My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 15 [Conditional cautions: types of condition]:
Page 9, leave out lines 13 and 14.
The noble Baroness said: In moving Amendment No. 93 I shall speak to Amendments Nos. 95 and 96. We now return to the issue that we broached briefly on Tuesday evening, a subject which the Government refer to as an extension of summary justice, whereas what is happening in practice is an extension of administrative punishment.
The Secretary of State has the power to increase by secondary legislation the maximum penalty that may be imposed when a conditional caution is applied. At present the maximum of community punishment is 20 hours. The maximum fine is either one-quarter of the amount of the maximum that could be imposed in the court—that is, a quarter of £5,000 for the greatest offence involved—or a maximum of £500, whichever of the two sums is the lower. That is the position which the Government have provided for in the Bill as drafted. My Amendment No. 93 would remove the Secretary of State’s power to change the 20 hours by order. Amendment No. 95 would remove the power to change the financial maximum by order, and Amendment No. 96 is consequential.
The noble and learned Lord will be aware of the concerns that have been expressed about the potential expansion of the power to impose punishment without the involvement of a court. The Magistrates’ Association has said this about the breadth of the powers currently proposed:
“We are very alarmed that the Secretary of State should be given powers to increase these potential penalties in the future. It opens up the possibility of more serious offences, rather than the extremely low level ones, being dealt with outside a court”.
When this matter was debated in another place the Minister sought to assure the Committee there that conditional cautions would not be used in the context of more serious crime. The Minister said:
“There is clear guidance from the Director of Public Prosecutions about the kind of offences that should be subject to conditional cautions. Because the conditions are set lower than the fines and punishments that magistrates courts can impose, it clearly is not appropriate to stray into that serious crime area”.—[Official Report, Commons Standing Committee D, 23/03/06; col. 167.]
But the Director of Public Prosecutions’ guidance on conditional cautions does not provide the assurance against punitive conditional cautions being used to deal with more serious offences. On the contrary, it states:
“there will be indictable only offences, [i.e. offences which are so serious they may only be tried in the Crown Court], in which a caution is appropriate because of the offence or the offender”.
That is quoted from the CPS website, section 3.
I note that Norman Brennan, the director of the Victims of Crime Trust, has described the idea of extending punitive conditional cautions as “nonsense”. He is quoted in the Daily Mail of 25 June as saying:
“What sort of deterrent is this? The Government talks about the need for common sense, and that is certainly what the public wants, but this is the opposite”.
It is important that we should listen to views expressed in those terms.
As the Minister in another place identified, the most realistic safeguard against the use of conditional cautions to deal with serious offences is a restriction upon the severity of the punitive condition that may be imposed. It is exactly for that reason that our amendment proposes that the Bill should prevent secondary legislation being used to allow more serious penalties being imposed and should contain an exhaustive list of conditions which may be included. I shall be interested to hear from the noble and learned Lord what the Government propose to do in response to the recommendation at paragraph 27 of the Delegated Powers and Regulatory Reform Committee’s report.
However, my concerns go far deeper than just whether or not the statutory instrument should be dealt with by the affirmative or negative resolution procedure. Here we are addressing the very real issue of the potential future expansion of administrative punishment by the decision of the Secretary of State, and especially being expanded by secondary legislation. We consider that this should be undertaken only when it is proved to be necessary, effective and fair. So far I am not persuaded that Clause 15 fulfils that requirement, hence the series of groups of amendments that we have tabled—this being the first. I beg to move.
I believe that this is the first Committee over which the noble Baroness the Lord Speaker has presided. If it is, I very much hope that she will enjoy the day as much as I am sure the rest of us will. I welcome her to her post.
Amendments Nos. 93 and 95 propose to remove the power of the Home Secretary to vary the maximum hours of attendance and the financial penalty that can be attached to a conditional caution. The reason for including those provisions is obvious: it is important to have a power to amend those maxima if circumstances demonstrate that they need to be changed over time. If there is not a power to deal with them in this way, it will be necessary to find a slot in primary legislation to make what would probably be small adjustments. The time of this House and of the other place to initiate primary legislation is always precious. I am therefore not able to support the amendments to remove the power to vary those, but I hope that I can none the less offer reassurance on Amendment No. 96, which proposes to make the power to vary the maximum financial penalty by order subject to parliamentary scrutiny by affirmative resolution.
The noble Baroness has rightly reminded the Committee that the Delegated Powers and Regulatory Reform Committee has recommended that the affirmative procedure should be used for both the power to change the maximum financial penalty and the power to amend the maximum number of hours of attendance, except where the change is solely to take account of changes in the value of money. We have considered the recommendation and propose to table an amendment on Report to meet those concerns and to take account of what the Delegated Powers and Regulatory Reform Committee said.
The noble Baroness has also made broader observations on the conditional cautioning powers. As I said when opening this debate in the previous sitting, it may be more economical of time if I address those remarks when we come to the clause stand part debate which I think is to follow shortly. At this point I shall only say that I do not for a moment accept the proposition that conditional cautions are nonsense, if that is indeed a correct attribution to the gentleman quoted in the newspaper to whom the noble Baroness referred. It certainly is not nonsense to have conditional cautions; they are working at the moment. The noble Baroness and I agree in principle that we need to see that what is being done is, as she says, necessary, effective and fair. I do not have any disagreement with any of those adjectives. It may transpire that we will disagree on how they apply in particular circumstances, but we do not disagree on the objective. For the time being, I invite the noble Baroness to withdraw her amendment.
First, in quoting how Mr Norman Brennan was quoted in the Daily Mail, I hope that I made it clear that he was referring to a specific change from what appears to be the current practice to the future one. His response that the changes were “nonsense” refers particularly to the imposition of punishment as a matter of conditional cautions rather than to the current conditions of reparation and rehabilitation. His major concerns arise because conditional cautions impose punishment in the future coupled with the fact that order-making powers make it possible for a much broader range of offences to be included. We will be able to develop the point in the debate on Clause 15 stand part.
The noble and learned Lord follows the line which I suspect any Government would take: “Do not take any order-making power away from us; we want flexibility. We do not want to take up the House’s time with primary legislation”. In most cases that is a proper argument, and in many cases a solution can be found by using the affirmative rather than negative resolution procedure. I am grateful for the noble and learned Lord’s indication that the Government intend to adopt the Delegated Powers and Regulatory Reform Committee’s recommendation that the affirmative procedure is to be preferred. If that is the case and the fine level—the monetary punishment—can be changed by order simply to reflect changes in the value of money, it is only sensible that it should not have to be changed through the affirmative procedure.
My broader concern is that substantial changes in how we mete out administrative punishment may not necessarily be properly carried out by an order-making process. Changes to the criminal justice system are occasionally so significant that they should not be relegated to secondary legislation. I will consider the matter very carefully over the summer months, once we have had the opportunity to debate these amendments and to discuss the matter more fully before Report. Although I am very concerned about the potential for order-making powers to be used to increase administrative punishment very widely, for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 9, line 26, at end insert-
“( ) Subject to subsection (3), the amount shall be commensurate with the financial resources of the offender.”
The noble Baroness said: We now approach the issue of conditional cautions from a more practical and different angle. The amendment would require that any fine imposed on a conditional caution should reflect the financial resources available to the offender. The danger is simply that, without this guarantee, the option of a conditional caution could in some circumstances be only for the rich—one law for the rich, to escape a court appearance—while the poor would be left without such a choice.
The Minister in another place sought to argue that the requirement that the suspect consents to the caution should deal with that concern. When we broached the first relevant group of amendments on Tuesday evening, the noble and learned Lord immediately referred to the fact that conditional cautions are imposed only with consent. We think that that can be a rather ingenuous argument because it misses the point. The person who cannot afford to pay a fine has no choice. They cannot accept a conditional caution. They have to go to court. By contrast, those with financial means will be able to buy their way out of a court appearance.
The CPS conditioning code of practice—I am sorry, I mean cautioning code of practice; perhaps it was a Freudian slip as the code is also conditioning—makes it abundantly clear that the process for agreeing to conditional cautions would not make any allowances for the ability to pay a fine. The noble and learned Lord looks puzzled. He may well be able to give a much better explanation of the code of practice than I can as it is in his immediate domain. But I quote from guidance issued by the Secretary of State under Sections 22 to 27 of the Criminal JusticeAct 2003. It states:
“There should not be any bargaining with the offender over the conditions: if he does not accept them in full, he should be prosecuted”.
The amendment simply seeks to address the risk of a two-tier system arising from the ability to impose fines on conditional cautions. It would require the offender’s financial resources to be taken into account when setting the level of the fine. That would recognise that not all offenders have the same financial resources and ability to pay a fine. I beg to move.
I was looking quizzically at the noble Baroness simply because I wanted to know what she was reading from. That is not intended in any sense as a dismissive remark. I was just not sure which document and section she had in mind. She said Section 22, but I am not sure that I can find it.
I apologise. I had just asked my Whip to clarify a different matter—not this one—which concerned me. No discourtesy was intended to the noble and learned Lord.
The note which I have is from a briefing given in another place. It is guidance issued by the Secretary of State under the Criminal Justice Act 2003, Sections 22 to 27, which was obtained from the Home Office website some while ago. I did not check the website myself but it was quoted in another place. Perhaps that will be of assistance.
The noble Baroness was very generous in what she said at the start. I intended no hint of criticism at all; I was just trying to find the section.
On the substance of the amendment, as I understood it, the noble Baroness made the point that the code of practice states that if the offender does not accept the conditions, then he will be prosecuted—not that there is anything in the code that for one moment suggests that you should not consider the offender’s resources in determining whether it would be appropriate to impose a condition. Indeed, as there is currently not a power to impose a fine, that issue does not arise.
Let me be very clear: there is absolutely no question of our wanting to create one law for the rich and one law for the poor. From this side of the Committee, if I may say so, we certainly would not want to do anything of the sort. Prosecutors will have to take into account a range of factors in determining what conditions it is appropriate to impose, and that will be applied to everyone. But the overriding requirement will be that the conditions are proportionate, achievable and appropriate to the offence and the offender. Plainly, if an unduly high financial penalty were proposed for an offender who was not in a position to meet it, that would mean that the condition was neither achievable nor appropriate. I would not want to see one aspect of those considerations singled out in the Bill when the overriding question should be whether the conditions overall are proportionate, achievable and appropriate to the offence and the offender. On that basis, I cannot accept the amendments.
However, I take the opportunity to underline that this is not something that an offender is compelled to accept—a point that we have to keep in mind throughout this debate. The noble Baroness said—and it is important to underline it—that the offender has a choice of whether or not to accept the conditions that are proposed. If the offender does not choose to accept those conditions, the matter will go to court, where the magistrates—we are talking about low-level offences and so it will be magistrates—will determine what penalty to propose. Of course, when magistrates propose penalties, they take all the circumstances into account. I know very well that magistrates look to an offender’s ability to pay in determining whether to impose a financial penalty and what it should be. So that will, in any event, condition the way that conditional cautions are offered as an alternative to prosecution.
Lest there be any misunderstanding outside this Committee—I am sure that there is none within it—perhaps I may underline again that the current guidance to which the noble Baroness referred does not deal with financial penalties, because it has been written before such additions are possible. There is absolutely no question of that guidance saying, “Please, if you find a rich person, let them off with a fine, but if it is a poor person, send them to court”. That is absolutely not the case and I want to stamp on that suggestion as hard as I possibly can.
Certainly I cannot imagine that the noble and learned Lord would do anything other than that. We are dealing with two matters here. The noble and learned Lord is absolutely right to say that any existing guidance cannot deal with levels of punishment because punishment is the novelty of this Bill—and, as the Government have already said, a significant development. But the difficulty is that, unless we know what guidance there is from the Government to deal with the proper and fair allocation of financial punishment, we will not know how fair and effective this new provision will be. So we are in a cart and horse situation here. My concern is that we will be asked to agree to a provision when we do not know how people's ability to pay will be taken into account.
Furthermore, if the Government come forward with their guidance in time for us to consider it and they say, “This is how the CPS is going to be told to apply the offer of a conditional caution. This is how it is going to look at the finances of the person, and it will reflect the ways in which a magistrates’ court operates and takes things into account”, they know full well that we are likely to come back and say, “Ah, but of course the Government are trying to supersede the role of a court”, and they could find themselves in a cleft stick situation. The noble and learned Lord shakes his head, but there is a fundamental question here of how far courts’ functions could be encroached upon.
Of course, I am delighted that the noble and learned Lord has made it clear that there will be guidance to ensure that the imposition of a fine will be proportionate. Underlying it all, the difficulty is that if there is not a proper way of judging what the financial penalty should be, we will still end up with a situation where a person has a real choice in the matter only if they can afford to pay. We can go no further forward on this rather narrow amendment at this stage, so I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 95 and 96 not moved.]
On Question, Whether Clause 15 shall stand part of the Bill?
Because of some of the contributions made by the noble and learned Lord, I can be briefer than I might otherwise be, although there are some issues that I need to raise, having given notice that I do not believe that Clause 15 should stand part of the Bill.
This is entirely a probing measure at this stage. My colleagues in another place made it clear that we did not oppose this clause going into the Bill. Our view was that we should see how the provisions in the clause were allowed to develop, consider whether it was effective and see whether the Government tried to expand its use too rapidly. Since these matters were discussed in another place, the Prime Minister announced that he intends to extend the use of administrative punishment substantially. That is a recent development. I should be grateful if the noble and learned Lord could put on the record exactly how that extension of administrative punishment will be achieved. Will what the Prime Minister announced require entirely new legislation? Will some or all of it be capable of being introduced via the primary and secondary legislation already in the Bill?
I am going to quote the noble and learned Lord from the Daily Mail, so he will know directly whether it has got it hopelessly wrong or is correct—who knows which? The Government may be prepared to agree with press quotations for a change; we shall live and learn. On 25 June the Daily Mail quoted the noble and learned Lord as saying that he wanted to have much greater use of conditional cautions, echoing the Prime Minister’s view of 23 June. The noble and learned Lord was quoted specifically as referring to punishments comprising,
“a maximum penalty of £500 or 20 hours’ community service”.
When I read that, I thought, “That is what the Bill says anyway”. Is the noble and learned Lord telling us that the Government have marvellous plans for the future and that they will use what is here for their future expansion of justice? The quotation may be wrong, or I may be misjudging him.
Will the noble and learned Lord make a clear statement about the consequences of accepting a conditional caution now under the Bill? Does it mean that a person will not have a criminal record for that offence? Will he give the Committee the figures on reoffending rates for those who have already accepted conditional cautions? It is essential to have such relevant information before we can properly consider whether the clause as drafted should stand part of the Bill.
If we removed Clause 15, we would keep the current legal position whereby the only conditions that could be applied to cautions would be those intended to facilitate the rehabilitation of the offender, or to ensure that the offender makes reparation for the offence. The debate goes to the heart of whether the Government would be right to press ahead with these plans for extending administrative punishment. I hope that the Government would never seek to portray those of us who are tabling amendments on this matter as trying to penalise victims and as being in favour of the suspected offender. Nothing is as simple as that in the world of offenders and offending.
I realise, of course, that the person accepting the caution will have admitted their guilt as part of the process. As an ex-magistrate, I would certainly be concerned about the possibility that some people will accept a caution even when they are not guilty rather than go to court, and that the guilty will accept a caution, recognising that with their previous experience of crime they might well receive a lower punishment than if they went to court. Where is the public interest in that? Concern has been expressed both outside and inside Parliament that the power to impose punitive cautions will effectively allow the police and the CPS to act as investigator, prosecutor and judge.
The Magistrates’ Association, for example, states that it considers it,
“contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary. A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities”.
The Government’s response has been to repeat their previous press release about,
“rebalancing the system in favour of the victim”.
Of course, I say here and now that I have as much concern for victims of crime as any government Minister. Having sat as a magistrate for many years until I came to this House 10 years ago, however, I am also aware of the importance of careful reflection before punishment is imposed. Punishment is sentencing; we cannot get around that. Careful reflection should be based on thorough judicial training. I would much prefer that which cases should be sentenced in court was decided through statute, rather than giving prosecutors discretionary powers to impose punishment. A clear line should be drawn between an alternative to prosecution, which is what conditional cautions are intended to be in the Criminal Justice Act 2003, and the imposition of a sentence, which we appear to be marching towards.
Existing fixed penalties and penalty notices for disorder, and simple conditional cautions, are alternatives to prosecution. That seems right. An alternative to prosecution can properly involve reparation or measures to help rehabilitation, provided the matter being dealt with is genuinely minor. A disposal imposing punishment that involves an element of discretion becomes a form of sentence. That is where we must discuss whether it should be reserved for the courts, and not given as a power to the prosecution.
Will the Minister confirm that offences for which a caution can be administered include: ABH; affray; criminal damage; possession of class A or B drugs, albeit a small quantity for personal use; having a bladed article in public; carrying an offensive weapon; burglary—non-commercial, non-residential—and theft? These are not necessarily just minor and low-level. If dealt with outside a court, there is no public knowledge of them. Where would the public accountability be? Judges and magistrates take an oath, receive training, operate in public and must announce the reasons for a sentence in open court, including any departure from sentencing guidelines. It is not the same for prosecutors. Where is their accountability?
The Government have quoted Lord Justice Auld as supporting conditional cautions. In his 2001 review of the criminal courts, he said there was,
“scope in England and Wales for the introduction of a more general, formalised and conditional cautioning system”.
However, he also said:
“Any such scheme should, save for the most minor offences, be the responsibility of the Crown Prosecution Service and subject to the approval of the court. Without the protection of the court’s approval, its use could be used or perceived as a ‘cop-out’ by the prosecution to avoid prosecuting cases that should be prosecuted, or of innocent”,
“being at risk of pressure to accept onerous compromises to avoid prosecution, or of the rich being able to buy their way out of prosecutions when the poor could not”.
The Select Committee on the Constitution also considers this provision a constitutional novelty. Of course, there is nothing wrong with novelty; it is quite right. One must refresh and renew all the time, provided one challenges those views with a bit of practicality. The committee goes on to make a telling point:
“It may be thought to sit uneasily with the principle of the rule of law, an element of which is that it is for independent courts—not the police or the prosecuting authorities—to punish criminal wrong-doing. This much has been enshrined in English constitutional law by the Bill of Rights 1689, which provides that ‘fines and forfeitures of particular persons before conviction are illegal and void’”.
Of course, I agree with the Select Committee: the clause sits too uneasily with the rule of law. As yet, the Government have not quite justified the inclusion of Clause 15 in the Bill.
I endorse the argument of the noble Baroness, Lady Anelay, which is the argument I made the previous day in Committee. I emphasise that it is fundamental to change cautions from an alternative to entering the criminal justice process to being non-punitive in their objective. I was a magistrate at one time, but am now much more involved with children and young people in the criminal justice process, and I feel that introducing this punitive element without an emphasis on reparation and rehabilitation risks putting children on to the slippery slope. We need to be positive in our approach to and dealings with young people, and to emphasise the value of reparation—making good and paying back for any admitted offence—and rehabilitation. We undermine or diminish that at our peril.
When I read Clause 15 I was saddened, for the reasons that have been given in this debate. In a week when the Government have pushed through a clear separation between the legislative and judicial aspects of society, it is odd to see the confusions being introduced when punishment is taken out of the realm of the courts alone. If we go back to the origin of public courts, in Old Testament days and no doubt in other societies, they were to take the administration of justice out of the private and individual sphere and into the public sphere. It is essential that the administration of justice is a publicly recognised, accountable and observed process. Obviously, in any society there will be minor issues on the edge of the justice system that can be dealt with by fixed penalty notices or the caution system that has grown up and has recently been extended. But to introduce the principle of punishment into the operation of the work of the police and the Crown Prosecution Service detracts from the principles of public justice that have been so much part of our society.
It has been mentioned that the Government want to rebalance the system in favour of the victim. I do not see how this does so because victims need publicly observed and accountable justice. In parenthesis, I add that it is a great mistake for victims to be paraded before the courts to influence judges in the sentences they pass. It is against the principles of justice—this is a different matter, but it bears on what we are saying—if in the future, if victims are particularly upset, a greater penalty will be imposed. That is against the principle that justice is administered on behalf of society as a whole, which is why we have public courts. I think that is what lies behind the reservations of the Magistrates’ Association.
I also fear that it is not good for the police to do this. In our society, the police need to have a clearly defined and upheld role. In recent years, I have been saddened to see the police engaging in public political debate more than has been healthy for them. By all means, they can have private views and express them to the Government, but it has been a mistake to over-politicise the police. At the other end, it would be a great mistake if the police started to be seen as junior magistrates, which is the danger in these proposals. I hope that even at this very late stage the Government will see that the best response to the large prison population, the cost of the justice system and the rise in anti-social behaviour is not this sort of approach, but other approaches that will get to the root of what is happening.
I tend to agree with the right reverend Prelate that justice should be objective and not moved in a subjective direction by over-consideration of victims’ points of view. I understand that the Question on whether to leave out this clause is intended to be probing. The clause has considerable merits because it enables a considerable extension of restorative justice, which I happen to believe in.
I understand that conditional cautions have been in use for some time; for example, by Thames Valley Police and possibly other police services around the country. In the case of Thames Valley, has the Crown Prosecution Service always been involved? It is important that, in using conditional cautions, delay is avoided and offenders who are thought to have committed relatively minor offences are dealt with as swiftly as possible.
The three points at the bottom of page 8 are of considerable importance. Punishing offenders is usually by means of a fine, but one should think of the offender making reparation to society in general as well as to victims of the offence. I think it goes without saying that all your Lordships would approve very strongly of using conditional cautions to promote the rehabilitation of the offender.
I am grateful to all who have taken part in this debate. It is important to debate these issues. I recognise that the noble Baroness’s Question is probing and therefore we will return to these issues, but it gives me an opportunity to set out one or two things.
The conditional caution scheme in place was established under the Criminal Justice Act 2003. It provided the police and the Crown Prosecution Service with a new disposal for dealing with low-level offenders who were prepared to admit to their offences and who, if prosecuted, would probably have received a nominal fine, been ordered to pay compensation or been given a conditional discharge at the magistrates’ court.
The noble Lord, Lord Hylton, is absolutely right that conditional cautioning is taking place in Thames Valley; it is one of the implementation areas. I can give him a bit more information about that outside the Chamber, if he would find it helpful. The noble Lord asked whether the CPS had always been involved. Absolutely, yes, because the scheme approved by this Chamber and by the other place was that conditional cautions would require the prosecution to decide the matter, obviously in co-operation, collaboration and discussion with the police.
That it is the prosecutor’s decision is very important, and, to some extent, it may meet the point raised by the right reverend Prelate. But it is the prosecutor and not the police deciding the conditional caution, although the latter have powers, to which I will return. The prosecutor must do that while recognising their professional responsibilities—they are sometimes described as a minister of justice—and being directly accountable to the courts for what they do. I have seen that from time to time, when judges or Benches of magistrates have called in the local prosecutor and asked, often in open court “What has been going on here?” That is perfectly proper in appropriate cases.
The very real benefits of conditional cautioning are: securing speedy redress for victims and enabling the offender—I emphasise, speedily—to tackle the factors that have contributed to his offending. I want to emphasise the benefit to the victim. Absolutely rightly, the right reverend Prelate asked what that meant for the victim. If I may say so, I am not convinced that he is right to say that victims always want to see things happen in court. Often, victims want something that deals with the situation speedily. I fear that at present, for all sorts of reasons—which we are trying to tackle, and we will come back to that issue—delays in court can be such that victims do not see a speedy response to the problem caused to them. On the contrary, it is dragged out: there may be adjournments; eventually the matter comes to court, at which stage the victim may be required to relive the experience and, at the end of it, to receive no more than could have been done under the conditional cautioning scheme a long time before.
I recently referred publicly to a case in Lancashire where an elderly lady who had been the victim of some violence to her property was pleased that the property had been fixed by the young man and that he had apologised to her in a way that made her feel that the problem was solved. It also clearly drove home to him the consequences of his offending behaviour, because he had to confront, as it were, and address the problem that he had caused to an actual person. Again, the noble Lord, Lord Hylton, is absolutely right in saying that restorative justice can be very valuable in that way, although it is obviously not appropriate in all cases.
The conditions attached to the caution can take specific account of the needs of the victim and therefore give the victim a voice without the need to go to court. The conditional caution code of practice, to which the noble Baroness referred in our previous debate, makes clear that victims’ views should be taken into consideration by prosecutors when determining whether a conditional caution is a suitable disposal. That is important and I am sure that we will want to keep that as part of the future use of conditional cautions.
What is a conditional caution? Here, I answer one of the questions put to me by the noble Baroness, Lady Anelay. It is not a court sentence. It is not a criminal conviction. It is an admission of guilt, which can form part of an offender's criminal record and may influence how they are dealt with in future proceedings, in the same way as can a simple caution. It can be quoted on a standard or enhanced disclosure issued by the Criminal Records Bureau and made known to a prospective employer—the Committee may think that that is right.
I return to the point about the relationship with the magistrates’ courts. I hope that all Members of the Committee will recognise that the rule of law is something which I and the whole of the Government take very seriously and regard as very important. We must recognise what it means operationally. At the moment, there is considerable pressure on magistrates’ courts. Cases can take a long time to get there, with many adjournments. The pressure on the magistrates’ courts will not lessen; it may get greater because, under the Criminal Justice Act, they will have increased sentencing powers once that part of the Act is brought into effect. That will increase the volume of work that we will ask them to do—because we trust them and recognise the very important role that they play in society and in the community. We want to say, “Let us remove from you straightforward, simple, low-level offences where there is a guilty plea. That will free up your time to deal with the more serious, complex and contested cases”.
Early implementation of the scheme in the past 14 months in a number of areas has highlighted the benefits of conditional cautions so far. However, the feedback that we have had from the police and the Crown Prosecution Service in the early implementation areas is that the benefits of the scheme are limited by the current restriction on the aims of the conditions that can be imposed, which must be reparative or rehabilitative. In particular, experience showed that the existing power in Section 22(3) did not give the flexibility needed to respond to offenders individually. Some offenders who should have got the benefits of the scheme were simply falling out of it for that reason. At the moment, conditions would need to be reparative, in which case the victim needs to be identifiable with a quantifiable loss and willing to accept reparation or rehabilitation, such as dealing—it is important that we should do this—with the underlying problems, such as drugs, alcohol and so forth.
A particular problem was that it was thought that we could not use the existing conditions to provide indirect reparation. The noble Lord, Lord Hylton, has given one instance of indirect reparation through paying something back to the community. I shall be even more specific. If an offender produced some graffiti, it would be reparative to require him to take off that graffiti, but you could not require him to do so if you could not identify the graffiti for which he was responsible or if it had already been cleaned up by the local authority or the building’s owner. Our interpretation of the Act is also that you could not require him to clean up other graffiti. Noble Lords might think that that is exactly the sort of situation in which you would want to consider being able to make a suitable offender see the consequences of his offending behaviour by doing something that is directly related to it.
Clause 15 would therefore enable the scheme to apply to a broader group of offenders. It would include cases where direct reparation is not possible because of practical factors such as the victim’s reluctance, the harm having already been remedied or the victim being the community at large. It would also include cases where the offender has acted out of character by committing the offence and has no discernible personal problems that contributed to the offending that demanded rehabilitation. Paying a financial penalty, undertaking unpaid work or attendance would be possible conditions. Yes, it is right to describe the measures as punitive, but they would also have a deterrent effect and an indirect reparative effect in the way that I have described.
Noble Lords have referred to what Lord Justice Auld said about financial penalty in his report, and we should bear it in mind that fines by prosecutors have been a part of the system in another part of this Kingdom—Scotland—for a long time. I understand that they are not only accepted but welcomed in the community as a way of diverting low-level offending away from the court without the need for a court appearance. So welcome are they that there are proposals to increase the limit for those fiscal fines. Other countries use a similar system, and although, as I have said, I am very strongly in favour of the rule of law, I do not believe that in Scotland or in those other countries, allowing these conditions to be imposed in any sense undermines the rule of law.
In that respect, I want to underline some very basic points. This does not apply except to an offender who admits his guilt. If someone contests his guilt, he goes to court. That will not change. If the prosecutor cannot decide whether he is guilty and cannot impose a caution, he goes to court. Secondly, he is under absolutely no obligation to accept the caution. Again, as I said, if he does not agree with the conditions and prefers to take his chances with the court, he is absolutely free to do so. Those are the key constitutional issues. The court will determine guilt where that is contested. Ultimately, the court is there to fix the penalty if the offender does not like the conditions proposed to him.
On the previous day in Committee, the noble Baroness asked about the degree of consultation. I regret the fact that the earlier stages of developing our plans did not involve as much consultation with the groups that she identified as it should have done. But consultation has been taking place. My noble and learned friend Lord Falconer, the Lord Chancellor, and I have discussed these conditions with magistrates, judges and officials from the Office for Criminal Justice Reform. The office of my noble and learned friend Lord Falconer and my office have held discussions with representatives of the Magistrates’ Association and members of the senior judiciary. There has been at least one consultation with the Criminal Justice Council on which Victim Support is represented. At a local level, areas have engaged with victims groups and voluntary organisations. I am very happy, as is my noble and learned friend, to continue all such discussions. It is important that we debate these things.
From time to time, reports appear in newspapers suggesting different things to those which the Government propose. The noble Baroness, Lady Anelay, referred to a report in the Daily Mail, which rather remarkably quoted me as referring to the present proposals as if they were something else. She may not be entirely surprised to hear that I have not spoken to the newspaper. I think that it was quoting from a speech about this Bill rather than something else, but there we are. However, it is true—we will have to come back to this—that other things have been said about how we want to develop the criminal justice system.
The scheme overall is governed by the Conditional Cautioning: Code of Practice, which has a statutory basis in the Act. That would be the same if the conditional cautions scheme is extended; that is, the same requirement for the Conditional Cautioning: Code of Practice will result. That is a matter therefore to which we will have to come back. On the question of to which offences it will apply, the overriding limit will be whether the conditions which are available are appropriate to the form of offending. If offences are of such a degree of seriousness that it is not appropriate for them to be dealt with by compensation, a short attendance, reparation or rehabilitation, they certainly will not be dealt with in it. The noble Baroness, Lady Anelay, read from a list in the existing code of practice guidance issued by the DPP, which gives the constituency of offences that this could be used for. That obviously is not at all the same question as whether in a given case they should be used. There can be considerable levels of difference in the sort of offences and the offenders who commit them. She is right that one has to look at the offender.
In conclusion, first, we already accept that in certain circumstances penalties are imposed outside the courts. The police do it in relation to fixed penalty notices in a number of areas. Members of the Committee might agree with me that to have an additional safeguard that the prosecutor imposes is beneficial and avoids just one mind looking at a case. Secondly, the experience so far has been that victims have found the conditional cautioning scheme helpful because they have been involved in it, they have had a voice and it has been much speedier. I know of one case where £1,000 compensation was paid within a week—or something of that sort—to a victim. I am afraid that that certainly would not happen under the court system as it presently operates. I hope that the Committee will see the benefits of conditional cautioning and will agree that Clause 15 should stand part.
Before the noble and learned Lord sits down, I thank him for his earlier explanation. I accept that if the Crown Prosecution Service is seen as the driver of the system, it protects the police from being seen as junior magistrates, although maintaining that distinction will be very important. However, does the Minister share with me a sense that the term “administrative punishment”, which is now being widely used, does not sound quite right? It gives the impression that it is the Government who are giving administrative punishment. I wonder whether any punishment that takes place other than through the courts should be seen somehow as on behalf of the courts. It is an essential principle that the courts in a democracy exercise the right to judgment and punishment. Perhaps the expression “administrative punishment”, which rolls off the lips fairly easily, is rather unfortunate.
The noble Lord, Lord Hylton, is right. Of course, there is the possibility of recourse to a court, as there would be here. If you do not accept a fixed penalty notice put to you by the police, for whatever reason, you can go to court. If you do not like the conditional cautions being offered to you by a prosecutor, you can go to court. The court remains at the apex of this system and in overall control of it.
I certainly take on board what the right reverend Prelate said about the term “administrative punishment” and I will consider it. It is not a term that I use. People say to me that “conditional caution” is not exactly a catchy phrase either, so perhaps we need to think generally about them.
I am grateful to all noble Lords who took part in that debate, which goes to the core of the kind of punishment that should be meted out outside of a court. The whole debate has to go on the balance between two competing calls on the system. The right reverend Prelate the Bishop of Chester clearly enunciated the fact that victims need a publicly observed objective process in the criminal justice system. That is absolutely vital. On the other end of the scale, the noble Lord, Lord Hylton, was right to point out that we need a swift and fair system of restorative justice, which is where I agree wholeheartedly with the noble and learned Lord. We want a criminal justice system that can be responsive in a fair and effective way. We do not want hold-ups in the court system. But, of course, as magistrates say very clearly, they do not feel that they are causing the difficulties and that there are ways of dealing with the administration of justice which would make the system work more quickly. We agree with the Government that the existing system of conditional caution should be given a fair run.
Although the noble and learned Lord was very courteous in addressing most of my questions, there was one outstanding which I will not pursue today, although it may be that he is able to give the answer. It concerned the reoffending rate on existing conditional cautions. I would be perfectly happy if he would prefer to write.
I apologise for not dealing with that question. The information that I have is simply that the scheme has been going for an insufficient length of time to give a meaningful answer to that question. But if I can improve on that, I will write to the noble Baroness.
I am grateful to the noble and learned Lord. Although I very rarely disagree with the right reverend Prelate, I have to on this occasion on the issue of what these punishments are called. I understand why he does not like the term “administrative punishment”. I use it because I want to distinguish this new provision in the Bill from the rather glib phrase that we see in the press about the extension of summary justice. This is not summary justice, which can be done through the courts and always has been. That is why I seek a distinguishing description. I would be happy to find something else: if the right reverend Prelate can help me—
We are getting closer together again, which reassures me. I like to be on the right side occasionally, if not all the time. So we all need to look at a way of describing it. Whatever it is, it has to work for the victim and the offender, who, as the noble and learned Lord has said, has admitted his or her offence. I am particularly grateful to him for putting clearly on the record the position of the person who has admitted the offence with regard to how it may or may not constitute a matter that goes on to their record, particularly with reference to the Criminal Records Bureau check. That answer has not been given in another place.
Overall, we are trying to avoid delay. To that end I shall not delay the Committee any longer on this matter. Considerable concerns remain and the fact that the noble and learned Lord has seen satisfaction with this in Scotland and other countries does not necessarily mean that we would be willing to go down that route in this country. The Government are fond of saying that Scotland is different—“Devolution gives us a joyous difference”. Perhaps we should look for a joyous difference and improvement here too, but for now I shall certainly not continue to resist this clause standing part of the Bill.
Clause 15 agreed to.
Clause 16 [Arrest for failing to comply with conditional caution]:
Page 10, line 12, leave out “A person arrested under this section must” and insert “If a relevant prosecutor determines that a person arrested under this section has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, the person arrested may”
The noble Baroness said: Noble Lords will be pleased to learn that fairly shortly they will hear voices other than mine. In moving Amendment No. 97 I shall speak also to Amendments Nos. 100 and 102 tabled in my name, and refer briefly to Amendment No. 98 to which I have added my name in support. My amendments are probing in nature. Clause 16 gives police constables a power of arrest without warrant where an offender is suspected of having breached the conditions of a conditional caution without reasonable excuse. The Government argue that this will speed up the prosecution of the original offence.
The clause will insert new Section 24A into Part 3 of the Criminal Justice Act 2003, and I ask that Amendments Nos. 97 and 102 should be read together. They would clarify that the various options specified in Section 24A(2)(a) to (c) would be available only where a prosecutor has decided that a condition of the caution has been breached without reasonable excuse. It would make it possible for the person to be released on bail before it has been determined whether that person has breached the conditions of their caution without reasonable excuse. New Section 24A(2) requires that a person who has been arrested for a suspected breach of the conditions of their caution should be “charged with the offence” for which they were originally arrested, or released on bail but without charge, or released without charge and without bail, but with the possibility of the conditional caution being varied. I do not have a problem with the proposal that the Section 24 powers should be used where it has been established that there has been a breach of the conditions of caution. However, Section 24 would not limit the use of the powers in that way; it would enable them to be exercised purely by virtue of the fact that the person has been arrested on suspicion of breaching a caution. Is that the Government’s real intention?
Where a person accepts a conditional caution instead of being prosecuted for an offence, they of course effectively enter into a contract with the state on the basis, “If I, the offender, comply with these conditions, you, the state, will not prosecute me”. Surely it would not be right for the state then to breach that agreement by charging the person with the original offence unless it had first established that the person had indeed breached the conditions of the caution and thereby had broken their side of the agreement. Paragraph 176 of the Explanatory Notes acknowledges that this is not the intention:
“If the person has failed to comply without a reasonable excuse, he can then be charged with the original offence in respect of which the conditional caution was given”.
The same argument could logically apply in relation to the proposal to vary the conditions of a caution to change unilaterally the terms of the deal between the state and the offender without any reason. My amendment simply clarifies the position. In addition, I recognise that of course it may be necessary to release someone on bail while it is being decided whether they have breached the conditional caution. Amendment No. 102 would enable that to happen.
Amendment No. 100 would delete subsection (6) giving the police the power to keep the person in police detention while the investigation is under way about the suspected breach of the caution. The amendment has been tabled simply to probe how long the Government anticipate it would be reasonable for the police to keep a person in detention for this purpose. I realise, of course, that the noble and learned Lord is likely to give a full response to this point when replying to Amendment No. 99 tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris of Richmond. That amendment seeks to put a 12-hour limit on the length of time for which a person arrested on suspicion of breaching a caution could be held in custody.
I note that Hazel Blears stated on 23 March that the Government,
“envisage a person as being held for a relatively short period”.—(Official Report, Commons Standing Committee D, 23/3/06; col. 174.]
So we have to ask the age-old question: how short is short? I would be grateful if the noble and learned Lord could address the specific point raised by the Magistrates’ Association on this matter: what safeguards will be in place regarding the operation of that power by the police? Why would it be right for the police to have greater powers in relation to such cases than magistrates have in relation to breaches of court orders? I beg to move
I shall speak to Amendments Nos. 98 and 99 which have been tabled in my name and that of my noble friend Lord Dholakia. He is unable to be with us today, having gone to Scotland to be with my noble friend Lord Steel while he receives his honour. Clause 16(4) states that:
“Where a person is released under subsection (2)(b), the custody officer must inform him that he is being released to enable a decision to be made as to whether he should be charged with the offence in question”.
Our amendment would insert at the end:
“A person who is released following an arrest under this section shall not be re-arrested without warrant for the same suspected failure to comply with a condition attached to a conditional caution”.
I turn now to Amendment No. 99. As the noble Baroness, Lady Anelay of St Johns, has so rightly said, this amendment would put a 12-hour limit on the length of time for which a person arrested on the suspicion that he has breached a conditional caution could be held in custody. It would also prevent a person being re-arrested for the same suspected breach of a condition.
As well as giving the police powers to arrest someone suspected of breaching a conditional caution, the Bill would allow them to detain the person indefinitely until they felt able to decide whether to charge or release. It must be remembered that the only purpose of this detention is to ascertain whether a condition has been breached and thereafter to decide whether to charge the person with the original offence or to release them, whether or not on bail. Given the restricted purpose for the detention and the Government’s confidence that conditional cautions are to be used only for low-level offences, it would be entirely disproportionate to give the police an indefinite power of detention in such cases. The Magistrates’ Association has gone as far as to describe this as,
“a draconian power in relation to a matter that has not been before the judiciary”.
By contrast, strict time limits are rightly imposed on the powers of pre-charge detention where a person is suspected of having committed an offence. In such cases the suspect can be detained only for up to24 hours initially, with extensions taking total detention up to four days available by application to the courts. Within this time the police are required to gather sufficient evidence to decide whether to charge the person. That is a far harder task than deciding whether a condition has been breached. It would be indefensible to give the police the power to keep someone in custody for longer on suspicion of breach of a caution condition than on suspicion of a criminal offence. If the action which breached the caution was itself a crime, the person could be arrested for the crime and the police would not need to use the power under this clause.
In Committee in another place, the right honourable Hazel Blears explained:
“The provision is designed to enable a quick, on-the-spot inquiry to take place”.
Despite accepting that inquiries will usually be quick, she rejected the proposal to include a time limit on the face of the Bill, arguing that,
“In the vast majority of cases, an hour or a couple of hours will be sufficient, but I cannot say categorically that it will be so; it will depend on the circumstances of the case”.
The amendment acknowledges that some flexibility is required and that it would be unworkable to impose a time limit of one or two hours. However, given the simple question the police are required to answer during the period of detention, these Benches consider that 12 hours should be more than enough to deal with a non-typical case. Without such a time limit, there is a real risk that these powers will be abused and there would be no incentive for the police to ensure that inquiries into the suspected breach are conducted as quickly as possible.
In response to the call for a time limit to be imposed on the power of detention, again Hazel Blears explained that:
“It would be a ridiculous state of affairs if the police had to release someone automatically and then rearrest them”.—[Official Report, Commons Standing Committee D, 23/3/06; col. 174.]
We agree. After the time limit for detention has expired, the police should not be able to re-arrest a person for the same suspected breach of a condition to enable the clock to start afresh. This would completely undermine the purpose of imposing a time limit and it is for this reason that our amendment would prevent re-arrest for the same alleged breach.
This series of amendments relates to Clause 16. I do not think there is any underlying disagreement about the need for Clause 16, which provides a quicker and more flexible response to suspected breaches of a conditional caution by providing powers of arrest and detention, with all the usual safeguards under the Police and Criminal Evidence Act.
First, let me make it clear that it is for the prosecutor, not the police, to decide whether an offender has breached the conditional caution and, if so, whether to charge the offender with the original offence. That is already in the provisions of the Criminal Justice Act 2003. That is essential background because Clause 16, as drafted, provides that various options are available once an offender has been brought into custody for a suspected breach. These are: either to charge with the offence in question—that is to say, the original offence; or, secondly, to be released by the police on bail, without charge, where further investigations are needed to determine non-compliance; or, thirdly, to be released without charge and not on bail where the prosecutor determines that there has been no breach of the conditions and, therefore, that the conditional caution should continue to run its course.
Amendment No. 97, I believe, would have a negative impact for the offender—I recognise that that is not the reason the noble Baroness has brought it forward—because if the decision-making process is restricted to the prosecutor alone, the person could not be released, with or without bail, without the agreement of the prosecutor. That could mean that the person is detained longer than required while awaiting the availability of a prosecutor. So if someone is arrested at the weekend, in the evening or at a time when a prosecutor is not available, the police would not, for example, have the opportunity of exercising the power in subsection (2)(b) for the person to be,
“released without charge and on bail to enable the decision to be made as to whether he should be charged with the offence”.
I am sure that is not what the noble Baroness had in mind. It would be contrary to what we have in mind in subsection (7) that the case must be dealt with,
“as soon as practicable after the person arrested arrives at the police station”.
There would be an additional problem in involving the prosecutor because, under the PACE provisions, it is not for prosecutors to make decisions about bail; these are made by the custody sergeant. It would be difficult, disproportionate and have a number of implications now to put upon a prosecutor a responsibility for determining bail and conditions of bail, but only for conditional cautions and not for any other offences. So I cannot support Amendment No. 97.
Let me give an example. It might be absolutely plain when the person arrives at the police station that the conditions have been complied with. He may have evidence with him—a letter, perhaps—proving it. Under the noble Baroness’s amendment, the police still could not release that person until a prosecutor had been found to take that decision. I am sure that is not what she intends.
Amendment No. 98 seeks to prevent the police re-arresting someone for the same suspected breach of a conditional caution without application to the court for a warrant of arrest, and the noble Baroness, Lady Harris of Richmond, explained the reasoning behind that. The background to this, again, is that Clause 16 is there to give the police a new power to arrest someone for a suspected breach to enable quick and effective enforcement of conditional cautions. If one required an application to the court for an arrest warrant, that would undermine that purpose by adding an additional stage and, therefore, delaying the enforcement process.
As the noble Baroness eloquently explained, underlying this is a concern about the circumstances in which it would be appropriate to re-arrest. I can certainly imagine circumstances where it would be appropriate to re-arrest. For example, an offender may on the first occasion give a false explanation for the suspected breach which is accepted in good faith by the police officer, who then releases him. If it came to light subsequently that it was a false explanation, then it would be right, I would suggest, that the police should be able quickly to re-arrest him to get to the truth of the matter.
Amendment No. 100 seeks wholesale removal of the police power to arrest and detain an offender for suspected breach. I have explained why we think it is important that there should be a power for the police to be able to respond quickly. But we certainly do not want offenders to be kept unduly in police detention while the case is being dealt with, so let me touch on the points about delay made by both noble Baronesses. Clause 16(7) makes it clear that there is a particular duty on the police to act expeditiously; and there is an additional requirement under subsection (6) that any detention to allow further investigation is strictly necessary, a point to which the noble Baroness, Lady Harris, drew attention. The power of detention is to enable a decision to be taken on whether there has been a breach and, if so, whether to charge the offender with the original offence.
In practice, it may often be relatively straightforward to determine whether there has been a breach and, if there has been, whether the reason given by the offender for non-compliance is a reasonable excuse. But there may be occasions when it is necessary to detain for a short time in order to resolve the matter quickly. A telephone call might establish that the offender has committed the breach, in which case it would make no sense for the police to release the offender while seeking to confirm whether there has been a breach and, if there has been, then having to go to arrest him and bring him back to the police station to charge him with the original offence.
What, therefore, about the time? AmendmentNo. 99 proposes a time limit of 12 hours. I certainly do not want to see a person who has committed a low level offence—which is what we are talking about in this Bill—and is suspected of breaching a conditional caution being unduly or disproportionately detained by the police. There are two very important measures in the Bill which would prevent that. First, subsection (7), to which I have already drawn attention, will insert the new provision, specifically, that subsection (2) must be complied with as soon as practicable after the person arrested arrives at the police station. So there is an important and clear duty on the police to deal with the matter as soon as they practicably can.
Secondly, Clause 16 makes it clear that the detention time restrictions in the Police and Criminal Evidence Act apply to the powers of arrest for a suspected breach. Both noble Baronesses referred to existing time limits. Those time limits are not removed for this power of detention. There is therefore no need to insert an additional time limit; indeed, it is highly unlikely that the time limits under PACE would be reached. There is a worry, however, that if one imposes a time limit, even of 12 hours, there would be no room to manoeuvre to take account of specific circumstances.
The offender might turn up in a drunken condition, which happens at quite a lot of police stations. It may be necessary for him to sober up before the questions can be put and the matter cleared up. It happens, too, from time to time that a fight breaks out in the custody suite which diverts police resources. There is a risk, therefore, that if one imposes an arbitrary time limit, it may not be possible to deal with those circumstances, although, I repeat, everything has to be subject to the requirement in subsection (7) that the matter must be dealt with as soon as practicable after the person arrives.
Amendment No. 102 seeks to make it clear that if after arrest for a suspected non-compliance with a conditional caution there is a need to conduct further investigation to determine whether there has been a breach, the offender may be released on bail rather than detained in custody while those investigations take place. It is absolutely our intention that that should be possible and the Bill already makes it sufficiently clear. One of the options in new Section 24A(2) is that someone can be released on bail without charge pending investigations to decide whether he should be charged for the original offence.
Fundamentally, we hope that these investigations will not take long. We do not want to see conditional-caution offenders spending undue periods of time in police stations, but the power to arrest and detain is necessary for the reasons that I have given. I hope that, on consideration, the Committee will be satisfied that there are sufficient safeguards in the Bill to ensure that the potential for abuse to which the noble Baroness, Lady Harris, referred does not exist.
I am grateful to the noble and learned Lord. I agree with him entirely that a swift response to any breach of conditional cautions is important. I strongly support anything that achieves that. Before there was such a thing as conditional cautions, great concern was felt about the difficulty in bringing breaches before a magistrates’ court in a timely manner. It is right that one should try to proceed as quickly as possible, otherwise one loses the whole benefit of the conditional cautioning system, which we fundamentally support.
The noble and learned Lord was obviously right to point out, as Ministers do, that Amendment No. 97 is technically defective and would have exactly the opposite effect to that which I want, although I made it clear that it was a probing amendment. The noble and learned Lord was right, but he knows why I tabled it.
I am grateful to the noble and learned Lord for explaining why provisions are in the Bill to prevent re-arrest for capricious reasons. I thought that Amendment No. 98 was well founded, but his assurances and explanations have satisfied me.
Finally, I certainly agree with the noble and learned Lord’s response on time limits for holding persons in custody for the suspected breach of conditional cautions. I appreciate that there are provisions in PACE that one would hope would ensure that the time one could be kept in custody would be as short as reasonable within the individual circumstances. The noble and learned Lord gave the common example of somebody being drunk on arrest or of there being fights in the police station and of the police’s resources being rather stretched. I can certainly think of other circumstances. It might well be that the person is a vulnerable adult; it could well be that the person involved needed an interpreter. I could happily be an advocate against my own position in that respect.
I have put these matters on the record in some detail at this stage because I do not foresee any need to return to Clause 16 matters on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 98 to 100 not moved.]
[Amendment No. 101 had been withdrawn from the Marshalled List.]
[Amendment No. 102 not moved.]
Clause 16 agreed to.
Clause 17 [Local authority scrutiny of crime and disorder matters]:
Page 13, line 9, at end insert-
“( ) Every crime and disorder committee shall include at least one member nominated by the police authority responsible for maintaining the police force in the area of the local authority, who shall have the same entitlement to vote as any other member of that committee.”
The noble Baroness said: In moving the amendment, I shall speak also to AmendmentsNos. 114, 119, 120 and 123 to 126, all of which stand in my name. The amendments fall into two areas; first, those which would ensure that police authorities are represented on the crime and disorder committees proposed in Clause 17—Amendments Nos. 103 and 114 relate to that; secondly, those which would allow flexibility to the Secretary of State in being able to add new partners to the list of responsible authorities under the Crime and Disorder Act, but not to remove existing responsible authorities though secondary legislation. Amendments Nos. 119, 120 and 123 to 126 relate to that.
The Bill as currently drafted would enable crime and disorder committees of local authorities to co-opt members from external bodies in accordance with regulations issued by the Secretary of State. I am sure that the Minister will reassure me that the Government have every intention of including police authorities among this list of co-optees. I do not wish to appear churlish when I say that this is a matter of such significance for the local accountability of the police and the maintenance of the tripartite system that it should be enshrined within primary legislation.
We have already had much debate when discussing earlier clauses of the Bill on the importance of the tripartite system and the perception that there are elements of the Bill which would erode both this and the political independence of the police. As I have already made clear, I share some, though by no means all, of these concerns. However, it is important to make it crystal clear in the Bill that the police are accountable to police authorities by mandating that police authorities should be represented on the crime and disorder committees. Otherwise, it is but a small step between the committees, which are local authority bodies, holding the CDRP as a whole to account, which I know is the intention of the Bill, and their attempting to hold the component partners of the CDRP to account, particularly basic command unit commanders, which I know is not the intention of the Bill. If this were to happen, it could put conflicting demands on already hard pressed local police, undermine the role of the police authority in setting local policing priorities, interfere with the managerial accountability between BCU commanders and chief officers, and leave local authorities open to charges, whether real or imagined, of political interference with the police. That is what I am seeking to avoid.
I turn to the second group of amendments. The Bill currently proposes that the Secretary of State will be able to change by order the responsible authorities defined in the Crime and Disorder Act. These are the authorities on which particular responsibilities in public accountability are placed to ensure that local strategies are in place to deal with crime and disorder issues.
I can well understand the desire of the Government to have some flexibility in designating responsible authorities. I well remember that police authorities were a belated addition to this list, which required primary legislation in the form of the Police Reform Act 2002. Adding new responsible authorities is one thing, but taking them away, given the local public accountability that goes with this role, is another. Public accountability is vital and is the kind of key principle that should be in primary legislation. Does my noble friend envisage circumstances in which the Secretary of State might wish to remove a partner from the list of responsible authorities?
My amendments would allow the Secretary of State the flexibility to add new partners or successor bodies to the list of responsible authorities but would ensure that removing partners from it would require primary legislation. I am aware that consequential amendments may be required by the two broad amendments that I have put forward in this group. I beg to move.
I shall speak to Amendments Nos. 117, 118 and 122 in this group, which are in my name. In doing so, I intend to be as helpful as possible to the Government. What I am trying to do in these amendments is, first, to put into a form that works what I understand to be their intention and, secondly, to clear up a mess that I believe is left from some ill thought-out provisions in the 2002 Act. The purpose of these amendments is to create a body in each local area that would be visible, transparent and accountable to the public for local community safety strategies. I believe that that is the Government’s intention as a result of the review of the Crime and Disorder Act that they have been conducting. This part of the Bill is intended to put that review into effect.
The Government’s intention is to create such a body by splitting existing local crime and disorder reduction partnerships into strategic and delivery levels, but the Bill as currently drafted does not express that very clearly. It deals with the split by inserting a provision in Schedule 7 to allow different functions to be conferred on different responsible authorities; but as the detail is to be contained in secondary guidance, it does not clearly explain what is intended and may lead to confusion. I am therefore trying to assist my noble friend by putting forward an amendment which I hope achieves greater clarity.
The amendment would make it plain that the responsible authorities in the Crime and Disorder Act are restricted to the local council and the local police commander as these are the individuals or agencies that are by and large responsible for delivery. In effect, that reverts to the previous provisions of the 1998 Act. At the same time, it would create a group of partners that I have called the “strategic safety partnership”, for want of a better name. The name is not of course sacrosanct, and I am happy to call it anything else that noble Lords might think appropriate. That group of partners would include members—not officers—of the local council or councils for the area, the police authority, the fire authority and a non-executive director of the primary care trust in England or the health authority in Wales. So in essence, rather than having responsible authorities—the primary care trusts, the fire authority, Uncle Tom Cobbleigh and all—as we have at the moment, which diffuses and makes less clear who is directly responsible for taking action, the amendment clarifies that arrangement and ensures that those other bodies are very much seen as strategic partners who are involved in the process.
This strategic safety partnership would become the strategic level of the CDRP, responsible for setting local community safety strategies and plans and monitoring the performance of the elements of the CDRP which are responsible for delivery. That would be primarily the local council and local police commander. I have been specific that the representatives of the partners concerned should be members or non-executive directors, because the strategic safety partnership will be accountable to the public for local community safety issues. I do not believe that officers of the constituent bodies can be held accountable in the same way as their first duty is to their employer, not to the public. This is an important principle which it is intended will also help to improve the responsiveness of CDRPs.
No doubt my noble friend will reassure me that this vision of public accountability is exactly what the Government intend to address in the secondary regulations for which Schedule 7 provides. However, I believe that this important principle should be made plain on the face of the Bill. My own view, now that I have read some of the Government’s proposals, is that there is a lack of clarity as to how that is to work, who is to be responsible and who is to be part of the strategic direction.
I have personally believed for a long time that “responsible authorities” should be restricted to local councils and local police commanders, although I know that some of my noble colleagues may disagree with me on that. It was groundbreaking enough in the 1998 Act to place a joint responsibility on two statutory authorities and expect them to work together—especially when, in some instances, they did not have a great deal of experience of doing so. To try to place a joint responsibility on four, five or six statutory authorities is not workable. If you make it clear that the local council chief executive and police commanders are the responsible officials for delivering the crime and disorder reduction partnership and that the strategy is agreed by the broader group of partners, that is the sensible way forward.
Many of the functions currently conferred on responsible authorities are really appropriate only to bodies actually involved in delivering community safety, while the responsibility for ensuring that community safety strategies are adequately reflected in the plans of the partner organisations is clearly more appropriately a responsibility of the partners to the strategic safety partnership. I accept that, as a result, there may be many consequential amendments to be made to the Crime and Disorder Act, but I am sure that Home Office officials will be delighted to help my noble friend in finding them. But clarity about the split in functions is necessary and has to be achieved and the importance of public accountability for community safety should be made clear. I believe that it is worth getting this right from the start by amending the Bill in this way.
I support all these amendments and will speak in particular to Amendment No. 103, Amendment No. 114 and Amendment No. 121.
It is absolutely right that every crime and disorder committee shall include at least one member nominated by the police authority responsible in that area for maintaining the police force in the area of the local authority. I very much support Amendment No. 103.
On Amendment No. 114, police authorities must have a right to sit on the committees scrutinising crime and disorder issues as they are the bodies that hold the police to account on behalf of local communities, as the noble Baroness, Lady Henig, said. The Government have said that that will be prescribed in secondary legislation. We believe that it needs to be guaranteed in primary legislation because of the importance of the function and the possibility that the committees could be used by local authorities to hold the police, particularly BCU commanders, rather than the CDRP as a whole, to account. That could put conflicting demands on local police, undermine the role of the police authority in setting local priorities and interfere with the managerial accountability between BCU commanders and chief officers.
Amendment No. 121 would remove the ability of the Secretary of State to confer by regulations particular functions on particular responsible authorities in relation to the formulation and implementation of CDRP strategies. The whole point of the CDRP is that it has a partnership approach that engages all the responsible authorities in a joint exercise to address community safety issues. The noble Lord, Lord Harris, put that clearly in context. To confer particular functions on one or two of the partners would go against the partnership principle. Not only would it open up the possibility of a hierarchy of more or less important responsible authorities, which would mitigate against the concept of partnership, but it risks detracting from the original purpose for which these partnerships were brought together—better to join up community safety issues.
In addition, we have concerns that if the paragraph gives local authorities a primary role, it will be used to try to hold the police to account rather than the partnership as a whole. The police are accountable to police authorities and we would not wish to see that eroded or have conflicting or inappropriate priorities foisted by one partner on other partners because they have not been given a particular responsibility for formulating strategy, although they may have a responsibility for implementing it.
Provisions that allow the Secretary of State to confer functions on a committee, or on a particular member or officer of the responsible authorities, are set out later in the same clause. This should be sufficient to ensure that the CDRP-plus arrangements can be put in place, allowing key strategic decisions to be made by lead members of the responsible authorities to ensure better accountability to the public.
The aim behind these various amendments, as noble Lords have pointed out, is predominantly to raise concerns from the Association of Police Authorities regarding how the role of local authority scrutiny committees with responsibility to look at the crime and disorder reduction partnerships will interface with other responsible authorities, such as the police and the BCUs. The comments on this from the noble Lord, Lord Harris of Haringey, are very pertinent.
The amendments also address the age-old argument about placing detail in the Bill rather than in secondary legislation, to which the noble Baroness, Lady Harris, has already referred, as has the noble Lord, Lord Harris of Haringey, in another context in this amendment. That is an argument we have made throughout Part 1.
I do not want to reiterate all the points so carefully articulated by your Lordships, but I would like to speak in support of Amendment No. 103, to which my noble friend Lady Anelay has added her name. I agree with the noble Baroness, Lady Harris of Richmond: I do not see why the Government cannot express in the Bill that members of other representative authorities should be included in the local authority scrutiny committees, especially as the Home Office has argued that this is to be the case in practice. Including such representatives can only aid a joined-up approach to tackling local problems and help share information and understanding. I will be most interested in the Minister’s view of how this mechanism will work with the current lines of accountability.
I understand the principle behind the Government’s proposal. It is a call for action. Scrutiny committees have the potential to be a very valuable forum. One can argue that on the one hand the Government are merging bodies involved in crime and disorder to try and reduce the pressure on them, yet on the other they are setting up new committees involved in the exact same area, albeit in a different way. There are clearly some outstanding concerns that need to be addressed before we can be confident that the workings of different organisational relationships have been thoroughly thought through.
I am grateful to the contributors to this debate for the constructive way they have engaged with the issues and the focus that has been placed on the accountability and management of important partnerships involved in crime and disorder.
The review of the partnership provisions of the Crime and Disorder Act 1998 that has been undertaken during the past year or so stresses the importance of including members from the police authority on the overview and scrutiny committee when it is looking at crime and disorder matters and the work of the crime and disorder reduction partnership, to ensure that local policing priorities are properly reflected at the strategic level.
The Secretary of State continues to offer assurances that we still believe it appropriate to include the police authority on the overview and scrutiny committee functions, and the regulation-making power in Clause 18 allows for that flexibility. We are consulting practitioners around the country on exactly how best to exercise that power, and most importantly that will include police authority members. However, I understand the sensitivity of the issue against the background of current discussions about the size and composition of police authorities.
It is also important to highlight that the composition of such committees should continue to reflect the current and future structure of community safety delivery. The power in the Bill will allow that to happen. The power is subject to the affirmative resolution process, and we can fairly argue that Parliament will have an opportunity to both monitor and scrutinise its use and effectiveness.
Amendment No. 114 is a consequential amendment to ensure that, if police authorities are added to the membership of the crime and disorder committee by Amendment No. 103, the same applies to those overview and scrutiny committees set up in areas not operating under executive arrangements. However, as previously stated, we have taken the power to specify who should be co-opted to sit on those committees, and for that reason we do not require it to be set out in primary legislation. It is worth underlining the point by saying we will also have a power to provide that they may be given voting rights.
Amendment No. 117 would alter the structure of crime and disorder reduction partnerships by reducing the number of responsible authorities from five to two. This amendment would make the police and the local authority responsible and accountable for the development and delivery of all aspects of the partnership strategy. In our view this narrowing of membership would come at a time when, as a consequence of good partnership working and recent strategy changes, the CDRP remit has expanded to cover crime and disorder, substance misuse, anti-social behaviour and behaviour adversely affecting the environment. I would have thought, given their experience, that my noble friends Lord Harris and Lady Henig, and the noble Baroness, Lady Harris of Richmond, understanding as they do the value of good partnership working, would see the benefit of having this broader partnership membership.
We acknowledge the important role that the police and the local authority undertake. Perhaps one might describe them as leading players in taking forward the CDRP’s work. However, we think the remaining responsible authorities continue to play an equally critical role in the work of partnerships. This amendment would be a step backwards in terms of joined-up local delivery, and we do not think it would necessarily assist in tackling important community safety issues at the local level.
CDRPs are founded on the principle that tackling crime and disorder is not just a job for the police. I am sure that that is a view all your Lordships share. To tackle the root causes of crime, a wider range of agencies must be involved. The partnership approach, as taken forward by CDRPs at the local level, has achieved sustained reductions in crime across the country, and we think this amendment might undermine or threaten some of that good work.
I am not sure I fully understand the thrust of my noble friend’s argument. In many local areas there is a sense of partnership fatigue, with bodies that are required to sit on local partnerships because of legislation passed by your Lordships and another place at various times, or because of circulars that say you cannot spend money on particular things without a partnership committee.
Trying to draw a distinction between those that have the primary responsibility for service delivery in this area—it will remain the local authority and the police service—and those other authorities that have a peripheral, though important, role is surely essential. The amendment gives clarity to what people are there for, which is why it is expressed in those terms. That does not stop the partnership, in terms of the people involved primarily in drug rehabilitation, being present for discussions specifically associated with that, but it clarifies who is part of the strategic discussion and of the service delivery discussion. As I understood it, that was the objective of the Home Office’s policy.
I am also conscious that there is a lot of discussion about the nature of local partnerships, and the relationship between all these things and the local strategic partnership. Again, the clarity of thinking across government departments about this is not as good as it might be. At least, if it is clear to someone, it is not clear to me. I would be grateful if my noble friend could give us a little more on why he thinks the proposals in the amendments I have put forward will make things worse rather than better. Surely clarity will have been given to the roles involved.
I see my noble friend’s intervention as helpful. I know we share the same objective in the end: to ensure that partnerships work well. I understand the point about partnership fatigue, not least because, like him, I have felt somewhat overburdened by the commitment to different partnerships in the past. Partnerships are not just important but highly significant. The danger of going for the two-partner approach—which is effectively what the amendment would achieve—is that those others who are important and, I argue, integral to valuable partnership working at a local level will feel downgraded and not as valued as they formerly were. I have acknowledged that one would expect local authorities with their professionalism, and police authorities with their professionalism and expertise in dealing with strategic matters, to play a leading role. There is no suggestion that that would be in any way downgraded in partnership working. There is added value in bringing others in and making them feel not the most important but certainly equal partners, in terms of their commitment, and making the work of countering crime and disorder activity more widely valued than just within the local authority and policing family.
Amendment No. 118 looks at the process of separating out the strategic responsibilities of the crime and disorder reduction partnerships from those relating to operational delivery. We see the group composition recommendation as an endorsement of the recommendation outlined in the crime and disorder review, which also proposes the need to separate the operational and strategic obligations of the partnership to facilitate delivery, so we recognise the terms and parameters of this debate. We are fulfilling our commitment to consult CDRP responsible authorities and other stakeholders on how such a proposed separation of strategic and operational functions could be established and implemented. It would be counterproductive to enforce a definitive structure in primary legislation until that consultation process has been completed. There is still something to be learned from that. For that reason we propose taking a power in new Section 6 of the Crime and Disorder Act to use secondary legislation to bring about change in the most effective way. We want to listen to the voices that need to be heard throughout the consultation and learn from their important messages.
Amendments Nos. 119 to 126 are clearly very important. The Bill already incorporates provisions that will provide for the inclusion, removal and review through secondary legislation of those persons or bodies listed as the responsible authorities for the CDRP, though subject to the duty to consider crime and disorder in their work, and those deemed relevant authorities for the purposes of information-sharing under Section 115 of the Crime and Disorder Act.
Amendments Nos. 119, 123 and 125 add no new support to those provisions and would duplicate requirements already outlined in the Bill. Amendments Nos. 120, 124 and 126 propose to remove the clause that would allow the Secretary of State to alter or remove those persons or bodies listed under the categories mentioned previously. The proposal to take the power to alter the list of authorities under these categories arose from the findings of the CDA review, and reflects the opinion of a great number of stakeholders who saw the need for the Government to be able to alter those lists without recourse to primary legislation. We in turn are keen to reduce bureaucracy. That is why we want to take a power to alter these lists by means of secondary rather than primary legislation. There may be occasions when this is needed in the future and secondary legislation represents a much simpler and faster way of achieving the same result. It will also allow us to react to the rapidly changing nature of the wider partnership landscape. The power is subject to the affirmative resolution procedure and the Committee will have an opportunity to monitor and scrutinise its use.
I turn to Amendment No. 121. It was highlighted through the CDA review that not all partners play an active role in the CDRP and more specifically in the development and implementation of the crime and disorder strategy. New Section 6(3)(c) in Schedule 7 was drafted to ensure that all responsible authority members of the partnership are encouraged to play an equal role in crime and disorder partnership work, and not to give any one partner primacy. In addition, this clause is key to delivering the strategic operational split of the crime and disorder reduction partnerships’ work as set out in the Crime and Disorder Act review.
I am grateful to my noble friend for giving way yet again. He has just talked about equal partners. Will he run past me again why the fire authority is an equal partner of the police in local crime and disorder? The fire authority has an important and valuable role in dealing with arson and offering fire safety advice and so on, but sometimes its involvement in matters other than flippantly offering to turn hoses on people who are causing disorder is fairly difficult to follow. What I am trying to get at—this comes back to my noble friend’s masterful dismissal of the amendments that I spoke to a moment ago—is that you cannot really claim that these partners are equal. They have a different level of involvement in these issues. Somehow we need to recognise that without pretending that they will all have a legitimate equal commitment in these areas.
I understand the point that the noble Lord makes. He and I are equally Members of your Lordships’ House but I am sure that he makes a greater contribution than I do. I see the membership in that light. I am grateful to him for reminding me of the importance of the matter. We are consulting on the detail behind the implementation of the policy and will aim to use this power to reflect the best way forward as set out by stakeholders.
Amendment No. 122 redefines what is meant by implementation and excludes the process of the CDRP monitoring and reviewing its strategy. The Crime and Disorder Act review 2006 highlighted the good practice being undertaken around the country where CDRPs were reviewing their strategies annually to reflect changing trends and circumstances. As a consequence the review findings concluded that there was substantial benefit in the review process, as it assisted CDRPs to continue to reflect on their achievements and establish new objectives to continue to support the reduction of crime and anti-social behaviour in their respective areas. We are aware of the burden that this might cause and the need to focus on delivery, so are consulting stakeholders over the summer on a range of issues, including how best to implement this finding through the Bill. As a result of the review, partnerships will also be required to undertake strategic intelligence assessments. It is vitally important that a provision exists that requires CDRPs to review and monitor their strategies to reflect any changes in local crime and disorder patterns and issues that these assessments might raise. In addition, the process of regularly reviewing the strategies is key to supporting CDRPs in identifying whether they have met statutory requirements, whether local objectives effectively meet local needs, and whether they continue to prioritise current and future resources according to the issues faced locally.
I am conscious that I have taken some time in replying but the value of the amendments is such that they require and merit very careful consideration. I appreciated the constructive comments made by Members of the Committee on the different amendments in this short debate.
My noble friend has gone, as ever, some way to meet my concerns without fully meeting some of the fundamental objectives which lie behind my amendment, particularly the significance of local accountability of policing and the importance of underlining that, as policing is not like any other service. My earlier amendments were designed to underline that, as it is so important. However, in view of the time, I do not want to labour this any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.