referred to evidence that my honourable friend Jo Swinson gave to the committee. When she talked about competency, she was talking about the role of the EU in terms of governance arrangements on boards. As to his direct question about whether imposing quotas would be illegal, that is premature. We do not know what the Commission will propose and I would not want to set out what we might do until we know exactly what it will put forward.

We do not accept that quotas are right for the UK. Member states, like business, need to be able to respond to the changing environment and varying needs of the business community. An inflexible, one-size-fits-all quota system is not the answer. That point was also made by my noble friend Lady Scott of Needham Market. If countries decide that they want to adopt quotas, that is a matter for them. When there are different types of governance arrangements for boards in different countries, one size across all areas would not work. In this country, the majority of women are not in favour of quotas. Certainly we in the Government feel that quotas address the symptoms and not the cause of women’s progress. As mentioned by other noble Lords, women want to be appointed to senior positions based on their skills and experience, not because of their gender.

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The representation of women on boards and in positions of authority in all sectors is important. At this point, I pay tribute to my noble friend Lady Miller of Hendon for all her work in promoting the cause of women in Parliament. She is right to remind us that it is not just in the public sector that it is important to have women in positions of authority. This point was also made by my noble friend Lord Freeman. I take on board his point that the Government and public sector need to take the lead in this area. As to what the noble Baroness, Lady Thornton, also said about the Civil Service, clearly there needs to be progress. However, although I do not have the statistics to hand, over the last 15 years there has been quite a significant improvement in the number of women in senior roles. While I would not suggest for a moment that this progress should not continue and that more cannot and should not be done, we must not believe that when a woman moves out of a post we are taking a backward step.

As much as we believe that it is right to have women in positions of power, we need to be clear why we believe that businesses would benefit from more women in senior positions. My personal view is that women need to hear that they are wanted. We are more likely to widen the pool of talent if we can spell out to women who perhaps would not naturally put themselves forward why having them in these positions is something that we want. We agree with the findings of the committee’s report that there is no causal link between more gender diversity on boards and stronger financial performance. It is difficult to find conclusive evidence for the economic impact of increasing the number of women on corporate boards. However, the correlation between strong business performance and women’s participation in management is striking. I noted the example given by the noble Lord, Lord Bilimoria, and his experience on the board on which he sits.

The report of the noble Lord, Lord Davies, has been referred to on several occasions. It is clear that the case for greater diversity hinges not only on the link with improved corporate performance, but also on ensuring that companies access the widest talent pool, are as responsive as possible to the markets that they serve and look to improve corporate governance. My noble friend Lady O’Cathain referred to other issues, including dealing with groupthink.

The Davies report is the approach that we are following here in the UK to try to improve the representation of women on boards. We believe that it is right to take the voluntary business-led strategy set out by the noble Lord, Lord Davies, in his report. As noble Lords know, he set out 10 recommendations aimed at increasing the number of women on boards and, 18 months on, women now account for 17.3% of non-executives in the FTSE 100 and 11.3% of FTSE 250 board positions, which is real progress. There are now only eight all-male boards remaining in the FTSE 100, which is down from the 21 of 18 months ago.

The voluntary code of conduct written by the executive search firms has played a key role in the progress that we have seen in the numbers of women attaining boardroom positions. It ensures that women are treated fairly within the recruitment process. In terms of our own learning, this is certainly something that we seek

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to share with other member states. However, a lot more still needs to be done if we are to meet the Davies target of having 25% on FTSE 100 boards by 2015.

I will make a couple of additional points on this. The noble Lord, Lord Haskel, pointed to the suggestion in the committee’s report of a target of 30% by 2020. In response, I would say that the report of the noble Lord, Lord Davies, was very much about minimum targets. That 25% is a floor, not a ceiling. Furthermore, the noble Lord and his committee went to great lengths to set a target that was both stretching but achievable by 2015. However, that does not rule out the possibility of going further. I would certainly not want to give the impression that that would be the end of the matter.

The noble Lord, Lord Clinton-Davis, asked whether quotas should be used if targets do not work. He is right to ask that—I think that the noble Baroness, Lady Thornton, also raised the question. It has been said both by the noble Lord, Lord Davies, and by the Prime Minister that there remains a last resort if all else fails. However, we want to pursue this voluntary approach and there is evidence that it is working. The most important thing is that if ever this country decided that it wanted to set targets, we should take that decision for ourselves and not have it imposed on us by Brussels. The noble Lord, Lord Giddens, asked whether there would be sanctions if the 25% target was not reached. My response is that, once we start imposing sanctions, we are inevitably introducing quotas by another name.

The pace of change needs to be accelerated. What has been acknowledged is that, while we are making real progress in the non-executive ranks of boards, we need to see much greater change among the executive director roles. That was mentioned by my noble friends Lady Noakes and Lord Freeman. Currently, women account for only 6.6% of those at executive director level of FTSE 100 companies, which is very disappointing. Addressing this issue is complex and it will take some time to see actual progress. However, the 30% Club and the Women’s Business Council—a group put together by this Government—are looking at this issue.

I went to a press launch today where the Conservative Women’s Forum announced that it would be looking into the barriers preventing more women from reaching senior executive positions. I think that we all want to understand which common barriers get in the way of allowing women to get into those senior management roles. As the Deputy Prime Minister announced today, initiatives such as greater choice around flexible working and flexible leave are issues that will have a positive effect once we are able to make progress in that area.

Because I am running out of time, I will just acknowledge that my noble friend Lord Moynihan mentioned women in board positions in sport. I will of course raise that with my right honourable friend the Secretary of State. I also want to make the point that transparency and monitoring are a very important part of ensuring that we make progress. I note what the noble Baroness, Lady Ford, said about seeing whether the new reporting requirements could be extended to search firms. I am not able to commit to that, but it is an interesting idea.

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We will continue to work with businesses, investors, directors and chairmen to spread the word that diversity makes economic sense. Some success has been achieved, but we need to increase the pace and gain greater momentum. My noble friend Lady Miller said that women are on the edge of a breakthrough. I hope that that is the case. Certainly, boards can change, and they can and will change without regulation. If I have not been able to cover any point that has been raised today, I will write to noble Lords.

Crime and Courts Bill [HL]

Committee (on Recommitment) (Continued)

8.30 pm

Amendment 23

Moved by Lord Marks of Henley-on-Thames

23: Schedule 17, page 261, line 32, leave out “but may not be an individual”

Lord Marks of Henley-on-Thames: My Lords, I shall speak also to Amendments 35, 45, 46 and 47. These amendments would broadly remove the restriction of deferred prosecution agreements—DPAs—to corporate bodies, partnerships and unincorporated associations by permitting DPAs to be entered into with individuals and would instead restrict DPAs to cases where a sentence of imprisonment would not be likely on a guilty plea. The later amendments in my name, along with the amendment in the name of the noble and learned Lord, Lord Goldsmith, would widen the offences for which DPAs might in future be permitted beyond the range of financial or economic crimes.

To put these amendments in context, I welcome the innovation represented by the introduction of DPAs into this country by this Bill for two principal reasons. First, they are an effective device to ensure that criminal behaviour—sometimes very complex criminal behaviour—is met by a sanction. The compulsory imposition of a financial penalty, which is the subject of an amendment in my name in the next group, would ensure that that was the case. They bring about a saving of trials which in this country are, and have been, notoriously uncertain of outcome, as well as extremely expensive, so that they have used up a very large part of the criminal justice system’s overall budget. Secondly, they offer an opportunity for prosecutors to agree a programme of compliance requirements with offenders, and thus offer a chance to change behaviour, so they are part of the toolkit of the rehabilitation revolution, about which we have heard so much in the context of the Bill.

DPAs are for use only in suitable cases. It is important to avoid the worst excesses of such arrangements in the United States where it has been said that they have been used as the rich man’s route to plea bargaining. I suggest that they can and should be used to achieve voluntary compliance in the future with the requirements of the law across a range of fields. The limit on that is that it should not be acceptable for DPAs to be agreed where otherwise a sentence of imprisonment would be appropriate.

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It follows that Amendment 23 removes the requirement that a DPA may not be agreed with an individual. In support of that amendment, I ask rhetorically the question, why the distinction? Why should it be that a criminal offence by a corporation, a partnership or an unincorporated association should be treatable by a DPA, but not an offence by an individual? As I suggested in the Second Reading debate we had in Committee, the question is not whether an offender is an organisation or an individual but whether the nature of the offence is suitable for a DPA. The distinction has been drawn that an individual can be imprisoned and an organisation cannot. But I suggest that that distinction is artificial because it is of course possible to provide that DPAs will be entered into only in cases where imprisonment would be unlikely in the case of an individual.

At Second Reading, my noble friend Lord Phillips of Sudbury suggested to me that nothing in the Bill explicitly stated that DPAs were not appropriate for an offence warranting imprisonment. The answer is that in the Bill as it stands such a provision would be unnecessary because it applies only to corporations, partnerships and unincorporated associations. But if it were extended to individuals, I suggest that it would be necessary to make it clear that it was not to be seen as an alternative to imprisonment.

I quite take the point made by the noble and learned Lord, Lord Goldsmith, at Second Reading, that, because of the behaviour-changing arrangements that can be made in DPAs, they might in some circumstances be suitable for drugs offences and the like which would otherwise warrant a sentence of imprisonment. At this stage at any rate, with this very new procedure, I would be wary of introducing a system that could be seen as allowing offenders effectively to buy their way out of a sentence of imprisonment.

Hence, under Amendment 35, we confine DPAs to offences not warranting such a sentence even if the limit to individuals were to be lifted. That would happen at the preliminary hearing where, on the application by a prosecutor for a declaration that a DPA might be appropriate, that would not be able to be granted were a sentence for imprisonment to be appropriate.

Amendments 45, 46 and 47 in my name and Amendment 44 in the name of the noble and learned Lord, Lord Goldsmith, concern the types of offences that might be made the subject of DPAs. The noble and learned Lord’s amendment would effectively allow the addition of any offence by removing the restriction to economic and financial crime. I should make it clear that my amendments are sample amendments only. They are not intended at all to be exhaustive and I have not attempted to conduct a trawl through the statute book to look for appropriate offences. They are intended to be probing and to give examples only of the way in which categories of offences might be usefully made broader.

Amendment 45 suggests that,

“a breach of regulations which is not punishable by imprisonment”,

taken at its broadest, might be an appropriate amendment. Amendment 46 deals with environmental offences under the Protection of the Environment Act. Some of those are punishable by imprisonment as well as by fines

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but, were the restriction to be only to those offences which would not be likely to warrant a sentence of imprisonment, that would be appropriate.

Similarly, health and safety offences seem to me—as indeed they seemed to be to the noble and learned Lord, Lord Goldsmith, at Second Reading—to be an appropriate area for such broadening of the offences. I have some experience from practice of the way in which the Environment Agency operates in respect of cases of environmental pollution. In fact, it has been operating for some time on the basis that it will agree not to prosecute offenders in circumstances where the offenders agree to pay compensation to clean up pollution and to put in place with the Environment Agency programmes of compliance with legal requirements for the future. That system works well and I suggest that it could be extended on a formal basis, as is suggested in the schedule, far more widely.

I ask noble Lords to support these amendments, and for the Minister to consider taking them back and doing something with them.

Lord Phillips of Sudbury: I am not getting at my noble friend because he referred to my intervention last time, but I hope that he will forgive me if I am misunderstanding this. Perhaps other noble Lords are also unsure as to the impact of the removal of the words, in paragraph 4 on page 261, line 32,

“but may not be an individual”.

Does that not mean that the only persons who may enter into a DPA with a prosecutor are the ones mentioned, namely,

“a body corporate, a partnership or an unincorporated association”,

so the removal of the words in his amendment will not actually make any change?

I see that my noble friend has tabled Amendment 24, which does refer to individuals. However, I wonder whether that is not, so to speak, negatived by the removal of those words; but, as I said, I may well have got this wrong.

Lord Marks of Henley-on-Thames: My Lords, my noble friend is, as always, entirely on the ball. My amendment is wrong in exactly the way that he mentioned. It should be “or an individual” rather than,

“but may not be an individual”.

So the words that ought to go are, “but may not be”, to be replaced by the word, “or”. For that, I apologise, and I hope that I will be allowed to alter my amendment accordingly. I am not proposing to press it in any event, but we can bring it back on Report if necessary, in a better form.

Lord Goldsmith: My Lords, I will speak to Amendment 44 standing in my name, but I want to speak to Amendment 23 as well. Before I do that, and so that I do not have to repeat this on later groupings, I want to repeat the declaration of interest that I made on 30 October at col. 575. I also want to repeat my belief that this is a very useful addition to what the noble Lord, Lord Marks, has described as the armoury for prosecutors and for law enforcement agents. I think

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that that is absolutely right. On 30 October, I explained how I had been thinking about this when I was in office and, indeed, I introduced at the other end of the scale of offending something that was equivalent: conditional cautions. I believe that this is worth while and I think that the former Solicitor-General, Sir Edward Garnier, deserves credit for having pushed this forward. I had the benefit of talking to him about this before these amendments came forward into this Bill. So I do support them in principle. The few amendments that I have put down are designed to try to make it as workable as possible, given that the principle is there—others may take a different view about the principle—and to make it as useful as possible.

There are some technical amendments but also one or two that relate to the scope of DPAs. I want to underline the fact that I am very grateful to the noble Lord, Lord Marks of Henley-on-Thames, who has made this point. The important issue about a DPA is that it is not just punishment. It can become punishment, but it is about changing behaviour and about compliance. It is a carrot and stick approach.

On the point raised by Amendment 23 about whether this should be capable of being extended to individuals, I repeat what I told the Committee on the previous occasion, that it was actually in the context of individuals that I first saw the benefit of arrangements of this sort. The noble Lord, Lord Marks, has referred to drug offences, and he is quite right. I saw in operation in the United States deferred prosecution agreements being used as a powerful tool to change the behaviour of people who were drug offenders and who seemed incapable of holding down a job and therefore living a life beneficial to themselves, their family and the general public. This was achieved by the combination of a strong statement that if they did not comply in particular ways—taking drug tests regularly, staying clean, following the advice of probation officers or the equivalent—they would suffer serious imprisonment, and the inducement that if they did comply, not only would they not go to prison but they would not have a conviction either. That could be very important to them in terms of getting jobs in the future. On more than one occasion, I watched judges who were speaking on a very direct basis to offenders, reminding them of their obligations and saying, “This is what you have got to go through. This is how you have to comply if you want to get the benefit of this arrangement”. So I think that this is potentially very valuable for individuals, and I ask the Government to think again.

The noble Lord, Lord Phillips of Sudbury, is of course right about the technical issues on the amendment, but I think that the purpose behind it is very clear and, if the principle were accepted, I am sure that the Government would sort out the precise wording to make it work. I do not think that the noble Lord can change the amendment while on his feet.

In the same context, I turn to Amendment 44 in my name.

8.45 pm

Lord Phillips of Sudbury: I am most grateful to the noble and learned Lord for giving way. Does he not have a residual concern that if one allows individuals

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into this plea-bargaining regime it could give rise to the sort of scandal that my noble friend Lord Marks referred to of rich, powerful and well lawyered individuals escaping the opprobrium of prosecution and appearance in court that might otherwise be the way forward?

Lord Goldsmith: I am not concerned about that for this reason. There are two very powerful safeguards in the Bill that should prevent that. First, the DPA has to be agreed by a prosecutor and, as the debate on the previous amendment demonstrated, not just any old prosecutor but either the Director of Public Prosecutions or the director of the Serious Fraud Office—or, possibly, a person designated by the Secretary of State. I leave aside the locum tenens that might come in; the Minister will tell us at some point how likely that will be. First, the prosecutor has to decide whether it is appropriate. Having spent, as the Committee will know, a lot of time with prosecutors when I was in office, I had a high regard for their understanding of what the public interest and public reaction is. They know when people need to go to prison, if they are convicted, and they know when it is appropriate for them not to do so. We can rely a great deal on them to decide which cases are appropriate and which are not.

There is then a second safeguard. Under the Bill as it stands, it has to go to court twice, and the court has to be satisfied that it is appropriate and proportionate for such a step to be taken. Those safeguards mean that one can be much more relaxed about the risks to which the noble Lord, Lord Phillips of Sudbury, refers. Of course, I would entirely agree with him that if we had a situation in which the system operated only to the benefit of the rich it would be wholly unsatisfactory. That is one reason why I think that extending the ability of DPAs so that they cover the sort of offence that I have referred to and individuals would meet part of that concern. If anything, I am worried that by limiting this to economic crimes for companies and partnerships one sends the very message that the noble Lord, Lord Phillips of Sudbury, does not want to be sent. I invite the Government to think very hard about that.