moved Amendment No. 104:

I support the amendments of the noble Baroness, Lady Henig; in particular, Amendment No. 111. I shall speak to Amendment No. 113 in my name and that of my noble friend Lord Dholakia.

The noble Baroness’s amendments are, as she has said, designed to inhibit the misuse or abuse of the community call to action in a way that would be detrimental to relationships between responsible authorities and communities, or different sections of communities. The Bill could allow the call to action to be used in an extremist, overtly political or other unintended way. It could also be used to try to hold police commanders directly to account, bypassing the police authority, the proper body to which the police are accountable.

The amendments ensure that the CDRP must be involved from an early stage if there is a perceived problem, and given an opportunity to rectify the situation before it can be referred to the crime and disorder scrutiny committee. This will help to avoid the overuse of scrutiny committees and consequent red tape, resulting in the early resolution of simpler problems and reserving the use of scrutiny committees for only the more serious, intractable problems.

Amendment No. 113 would remove the obligation on a body or individual about whom recommendations are made under a report of the crime and disorder committee to,

“have regard to the … recommendations in exercising their functions”.

The previous paragraph already obliges them to respond to the committee, and outline what action they will take. Paragraph (c) therefore seems superfluous.

I speak to the amendments in this group in the name of my noble friend Lady Anelay and myself. They cover a range of issues about the clause and the community call to action. As such, I hope that the Committee will have patience if I run through them.

Amendment No. 104, in the name of the noble Baroness, Lady Henig, was tabled as an alternative way of raising the issues I had highlighted in the probing amendment, Amendment No. 106. That amendment would insert a new subsection to ensure that when a councillor is considering a matter brought to him as a community call for action, he must, where reasonably practical, make inquiries as to the person or child’s mental health and learning difficulties.

It is by no means a perfect amendment, and I question whether a councillor should have access to such information, but we were raising the issue of inappropriately applied ASBOs. Will the Minister confirm whether the Home Office guidance on appropriate procedures to be followed includes any consideration of the rights and needs of disabled people? I am sure that he is aware of research compiled by Napo, showing strong evidence of children and young people with neurological disorders being inappropriately issued with ASBOs. I cite the following examples.

First, a 15 year-old boy with Asperger’s syndrome and no criminal convictions was given an ASBO with the condition that he was not to look over and stare into his neighbour’s garden. The neighbours had reported the boy to the police for persistently looking into their garden. The court was aware of his circumstances, but still issued the ASBO. Secondly, a 15 year-old boy with Tourette’s syndrome was given an ASBO with the condition that he did not swear in public. Thirdly, a boy who had been diagnosed with attention deficit hyperactivity disorder and his mother were evicted from their home and served with an ASBO because of the son’s “bad behaviour”.

This is a serious concern, not only in terms of finding the correct support for the underlying reasons for certain behaviour, but also because it shows a lack of understanding of specific medical problems in the general community, which perhaps also needs to be addressed. It adds to the concern expressed by children’s societies, in particular, that the call to action could, without sufficient safeguards, militate against the safety and welfare of children. As an aside, will local authorities be asked to include the voice of the child in designing these services, as the Childcare Bill has recently been amended to require?

Amendment No. 105 removes the exclusion of county councils from the definition of local authority in Clause 17 in order to probe the reason for their exclusion. Amendment No. 108 plays a dual role. The first is to question the drafting of the Bill. Would it not make sense to continue to refer to the member of the local authority as “the councillor” as in subsection (3)? Secondly, it asks for clarification about how the clause would work if the local government used a Cabinet-based system. The County Councils Network has expressed serious concerns regarding the exclusion of county councils from the definition of local authority in Clause 17 and thus from the community call for action. The community call for action aims to promote and improve local accountability, and the CCN argues that this exclusion compromises a county councillor’s democratic accountability to his local community and his existing relationships with local people. By limiting the function to district council members, but labelling those members as “ward members”, the Bill fails to recognise that county councillors also play a local representative role. The Minister will be well aware of that nuance.

One could suggest that the omission of county councillors may conflict with proposals for a strategic-level role for counties in terms of CDRPs, LAAs and LSPs. The Crime and Disorder Act review proposed a strategic level CDRP to function at county council level. That has not been translated into the Bill. Surely, enabling county members to respond to a call for action would support the scrutiny arrangements and provide a read-across to larger police authorities and probation services. I hope the Minister can explain to the Committee why this decision has been taken following the CDA review and what consideration the Government have given to the County Councils Network’s concerns, as well as answering the two questions that we posed when speaking to Amendment No. 108.

I now turn to Amendments Nos. 107 and 110 and to the consequential amendment, AmendmentNo. 112. Amendments Nos. 107 and 110 insert new subsections referring to Clause 17(3) and (5) to place a duty on the local authority member acting on a call for action to inform the person or, in the case of a child, his parents, against whom the complaint has been made and clearly to set out the procedures by which to respond to the allegations. Not only could this flag up mental or learning disabilities, which we discussed earlier, but it also supports a person’s rights to a fair hearing at local level. We must remember that there is a presumption that a person is innocent until he is proven guilty, although that is slowly being undermined by the Bill.

I do not claim that the drafting of these amendments is perfect, or even that this is the best way to address this issue. These are probing amendments. However, there are concerns that this clause could lead to complaints about young people being brought forward that involve allegations of misbehaviour based on a single incident or a rumour or that may be malicious. I hope the Minister can address the concerns that we have raised.

All the amendments in this group have their merits. The drafting of the whole clause could be greatly improved, and I hope the Government will attend to that. Subsections (3) to (11) are far too prescriptive and seem to be trying to write standing orders for local authorities in primary legislation, which is hardly desirable. I therefore favour the omission of subsections (3) to (11) of Clause 17.

I thank all noble Lords who have taken part in this short debate for the thoughtful way in which they have approached the issues that have been raised. That is extraordinarily helpful because we are trying to put forward a proposition in engineering the community call for action. The community call for action is designed to deal with difficult situations where members of local communities feel that they have been overlooked, that their local concerns and issues with matters such as low-level disorder are not high up the list of priorities of the local police service, and that of the local authority, and there is a genuine call from local community members to try to change that situation.

I shall work through the amendments as best I can and then conclude by summarising where we are. My noble friend Lady Henig explained the amendments tabled in her name, which require that community safety partners involved in a community call for action are consulted at each stage of the process. I find that hard to disagree with. I can reassure her that consultation with the relevant partners is at the core of how we see the community call for action operating. Ward councillors, local authority executives and overview and scrutiny committees will be required to engage with the relevant authorities at each stage of the process. We will provide for that in the guidance on the detail of the operation of the community call for action. I hope that reassurance will satisfy her.

As the noble Lord, Lord Hylton, said, there is always difficulty about how prescriptive one should be in legislation. We are trying not to make the legislation overly rigid and to provide flexibility. We can best do that by detailing in guidance the way in which we see the community call for action working through consultation.

Amendment No. 113 would amend the community call for action so that community safety partners would merely be required to respond to the reports and recommendations of overview and scrutiny committees and would not be required to have regard to their reports and recommendations in exercising their functions. It is not the case that having regard to recommendations will require community safety partners to give effect to them, it merely means that they must consider them when exercising their functions.

I am sure that noble Lords would agree that where the local community has raised concerns which have been investigated by the ward councillor and the scrutiny committee in collaboration with the community safety partners, it is only right that the partners should at least have regard to the report and recommendations of the committee. If there are well founded reasons for not acting on a recommendation—for example, because it would divert resources from another neighbourhood—the relevant responsible authority would be able to set aside the recommendation, but it would need to explain its reasons in front of the overview and scrutiny committee. I trust that the noble Baroness, Lady Harris, agrees that in those circumstances it would be appropriate to retain the duty to have regard to scrutiny committee recommendations.

The remaining amendments, tabled by the noble Baroness, Lady Anelay, relate to the operation of the community call for action in relation to individuals. Before I get into the detail of the amendments, it may assist the Committee if I explain how we envisage the community call for action working in practice. Let me make one thing clear: we regard the community call for action as a backstop, a final measure. If neighbourhood policing is working as it should and if crime and disorder reduction partnerships are operating as they should, they will be responsive to the needs of local communities. They will be addressing, in their day-to-day activities, the street crime, burglaries, drug dealing, alcohol-fuelled disorder or criminal damage that are the prevalent community safety concerns of particular neighbourhoods.

Where appropriate, the police will be targeting known local prolific offenders, and the local authority will be targeting problem families with the tools at their disposal, including parenting orders and contracts and anti-social behaviour orders. If there is a genuinely responsive and intelligence-led approach to tackling crime and anti-social behaviour, local communities, I am sure, will have confidence that the issues of concern to them are being properly dealt with. There will, therefore, be no need to resort to the community call for action.

As ever, my noble friend has gone some way to reassure me. I have listened very carefully to everything that has been said. I fully agree that guidance is just that—guidance. We should not be too prescriptive. I share that view. The problem is, as we all know, that local councils and CDRPs differ in quality. My guess is that the good ones will, indeed, follow the guidance; my worry is that the fair or possibly weak councils will be those where guidance may not be followed. That is precisely where the problems will arise, and why I wanted to have a little more prescription to avoid what will otherwise be difficulties in certain areas.

I would like a bit of consistency here. In debates on earlier parts of the Bill when I was arguing for flexibility, my noble friend assured me that the Government needed reserved powers. While most police authorities would of course be responsible, he said, the Government needed reserved powers because there would be one or two that might be difficult. If that is the case for police authorities, is it not also the case for weak councils? We should be flexible throughout the Bill, and that includes a whole number of areas that we have already had discussions on, such as issues with reserved powers and police authorities. If my noble friend is offering to be flexible there, I would feel more able to be flexible here. On the other hand, if we are going to be prescriptive because police authorities will cause problems, I submit that that is the case with councils and therefore we need to be consistent and be prescriptive for them as well.

In that spirit I draw some comfort from what my noble friend said but I feel that there are issues which we may well have to return to at a later stage, both here and also—I did not have time to say this earlier when we were discussing them—on CDRPs. But, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 105 to 113 not moved.]

Clause 17 agreed to.

Schedule 6 [Interpretation and modification]:

[Amendment No. 114 not moved.]

Schedule 6 agreed to.

Clauses 18 to 20 agreed to.

moved Amendment No. 115:

I support the amendment, to which I have added my name. I am also grateful to the Guide Dogs for the Blind Association for its briefing on this matter. The noble Baroness, Lady Harris of Richmond, refers to debates that we had in 2003 discussing the Criminal Justice Act. I tabled a similar amendment then, but I agree that it was not as effective as this one, because mine addressed only the issue of disability. It did not consider the broader groups categorised in the noble Baroness’s amendment and I prefer hers. It is right that we should take that broader application forward.

The difficulty is that none of us wants to impose greater bureaucracy on those who are trying to prevent, police and prosecute crime. It is proper to ensure that there is a collection of statistics on reported crime so that there is not only greater public awareness of what constitutes a crime but that people have greater confidence that if they report crimes, they will be taken seriously. The amendment is intended to ensure that the victims of hate crimes have the confidence to report it—which currently they may not. It is possible that it is under-reported. We are not trying to encourage people who are the victims of what they think may be a crime that does not fall within this category to go ahead and report it. It is an attempt to balance bureaucracy with the effective reporting of crime.

I note that before Mr Charles Clarke went the way of a few Cabinet Ministers recently, he said that he accepted that the way in which the Home Office collects statistics may not be sufficiently robust—he was talking about the broad range of crime statistics—and that there was a lack of public and police confidence in them. He said that there would be a Home Office review of the collection of statistics. When he comes to respond, can the Minister say whether the Government are still minded to carry forward that review and, if so, whether the points raised by the noble Baroness, Lady Harris, in her amendment will form part of that broader review?

Very briefly, having also been enthused by the briefing of the Guide Dogs for the Blind Association, I give a warm welcome from the sidelines—because I have not taken any part in discussion on the Bill. We have heard the evidence from the United States about how data collection increases public awareness and reporting of offences. A free phone line, if it were possible, would be a very good idea, too. We know from the helpline for the London bombings how very helpful that has been. I hope the Minister will respond very positively to the amendment.

I hope that what I am about to say will be viewed as very positive. It is certainly intended to be. I am very interested in the amendment. Anything that tackles prejudice and bigotry is of concern to the Government. We take those problems very seriously and solutions are very much at the core of our thinking about a whole range of social, economic and community-relations matters. I sat on the Bench reflecting that some years ago, when I helped to launch one of the many partnerships in which my local authority was involved on hate crime, it was drawn to my attention that we were not doing as we should. We were covering race, religion and homophobia, particularly the latter in the context of Brighton and Hove, but someone in the audience at the meeting said to me outside, “You have forgotten a whole range of people”. I asked them to give me their story. They said, “It is not just those groups who are traditionally the victims of hate and disrespect, it is others as well. Elderly people often are, and people with disabilities are particularly so”. I was quite surprised. I then made some inquiries. The officials advised me that they had had reports of those sorts of problems, and that we should be actively involved in tackling them. We then undertook to reach out much more to groups of people who were disabled in some way and who had ended up being a victim of a hate crime. I am very sensitive to the issue.

Ultimately, I argue that the proposed new clause is unnecessary, quite simply because the Home Secretary already has very wide powers under Section 45 of the Police Act 1996 to obtain the sort of data to which all speakers have referred. I know that that Act attracted some criticism from the Labour Benches when it was being pushed through Parliament, but we certainly did not have a go at it on the basis of the data of this nature which it was collecting, because clearly it is conducive to ensuring that we are all better informed about police work.

It might assist your Lordships if I say a few words about the work that is already in train to obtain the information which the proposed new clause would request. The Secretary of State has existing statutory powers to require chief constables to provide statistics on crime that are currently exercised under the police annual data requirement. Home Office proposals made under the annual data requirement for 2007-08 include requests for crime and incident data that include instances where homophobia and prejudice against race and religion have been identified as factors. I am more than happy to give an undertaking this afternoon that we are more than willing to add disability to the list in this proposal.

This April, the Chief Constables’ Council of the Association of Chief Police Officers also resolved to collect data on hate crime where race, religion or homophobia were contributory factors. It has requested information from forces from July 2006 onwards. This request does not have statutory force, but ACPO is the stakeholder body which the Home Office consults in determining the annual data requirement, so it would not be difficult for the Home Office to ensure that this issue is picked up actively as part of its approach. Provided that feasibility and practicality issues that were raised in the initial consultation can be overcome, it is likely that the collection of hate crime data for a range of motivations, including disability and sexual orientation, will form part of the 2007-08 annual data requirement, particularly given that ACPO already supports such monitoring. This data collection will also be more feasible and less onerous for forces once new systems, planned for 2007-08, are in place for the central collection of disaggregated data for individual crimes recorded by the police.

The arrangements for consultation on the annual data requirement with the Association of Chief Police Officers have been working well, and we do not believe that creating specific statutory data requirements outside these consultative arrangements is the best way in which to obtain high quality and reliable data. If it would assist all those who have contributed to the debate, I shall certainly ask Home Office officials to contact them to discuss our proposed approach to this.

I also advise the Committee that the Statistics Commission is conducting a review of crime statistics and is due to report in September. I shall ensure that today’s debate is drawn very carefully to its attention. As the noble Baroness, Lady Anelay, mentioned, a separate and independent review set up under the previous Home Secretary is planned to report in September. Again, I have no doubt that the review body will want to reflect carefully on this debate. I shall endeavour to draw out the salient points made by contributors so that those views are fed in.

In summary, the powers are there and we have consultation arrangements in train. I have given a commitment to ensure that this form of hate crime is added to the list. For those reasons, I do not think that an amendment of the type proposed would take us any further or add anything to that which we can do.

I am very grateful to the Minister for the partial reassurance that he gives. I look forward to any approach from Home Office officials as it may enable them to understand a little more deeply and even encourage them to include amendments of this type in legislation. We have had a number of government Bills on these matters over the years, and it would be extremely helpful if this sort of amendment could finally be included in one to demonstrate an inclusive agreement that we are all keen to progress in these areas. I know that the Government have been very keen in the past to progress these matters. The amendment was an encouragement for them to do that little bit more, and to do so without having to be constantly reminded. Progress has been a little slow. I am very grateful to the noble Baroness, Lady Anelay, for her support. I well remember our debates on successive Home Office Bills. In the light of what the Minister said, at this point I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 116:

I support the noble Baroness in her amendment and hope very much that my noble friend on the Front Bench will be able to look seriously at what the amendment seeks to do. The noble Baroness has put the case in her exemplary way. It is difficult to add to her argument but I would like to underline two or three points.

First, yes, I am as concerned as she is about the protection of the child. But I am also concerned about the effective protection of society. This is where we repeatedly become counterproductive. Punishment of course has a key place in penal policy, but I would suggest that punishment without rehabilitation has little to be said for it. The battle is to enable the offender to become a responsible and positive member of society. The difficulty with this provision is that, at a young age, a child is stigmatised within the community. Does this mean that we have given up hope of rehabilitation? If we have any serious commitment to rehabilitation, the concept of anonymity at that age is tremendously important. It allows us to get to work on the really demanding and tough job of working with the child to help him to become a responsible citizen. As things stand, I do not believe that we are helped in that endeavour.

Nevertheless, a couple of other points need to be made. I always think that when we discuss these issues, in this House in particular, we must be honest with ourselves. Most of us do not suffer the kind of living hell that is the experience of many of the most disadvantaged communities in our society. This evening I shall be on a train to Cumbria, to my home in one of the most beautiful and lovely parts of the country. As I go, I shall be reflecting that there are many who are locked into a daily, weekly, monthly, annual experience of delinquent, aggressive behaviour with which it becomes very difficult to cope. I therefore believe that we should be at pains to put on record our solidarity with those at the receiving end of this experience.

That makes it all the more important for us to be objective about what is really going to help: not just to express the frustration by naming and shaming, but to do something that will overcome a repetition of the problem in the future. I am one of those who is troubled that in so much of the execution of our current penal policy, whatever our high intentions, there is still a tendency to confirm a life pattern of delinquency and to aggravate the problem. It was not only a passing reference—a sort of marginal comment—to talk about the “badge of honour”. Among some young people, I think it would be quite an attraction to have all the publicity and their name in a newspaper. Is that going to help with rehabilitation and winning that child to an understanding of the damage—psychological and physical—and the harm that their conduct may be doing to others? There is a serious hard job of work to be done with such young offenders. It needs to be done by expert people working in confidence with the young child, and not in the context of a great media hullabaloo about the individual concerned.

From that standpoint, and simply because I believe in our responsibility to the communities that are suffering, I think that it is our duty to look very hard at what is actually going to be helpful and what is not. I do not believe the current situation is helpful. I believe that the noble Baroness is absolutely right to be seeking to correct the situation.

My name is also to the amendment. I rise to support the noble Baroness, Lady Linklater, and the noble Lord, Lord Judd.

The naming and shaming policy introduced in the Crime and Disorder Act 1988 and extended in the Serious Organised Crime and Police Act is opposed by the Children’s Rights Alliance for England, which is made up of 13 very respected children’s organisations, and has been criticised by the chair of the Youth Justice Board and by the Human Rights Commissioner of the Council of Europe. As the noble Baroness says, it clearly puts us in default of our obligations under the Convention on the Rights of the Child, under Articles 3.1, 41 and others. A measure that has such heavyweight opposition and is in such clear breach of our international human rights obligations must bring enormous benefits in the prevention of crime and the promotion of public welfare if it is to be seen as a proportionate measure. There must be an enormously good reason for such a measure.

I therefore hope that the Minister will be able to give us information on the benefits which this measure has brought. I have searched for information and research findings from the Home Office, the Youth Justice Board and other bodies on how effective these measures have been. So far, I have been able to find none, and one must assume that, so far, no concrete information is available which justifies this interference with basic rights.

When the Government responded to the concerns of the Joint Committee on Human Rights, of which I am a member, about these measures to name and shame, they said that they would explore different avenues to ensure that courts were aware of Articles 3.1 and 40.1 of the Convention on the Rights of the Child. I have searched for information on whether this has been done. I could find only a very recent guidance document, dated May 2006, from the Justices’ Clerks’ Society which sets out the law on publicity concerning youths in anti-social behaviour order proceedings. It makes no mention whatever of Articles 3.1 or 40.1 or any other aspect of the international human rights framework relating to such measures, nor does it make any mention of the concept of the best interests of the child or maintaining the child’s sense of dignity and worth.

I echo others in saying that these measures impose further misery on families whose lives are usually full of misery and failure already. They add to that the stigmatisation and vilification of their neighbours, and they impose a stigma on all their family members, whether involved or not, that cannot be erased because the information is in the public domain, on the internet, for years.

I also follow the noble Lord, Lord Judd, in putting on the record that everyone deplores the way in which some communities have become appalling places to live because of social breakdown. The solution, however, is not to give some people in that community the chance to stigmatise and vilify others; it is the opposite—measures to promote social cohesion and mutual respect; and we know what those measures are. The measures which allow those names to be put in the public domain do the opposite and add to social breakdown. In that sense, I wholeheartedly support the amendment.

I should like to express my strong support for the amendment and give noble Lords some figures from the Home Office. Between 1 June 2000 and 30 September 2005, 25 children aged 10, 58 children aged 11, 99 children aged 12, and 227 aged 13 have received anti-social behaviour orders. Of those anti-social behaviour orders, only 1 per cent has had a parenting order attached to them; only 1 per cent of children have received that sort of support.

When I see this policy, I feel so depressed by what we are doing to some of our most vulnerable children. It certainly puts in my mind the experience of our most vulnerable children in children’s homes when we neglected them as a society by not putting professionals in charge of them and many of them experienced abuse. I cannot say how distressing I find this legislation.

However, I recognise, as have several of your Lordships already, the great harm done to many of our communities by young people and adults through their anti-social behaviour. I myself used to live near one of the largest housing estates in Europe and used to work with some of the young people in the area. I pay tribute to the Government for their whole-hearted and vigorous determination to address anti-social behaviour. I recognise, too, the need for local communities to note what is being done to address these concerns. There is a balance in all things, however, and this goes to an extreme—way beyond the pale—and is counterproductive in many of its ramifications. When I spoke to the noble Lord, Lord Warner, who is a former director of the Youth Justice Board, he said that parenting orders were the most effective and economic means of preventing reoffending among young people. But I have already cited the fact that only 1 per cent of all these children given anti-social behaviour orders were given this support.

I am grateful to the noble Baroness, Lady Linklater, for moving the amendment and giving us the benefit of her thoughts on this subject. It was a speech I have heard before, but no less interesting for that. The points contained in it are very interesting indeed. Ultimately, however, I do not find myself in great sympathy with the amendment, though I certainly understand the range of issues, and I appreciate the committed tone and the plea that come with it.

The noble Lord, Lord Judd, in supporting the noble Baroness, put his finger on what is one of the more important issues for me: the desirability—indeed, the need—for us to express solidarity in society with the victims of crime, particularly of the sort of anti-social behaviour we have been discussing this afternoon.

I acknowledge that there are difficulties, particularly in dealing with juveniles who can have their offensive behaviour glorified as a result of this process. I accept that there is concern about that. I also understand that there are times when the sort of publicity that some court cases involving young people give rise to can have a damaging effect and has the potential in some cases to make it harder for that behaviour to be addressed. We have to balance that against the potential for greater disorder by those in breach of anti-social behaviour orders, and the nuisance, aggravation and disturbance in communities that some of those individuals can create.

It is unfortunate that in some senses we lack crisper statistical data with regard to the outcome of publicity, but then it is a difficult area in which to make a value judgment. It is also a difficult subject on which to collect hard data. I come to these issues with what I would describe as a rather common-sense approach. I live in a very pleasant area that is not far from the seafront, but which is adjacent to a part of my city that people sometimes see as a harbinger of particular sorts of crime, although that is actually an unfair reflection. What I often get from our local community is a claim that historically insufficient attention has been given to issues of anti-social behaviour, and a plea for relief. Part of that is a desire to see that young people are not only brought to book but are seen to be brought to book and are clearly and visibly identified in a way that is sensitive to community needs and aspirations and community protection. That is the nub of this whole issue.

I want to make it clear, too, how the amendment would affect our legislative approach. As the noble Baroness well understands, it would simply repeal those sections of the Crime and Disorder Act that remove the automatic imposition of reporting restrictions but which give the courts discretion in the matter. That is the important point. That discretion operates in proceedings against juveniles who are in breach of ASBOs, or which relate to the making of ASBOs against juveniles on conviction of criminal offences.

It has to be said that publicity of these proceedings is often an integral part of local agencies’ efforts to tackle anti-social behaviour; there is no question of that. But there is no naming and shaming. ASBOs are made in open court and unless the court imposes restrictions, the media are entitled to report them, even if they involve young people. But it is for the court to decide whether to impose reporting restrictions. The courts recognise that these cases sometimes, perhaps often, need to be reported for two reasons: first, to let the community and the victims of anti-social behaviour know that something positive has been done to stop the abuse—that is important because communities need to have confidence in the criminal justice system—and, secondly, to publicise the prohibitions so that communities can help to enforce the order.

Publicity is not aimed at punishing or shaming the individual. We need to remember at all times that the anti-social behaviour of juveniles and, indeed, adults—despite the statistics that are quoted we need to remember that adults are most subject to ASBOs—will have had a serious and lasting effect on other people’s lives. As I said at the outset, the needs of such individuals need to be very carefully balanced with those of others in the community who have a right to be protected.

However, the court can still impose reporting restrictions if it believes that the situation warrants it. The court will have had the opportunity to consider very carefully the circumstances of the individual—their background and any mental health problems from which they are suffering—because there is an absolute requirement on it to have regard to the welfare of the child or the young person.

The existing legal framework—of which we have had several years’ experience—is working well. Within that framework local authorities have a duty under various pieces of legislation to carry out assessments before the court comes to a conclusion. Support will be given if it is required. We always recommend a needs assessment to ensure that support services are in place. Although I heard what the noble Earl, Lord Listowel, said about the percentage of parenting orders, I would want to interrogate the data further before I passed judgment because they do not describe the full picture.

Ultimately we need to remember that the sole purpose of the order is not just the young person’s welfare. The harm that anti-social behaviour can inflict on an individual, a community and a locality has to be measured as well. If this Government have achieved one thing in the law and order field, it is to raise up the agenda and in people’s minds the importance of tackling anti-social behaviour in a precise way as it affects people in their homes and communities. I believe that we have the balance about right. I have heard the arguments and have listened to individual cases being recited, but, on balance, we need to protect communities and people in their homes and make sure that lives which have previously been disrupted and, in many instances, frankly, made hell, are properly respected. So I have ultimately come to the conclusion that we must reject the amendment.

I notice that there has not been a single supporter of the status quo in the debate. Will the Government encourage courts to use their discretion to protect the anonymity not only of children and young people with learning difficulties and mental ill health, but of younger children as a class, even if older teenagers should perhaps sometimes be named and shamed?

It is for the courts to decide. We, here, pontificating and arguing the case in the House of Lords on a warm, sunny afternoon in the summer are not best placed to decide. The courts need to have access to information about the individual and they need to know the circumstances in the local community. That evidence needs to be brought before the court, and the court needs to make a judgment on whether it is in the best interests of the individual concerned—the individual may have their best interests considered as part of that process even where they are the perpetrator. It is for the court to determine the best course of action, because it is much closer to what is going on in the locality. It is right that the court must have careful regard to the mental health and well-being of the young person caught up in the process. One understands that those with conditions such as Asperger’s syndrome and attention deficit disorder may not necessarily find that the publicity helps them in the same way in which it is designed to help the wider community.

Will the Minister withdraw his remark about pontificating?

Sorry, I was being slightly florid in my language—“debating and considering”.

I want to come back to the question of the Cross-Benchers’ ability to work out statistics. The Minister said that he wanted to revisit the 1 per cent figure because it sounded a bit odd. We agree that it sounds a bit odd, which is why we mentioned it. The House of Commons Library anti-social behaviour order statistics, dated 16 May 2006, list parenting orders made as a result of an ASBO being issued to a child aged 10 to 17. This is where we may have got it wrong. The number of parenting orders is listed as 37 out of 3,135 ASBOs, so it is possibly 1.1 or 1.2 per cent. I would be interested to know if the Minister can reach a different conclusion than 37 over 3,135 being 1 per cent.

I was trying to make the point that I do not have those statistics in front of me, and I do not have the data to hand. I want to reflect on the context in which those parenting orders were made and on the rest of the statistics, but I am grateful to the noble Baroness for her intervention.

I thank the Minister for his response to these concerns. Given the widespread anxieties expressed in all parts of the Committee on this matter and on the previous amendment, are the Government considering a review of policy in this area? Have they any plans or might they begin to think of that as a possibility? Might the Minister be prepared to discuss this with his noble friend and interested Peers outwith the Chamber between now and the next stage of the Bill? It would also be helpful to know, in due course, how many under-15s given ASBOs have had the publicity restrictions on them lifted.

I was very grateful to my noble friend for responding to my point about solidarity. Does he agree that meaningful solidarity is not just sharing in an emotional response, but talking honestly with the people about whom we are concerned about what policies are necessary to deal with the issue on a lasting and effective basis, rather than just getting a certain amount of instantaneous satisfaction because an individual has been named?

I shall respond to the points made by the noble Earl, Lord Listowel, and the noble Lord, Lord Judd, in the following sense. Community solidarity is terribly important and, like me, the noble Lord thinks that our society would be more orderly if there was more of it; perhaps we grieve the passing of a more contented time. It is important that we consider those matters. What we are trying to do is in a sense to reinforce or underpin that community solidarity, and we see as an outrage acts of anti-social behaviour such as those he and I are familiar with in our different and wider political work.

The noble Earl, Lord Listowel, raised questions about the need for more informed debate in this area. The Youth Justice Board is conducting research into the way in which anti-social behaviour orders have impacted on younger offenders. Obviously, those who have an interest in this field are completely able to make approaches to the Youth Justice Board, and to submit whatever views and provide it with whatever evidence they wish. I have no doubt that, since we are a long time into the process of using anti-social behaviour orders as a tool that enables communities to fight back against anti-social behaviour, as this policy programme continues to develop it needs to be better informed, and we need to make it more precise and to understand better its impact.

I reflect on my community work and contact with our local communities, and I have found a broad welcome for what we have managed to achieve through this programme and by attacking anti-social behaviour in this direct way. That is not to say that it should always be above criticism, nor should we not seek to refine and improve the policy, because that clearly has some merit. Even its most fierce critics—I have been given a flavour of them this afternoon—will agree that the anti-social behaviour order has a place in the package of measures that can be used to tackle crime in our communities.

I am most grateful to all noble Lords who have spoken so eloquently on behalf of my amendment. I say to the Minister that of course it is down to the court to decide about naming and shaming, but I am sorry to hear that he feels that what I have said is a recycling of what I have said previously, or that he has heard my speech before.

I was not seeking to be disparaging in any way. I want to make one point. The noble Baroness falls into a trap when she says that it is all about naming and shaming. I invite her to think that it is something more than that. I went to some length to describe how I envisage the process working, how I watch it work and the sort of impact that it can have in a community. We need to understand that, because a whole constituency of people out there sees the value of knowing and understanding why young people are brought to book in such a way. It is right that that happens on many occasions and I am sure that she would accept it.

I was going to say that the noble Lord simply said that he had heard my speech before, and that I of course acknowledge that naming and shaming—an issue about which I have not spoken in this House previously—is part of a wider range of problems and difficulties that children and communities face. I entirely endorse what the noble Lord, Lord Judd, said so eloquently—that we have to acknowledge what communities can suffer at the hands of damaged, disturbed and disturbing young people. When we are talking about communities, we are also talking about those children; they are part of the community.

The essence of our argument is that we recognise the disturbance, the discomfort and, often, the agony that law-abiding citizens go through, but we also have to address the strategies that will protect them from further such behaviour—strategies that will contribute to changing the behaviour of these children, who are and most probably will remain part of the communities. If we merely name and shame or punish and do not look at how to take things forward constructively, we will not achieve what we all want, which is peaceful, happy and contented communities in which everyone can live together. Preventing reoffending is what we are all about.

The proposed new clause would simply shift the balance back to where it was before with a presumption of anonymity. Of course, it is down to the court to decide whether to publicise details, but previously the presumption was in favour of anonymity in recognition of the need to protect children under the UN Convention on the Rights of the Child and, indeed, in recognition of children’s needs in general. I am simply saying that that balance has been shifted around so that the presumption is now in favour of publicity. One might say that it is a very small detail, but it is vital if we are to deal constructively with the damage that can be caused by such young people.

I am also grateful to the noble Baroness, Lady Stern, for pointing out the significant lack of real research into, and understanding of, the outcomes of ASBOs. It would be fair to say to the Minister that the jury is still out on ASBOs. As he will know, there is a whole raft of strategies within communities under all sorts of headings whereby children and their problematic behaviour can be addressed. When an ASBO is breached, for example, a child is criminalised, but currently there may be all sorts of ways in which the courts can act. The balance between the needs of the community and the needs of disturbed and disturbing children remains the issue. We should be doing all that we can to see that communities can live together in harmony and that the children’s behaviour can be changed.

I shall reflect on this matter because it is deeply significant. We will definitely return to it with vigour later in the Bill but, in the mean time, I reluctantly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7 [Amendments to the Crime and Disorder Act 1998]:

[Amendments Nos. 117 to 126 not moved.]

Schedule 7 agreed to.

Clause 21 [Parenting contracts: local authorities and registered social landlords]:

moved Amendment No. 126A:

I will speak to Amendments Nos. 128 and 129 in my name and that of my noble friend Lady Anelay, and I will comment on the other amendments in the group.

As the noble Baroness, Lady Linklater, has highlighted, the purpose of the amendments to Clauses 21 and 22 are to write into the Bill that the purpose of using parenting orders and contracts is a dual one: to promote the well-being of the child as well as trying to prevent anti-social behaviour. The amendments aim to test the true voluntary nature of parenting contracts and to gain assurances that they will be used as a last resort. The noble Baroness has highlighted concerns with which we have great sympathy. This theme has been running throughout our discussions on this part of the Bill.

Your Lordships’ House has a strong reputation on children's issues, especially in the application of improving outcomes for the most vulnerable children and their families, predominantly guided by the principles set out in Section 10 of the ChildrenAct 2004. Indeed, in many ways these debates link into those that we had recently on the Childcare Bill, the Children and Adoption Bill and the Work and Families Bill, as well as those that are currently ongoing on the Education and Inspections Bill. All those Bills touched issues of disrupted family life, care and learning difficulties, which all feed into possible underlying reasons for anti social behaviour. That only goes to highlight the vital need for cross-departmental co-operation on children and family matters. Out of interest, can the Minister, with her concern for joined-up government, indicate whether the different teams and Ministers on these Bills have met to discuss how this overarching subject is played out across them?

Amendments Nos. 128 and 129 look at the detail of the proposed powers for social landlords and at whether it is appropriate for them to be able to use them on those who, in the words of the Bill, are “likely to engage” in anti-social behaviour under new Section 25B(1)(a)(ii), as inserted by Clause 21, or appear,

“to reside…in the local authority’s area”,

under new Section 26A(1)(b), as inserted by Clause 22.

Amendment No. 128 tightens up the wording in new Section 25B(1)(a)(i), which enables the RSL to enter into a parenting contract with a parent if he has “reason to believe” that the child is likely to engage in such behaviour. Can the Minister inform the Committee what would constitute “reason to believe”?

Definitions and thresholds of behaviour are widely drafted in this Bill. The drafting could mean that any parent becoming a tenant is pressured to sign a parenting contract to ensure that their child does not become involved in anti-social behaviour. I hope that this is not the Government’s intention, but one could argue that the potential is always there. The definition is too broad. How will one judge whether the power is being used appropriately, and who is to check? We have already heard the arguments regarding lack of training, which is a theme that pervades discussions on the Bill.

These amendments replace the wording so that the RSL could use the power only if the child had engaged in anti-social behaviour or “had threatened” to do so. I took this turn of phrase from the Joint Committee on Human Rights report, page 14, paragraph 1.34, regarding anti-social behaviour injunctions. It states that courts must be satisfied that the person against whom the injunction is sought is,

“engaging, has engaged or threatens to engage”,

in such action. The use of “threatened” would be much more appropriate in this context, as well as offering some compromise between those who would like the power completely removed and those who would like it kept.

Amendment No. 129, on the other hand, is a straight removal of the power of the RSL to apply for contracts in relation to children who appear,

“to reside…in the local authority’s area”.

The paragraph implies that an order could be made against a parent with whom the child or young person does not reside, and who may have little control over their behaviour. That raises many questions. For example, what criteria would be used to determine whether they appear to reside in the area? Should they be present every day or every weekend? Over what length of time should they be present? Will they be able to pin these children to particular parents, who may not have parental responsibility for them? Will the RSL have a duty to take disability into account in this context, as we discussed in relation to previous amendments? I hope that the Minister will give these points consideration in her reply.

I will not reiterate the figures that the noble Baroness has already shared with the Committee, but it is worrying that, since April 2004, significantly fewer parenting contracts than parenting orders have been issued. If orders were being used as a last resort, it would be the other way around. I hope that the Minister can explain this discrepancy and take the time to outline the exact process via which an order can be made without a contract.

Giving parenting contracts a statutory duty to improve the well-being of the child, particularly on the fourth area listed in the 2004 Act—the contribution made by them to society—enables a more holistic assessment to be made that may, in turn, flag up serious problems that can then be addressed in a focused and tailored manner. After all, the Government are continually reminding us that every case is different. In this respect, I support the principle behind these amendments.

I support a number of amendments in this group, particularly Amendments Nos. 126A, 126B, 128, 129A and 129C. I feel strongly that the drafting of these two clauses needs to be tightened. For example, “is likely to” is too vague; greater precision is needed. When the Minister replies, I hope that she will say whether the National Housing Federation was consulted concerning registered social landlords and what the uptake of counselling and guidance by parents under contracts and orders has been.

I hoped that the noble Baroness, Lady Linklater, would be pleased by these clauses for the reasons highlighted in the last debate. The noble Earl, Lord Listowel, made the point that parenting orders have been the most creative way forward, and the noble Baroness has indicated that she agrees with that view, but is concerned that parenting orders should not be used too early.

I shall make a few comments in parenthesis. When one has the privilege of talking to families that participated in the parenting order process, one hears the common complaints that no one offered them that help and support earlier. They feel that had they had the benefit of something like a parenting order before their children’s behaviour accelerated to such a state that they were committing in public the difficult behaviour evidenced at home, much would have changed and been better. I have been a practitioner in that world since 1977, and when it was first proposed that parenting orders should be imposed, unlike parenting contracts where one obtains the assent of the parents, I was very concerned about whether they would work. My concern has been allayed by what parents have told us.

I am sure that noble Lords involved in this debate, all of whom have a keen interest in children, have looked at Positive Parenting: The National Evaluation of the Youth Justice Board's Parenting Programme which was published in 2002. Research showed that parenting programmes had a positive impact on parents and young people and those parents exiting those programmes had a low rate of negative comment. Only six per cent felt negative or indifferent to the programme they went through, and nine out of 10 said that they would recommend it to other parents in their situation. Improving Children’s Behaviour and Attendance Through the Use of Parenting Programmes, which was published in 2004, echoed similar good results. Overall, the programmes were reported to have a very positive impact on parents’ relationships with their children and the children’s behaviour. Many parents who had initially expressed reservations and even outright hostility were, by the end, saying positive things about the intervention, with some describing it as a lifeline. Typical comments included, “Had I not found this programme, I don’t know what I’d have done”.

I need to be clear and unapologetic in saying that the Government’s view is that if we can get help to parents who need it early, we can reduce the level of dysfunction and bad behaviour to the benefit of children and parents. Most parents want to be good parents. There are not large numbers of parents who positively want to be bad. Therefore, early intervention is a positive, not a negative. For that reason, parenting orders should not be used as a last resort. When a problem is identified, parents need help. We need to try to get help to parents as quickly as possible to deal with that poor behaviour. It is often evidenced on the estate, but may not have crossed the line to the extent that one wants immediately to arrest the individual and deal with him through the criminal justice system. However, the annoyance and irritation is of a high level. We want to use the opportunity creatively to help and support parents who actually need better to control their children.

I am grateful to the Minister for pointing that out. It was not my intention to put parenting orders and parenting contracts together. Parenting orders are the last resort and I am most grateful to the Minister.

I understand that to be the case. I reiterate that we think it is beneficial to intervene early before it has ripened to a stage where it is much more difficult to give the children and the parents the help and support they need.

On Amendment No. 129, there may well be circumstances where the young person or child has an official address but spends a significant amount of time away from that location between two different addresses. One scenario is where there is a split parenting order and the child lives part of the time with one parent and part of the time with another. Sometimes, as an extended family member, they live part of the time with their grandmother or part of the time with their aunt. It would be wrong to say which is the primary address. Rather than be unable to give the child the help that they obviously need, the provision allows that flexibility.

I re-emphasise that it is vital that proper assessment is made of the child. I assure the House that we will make it clear in guidance, when it is published, that that is how it should be dealt with. References to a person appearing to reside somewhere are not unusual. There are a number of precedents for that in anti-social behaviour legislation—for example, in the enforcement consultation and supervision provisions for orders, including anti-social behaviour orders, under the Crime and Disorder Act 1998. They apply to adults, children and young people.

It is really not in the interests of the child, the parent or the wider community to wait until a child is threatening to commit anti-social behaviour that has become more serious. We are concerned that “threatening” would make the provision far too narrow. One could be simplistic and say that “threatening” is likely to consist of a verbal threat, whereas “likely to engage” is not so limited. The expression “likely to engage” is well precedented in existing parenting control legislation. If a child is running around with a crowd of young people who are well known to engage in such behaviour and there may be reasons to believe that they are likely to engage in anti-social behaviour, there may be no express threat but it is quite clear that they are likely to do so.

A parenting contract might include a requirement to attend a programme, as I said. There is a real opportunity here for us to do something that is truly supportive. From the debate on the previous group of amendments, I understand that there is concern about the number of parenting orders and about behavioural contracts. We have not talked enough about behavioural contracts. There is a whole issue about whether we are collating the information. A number of authorities enter into acceptable behavioural contracts, but they do not record how many are made. In many areas, there are more acceptable behaviour contracts than there are parenting contracts, or parenting orders, so we must consider all of that before making a judgment.

There are now also the individual support orders that can go with ASBs. That will make an improvement. So our whole thrust is to intervene early and effectively to give the skills and the support to parents so that they can help better to manage their behaviour. I would therefore have hoped that the provisions would have been warmly welcomed by those in this Committee who I know care so passionately about supporting families and their children. I hope that I have given a great deal of comfort.

The Minister indeed gives me a good deal of comfort and I know that, in many ways, not so much divides us. However, there is a division in the sense that the implication is that effective intervention to support parents and children at risk of ASB starts with the parenting contract. Our position is that there is whole raft of possible interventions—the Minister just mentioned ABCs—that could and should be brought into play long before then so that real prevention is in place where it is needed.

The Minister pointed out that there are all too many cases in which a family has reached the point of a parenting order with the kind of court involvement and coercion that that involves, and it is the first time that it has received help of any kind. On the one hand, that is greatly to be regretted, although I also acknowledge the great success, as I said in my opening remarks, and the real value and worth of parenting contracts and parenting orders.

I intervened really to say that even a parenting contract is undesirable and perhaps heavy-handed, because all sorts of other forms of support are available, at least in theory, before such a process is brought to bear.

I agree. If we go right back to the beginning, everything that we are doing with children, in the nursery and in supporting schools to intervene much more creatively, comes before this. However, if it comes to our attention that those interventions have either failed or not been tried, we have to be in a position to do what we can do most creatively in order to intervene. The provisions should not be seen in isolation. They are but an additional tool in the kit which good practitioners can use at the appropriate moment if it is efficacious to do so. It in no way detracts from what the noble Baroness says, with which I agree; that there are a number of steps that we could and should take to intervene earlier.

I thank the Minister for that reply. We totally agree on the need for prevention and continuity of support. My point was that even for a parenting contract to be brought into play just when a child is likely to behave in such a way is possibly a step too far. However, I am comforted by what she has had to say and, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 126B and 126C not moved.]

moved Amendment No. 127:

If we were to agree with the noble Baroness’s amendment, it would drive a significant hole through our policy of allowing more agencies to enter into parenting contracts and apply for parenting orders, as set out in the Respect Action Plan. Clauses 21 and 22 enable not only a local authority but also, as the noble Baroness outlined, a registered social landlord to enter into a parenting contract or seek a parenting order in respect of a parent of a child or young person if they have reason to believe that the child or young person has engaged or, in the case of contracts, is likely to engage in anti-social behaviour. I understand that the noble Baroness may say, “Well, such landlords do not have very much to do with children”. But a housing officer, who may have difficulties with a family reported to him, quite often has a lot to do with maintaining the well-being of the community in the housing association or estate for which he is responsible.

Currently, 52 per cent of social housing is owned by registered social landlords. They therefore play an important and growing role in managing housing and wider neighbourhoods, including tracking and tackling anti-social behaviour. The noble Baroness will know that, increasingly, neighbourhood teams are working in collaboration with the other agencies to take a more holistic approach towards management and intervention. Quite often, it is a collective decision on which agency in a particular case will be the lead agency for that family. Therefore, it is important to have within that framework an opportunity where it is appropriate for the social landlord to take a lead, particularly if it has been indicated that they are likely to be the most appropriate person, since they have better access, relationships and opportunity.

As set out in the Respect Action Plan, the Government are determined to increase the levels of parenting support available to all parents and ensure that those who are unlikely to seek help voluntarily take help through formal contracts and court orders. I would remind the Committee that parenting contracts and parenting orders are early interventions which are supposed to nip problems in the bud. Preventing registered social landlords entering into parenting contracts or seeking parenting orders, as these amendments would do, makes no sense when they already have much more coercive powers at their disposal.

Registered social landlords can seek eviction of a family because of anti-social behaviour. They can enter into an acceptable behaviour contract with a family. They can also seek anti-social behaviour orders and injunctions against their tenants and others in the community. It is surely illogical to prevent them entering into arrangements which may help prevent the worst sanctions against families. If action is not taken there is a significant risk of families losing their homes or being taken to court. We want them to have the full panoply so that they do not have to reach immediately for eviction, because that can have really detrimental consequences for the family and children in terms of their long-term stability and friendship groups. While their behaviour at school may be fine, anti-social behaviour in the home may cause them to be evicted, which is much more detrimental. So we want landlords to have a full toolkit and I hope that the noble Baroness will agree that this is less severe than eviction and less harsh than using some of the other powers they already have. We think that they should see this as a menu in order to intervene both creatively and supportively, but becoming increasingly firm if that appears to be the only way of getting compliance. They may take many steps before taking the final step of evicting the family from their home.

We will encourage registered social landlords to work in partnership with other specialist agencies that are expert in this area. We will provide all the relevant agencies with clear guidance on the use of this power and the new provisions will require them to comply with it. It is important to make it clear that parenting contracts and orders are not designed to criminalise parents, but instead are concerned with providing support so that parents are able to guide and protect their children more effectively. As I said earlier, it appears from the data we have that parents do better afterwards and that this can have a beneficial effect on the behaviour of the children as well.

Turning to the question of whether Clause 23 should stand part of the Bill, local authorities must have the flexibility to make appropriate local decisions to ensure that their functions are carried out as effectively as possible, not least by tackling anti-social behaviour in young people and providing effective support. This clause inserts a new Section 28A in Part 3 of the Anti-social Behaviour Act 2003 so as to make it possible for the Secretary of State or the National Assembly for Wales to make an order enabling a local authority to contract out to a specified person the functions of entering into parenting contracts and applying for parenting orders. Subsection (2) makes it clear that the order providing the power to local authorities to contract out is subject to conditions specified in the order. I hope that from all that has been said, the noble Baroness will feel more comfortable with the new section and will agree that the clause should stand part of the Bill.

I thank the Minister for that response. I actually failed to make my remarks on whether Clause 23 should stand part of the Bill, but I can now run it all together, as it were. It is important to point out that we feel that the Secretary of State should not have the power to provide by order that local authorities may subcontract their powers to enter into parenting contracts or to apply for parenting orders to specify types of bodies. A similar provision exists in relation to ASBOs where the Government have recently proposed to give local authorities the power to contract out to organisations managing their housing stock, including tenant-run organisations. It seems likely that the Government would seek to use the contracting-out power proposed in this Bill in a similar way. These are risks that we need not and should not run—if every child matters and their needs including those of their families are met, all that is inextricably intertwined.

However, I did take great comfort from what the Minister had to say on the earlier amendments. The point here is that what needs to be done is to affirm the importance of the co-operation that housing landlords should be exercising with all the other agencies because they have the people with the skills, knowledge and experience to pick up on problems and take action at the earliest opportunity; indeed, the earlier the better so that things can be nipped in the bud. In the light of what we have both said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128 not moved.]

Clause 21 agreed to.

Clause 22 [Parenting orders: local authorities and registered social landlords]:

[Amendments Nos. 129 and 129A not moved.]

moved Amendment No. 129B:

moved Amendment No. 130A:

moved Amendment No. 137A:

Clause 23 provides for the making of an order by the Secretary of State to enable local authorities to operate with flexibility in making local decisions to ensure that their functions are carried out as effectively as possible. The ability to contract out all or some of their parenting contract and order-seeking functions to other bodies may assist authorities in their management of strategic and operational functions.

It is the Government’s view that the person to whom a local authority’s functions may be delegated in pursuance of such an order is to be treated as a public authority for the purposes of the Human Rights Act 1998 in the discharge of those functions. The new section is modelled closely on similar provisions in Section 1F of the Crime and Disorder Act 1998, which was inserted by the Serious Organised Crime and Police Act 2005. Under it, the Secretary of State may make an order which enables a local authority to contract out its functions of applying for anti-social behaviour orders and similar types of orders.

The Government have intervened in the case of Johnson v Havering. In this case, the Government have argued before the administrative court for their original intention as to the meaning of “public authority” in Section 6 of the Human Rights Act 1998. The intervention is partly in response to the recommendation of the Joint Committee on Human Rights in its 2004 report on this subject. The judgment is expected shortly, and it would be inappropriate for me to comment on it.

As the committee recommended, and the Government agree, a successful intervention presents the best possibility of resolving the lack of clarity in the case law on this subject. If we put such provisions in this Bill, it would cast doubt on previous legislation in which we have intended the same but have not stated it explicitly. The Crime and Disorder Act 1998 is but one such example. I would therefore not wish to make amendments such as these in isolation, and I am sure the noble Viscount appreciates the reason why. The Government wish to consider the position carefully before making any such provision here, lest it leave unwelcome or unforeseen implications and run the risk of creating further uncertainty.

I am grateful for the Minister’s reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

[Amendment No. 137B not moved.]

Clause 24 [Anti-social behaviour injunctions]:

moved Amendment No. 138:

I understand the noble Viscount’s concern, but I hope that I shall be able to assure him that it is not merited. The current wording of this clause ensures that anti-social behaviour injunctions are available for use by practitioners subject to the consideration of the court in deciding whether they are an appropriate and reasonable form of intervention. It is important to note that housing injunctions are available against adults, but will not normally be made against persons under the age of 18. Thus, there should be no need to specify this on the face of legislation.

We take the view that the existing practice of the courts will ensure that, save in very exceptional circumstances, injunctions are applied only to adults. We would not wish to fetter the discretion of judges in deciding whether an application is appropriate in the circumstances. To the very best of our knowledge there are very few cases in which housing injunctions to tackle anti-social behaviour have been made against people under the age of 18. However, we are aware of a small number of cases where injunctive action has been taken against 17 year-olds for the purposes of preventing anti-social behaviour. That would occur only where the court was satisfied that the recipient of the injunction was fully capable of understanding and adhering to the terms of an order. There is no evidence that we have been able to identify showing that we should be concerned about the use of injunctions to tackle anti-social behaviour against minors on this basis. I hope that will assist the noble Viscount.

It is still the case that a person under 18 cannot be imprisoned for breach of an injunction, so there is that additional safeguard. I am sure that the court will have taken into account the sort of injunction that would be appropriate for someone under 17, and I am sure that the noble Viscount has as much faith in our judges as I do.

I am sure that that faith is not misplaced. I am grateful to the Minister for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25 [Injunctions in local authority proceedings: power of arrest and remand]:

moved Amendment No. 138A:

I am against unnecessary custody. While I am on my feet, I shall try to identify one small drafting point in line 25 of page 23, where it says “the court thinks”. Courts may think any thought that comes into their heads. Would it not be much better to say “is satisfied”?

I shall take the noble Lord’s drafting point first. It is right to say that the phraseology in this part of the Act is a familiar way of indicating an exercise of the court’s discretion, but I understand the import of the noble Lord’s concern. Parliamentary draftsmen over the years have grown familiar with distinguishing between the two and I think that the courts understand what that phrase means.

The effect of the amendment would be to tie the hands of judges so that they could not use their discretion based on the facts of the individual case to decide whether a suspect should be remanded in custody or released on bail pending a full hearing. I say to the noble Baroness, Lady Harris, that it is a neat point as to whether people should not be charged with a substantive offence. Some grave offences are currently dealt with as anti-social behaviour because there is a desire, particularly with younger people, to intervene in that way rather than reach straight away for a criminal sanction. I was told of one case where it seemed very bold not to have taken criminal proceedings as it involved arson, burglary and a number of quite dangerous activities. In their wisdom, the practitioners decided that an anti-social behaviour order would be the better course. I am sure that the noble Baroness, Lady Harris, would not want to dissuade people from taking a course which may be effective and more beneficial to young people and yet not necessarily involve criminal proceedings.

We have strong concerns that requiring the courts to release a suspect on bail following an initial hearing, irrespective of how severe the alleged anti-social behaviour is, would address only the needs of the alleged perpetrator and neglect those of the victims and the wider community. We do not want to see situations where the court is powerless to stop a person who is alleged to have committed acts of serious harassment, possibly involving violence, returning to the community pending a full hearing.

If we accepted these amendments, I would be very curious to know what message we would send to communities living under the blight of anti-social behaviour, and what messages we would send to the criminal justice system and, indeed, to judges on how they should use the provisions that we have made available to them. In seeking to deliver respect, it is critical that communities have faith in the ability of agencies to take swift action to protect people from serious harassment. One can imagine the fear and helplessness of neighbours where a suspect is arrested following serious anti-social conduct only to return next door a day or so later, pending a full hearing.

We also have serious concerns about removing the power of the court to remand a suspect in custody where it has decided that a medical report should be obtained. Surely it is right that the court should retain discretion on what course of action is appropriate where it has concerns that the alleged conduct may have been caused in part or in full by a medical condition, especially where the court holds that that condition might give rise to further anti-social conduct if bail were granted.

The noble Baroness is very familiar with the fact that the juvenile Bench is specifically trained to consider the best interests of the child and to have a more child-centred approach. In the adult court we can trust judges to make appropriate orders. I hope that with that explanation, the noble Baroness will be a little happier than she was.

I say to the Minister that perish the thought that I would want to take a course that was not both helpful and productive. I have listened very carefully to what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 138B and 138C not moved.]

Clause 25 agreed to.

Schedule 8 [Injunctions in local authority proceedings: powers to remand]:

[Amendments Nos. 138D to 138G not moved.]

Schedule 8 agreed to.

Clause 26 [Appointment of Chief Inspector]:

moved Amendment No. 139:

I speak on behalf of my noble friend Lord Dholakia. First, I congratulate the noble Lord, Lord Ramsbotham, on powerfully representing a view that I think is shared by many of us in this Chamber. What I say will in some ways echo what he has said much more eloquently than I could do.

We have returned to an aspect of the Bill which, for those involved with the work of the Prison Service and penal reform, has caused the greatest concern, confusion and dismay. We have been considering the proposition that the prisons inspectorate is the most highly acclaimed internationally of all our inspectorates, as well as being the most highly respected institution at home. It is recognised for its standards, achievements and, above all, its independence, but it is to be subsumed into an amalgam of five criminal justice inspectorates. This causes confusion and dismay because it seems to jettison such a rare and valuable resource in the name of modernisation, rationalisation, efficiency, unification, a holistic approach, and giving the public the best possible service. I am paraphrasing the words of Charles Clarke last March.

That demonstrates a fundamental failure to understand the nature of the prison inspectorate, to recognise the essential and vital differences between its role and that of other inspectorates, or to see that it already represents a precious beacon of best practice. Instead, the clause proposes the diminution of everything that the inspectorate is for. My parallel with what happened after the Seeborne committee and what that did to social services is not as wide of the mark as was suggested by the Minister when we debated this at Second Reading.

When different departments or inspectorates are combined with notions of unification and a holistic approach, by definition it means that differences in areas of expertise become blurred. Over time these crucial differences are gradually lost. That is a tragedy. The essential difference is based on the fact that the inspectorate is looking at the treatment and condition of people who have been deprived of their liberty, which, as Dr Silvio Casale—the president of the European Committee for the Prevention of Torture—said,

“is fundamentally different from other criminal justice measures and has different legal and moral implications”.

It requires specialised skills and experience, and is critically dependent on its absolute independence from Government—its chief inspector coming from outside the service—so that it can criticise policy as well as practice. It can use its own criteria and methodology, rely on unannounced inspections and visit and inspect on its own terms at least twice every five years.

If the clause stays part of the Bill we will be left with a very atypical, diminished element of a much larger whole. The independence, so highly prized, will be circumscribed in a variety of ways. Clause 27(8) allows Ministers to,

“specify functions, organisation and matter that should not be subject to inspection either in whole or in part”.

Clause 30 allows Ministers to control the time and resources of the inspectorate by directing inspections on specific matters. Clause 30(3) states:

“In exercising any of his functions the Chief Inspector shall have regard to such aspects of government policy as the responsible ministers may direct”.

That is not all, but it is among other clauses which seem to amount to the complete undermining of its independence, its ability to criticise policy as well as practice and use of its own criteria and methodology.

Anne Owers has made a statement that until 2008:

“Ministers have said that they want us … to ensure that the current extent, robustness and methodology of custodial inspection is preserved and incorporated into the new … Inspectorate”.

Unless these clauses are amended, I fail to see how that will be possible.

Finally, I reiterate my deep concern about the future inspections of children and young people in custody. This is a still further specialised area that is treated in a specialised way within the prisons inspectorate itself. There is a specific team which deals only with YOIs, using separate criteria, a different set of expectations and a child-centred approach. Those of us who have worked with vulnerable children know that it takes great skill and specialised experience to take on this sort of work. We currently have that.

Indeed, I have come to the view that where our child prisons—the STCs—are concerned, in which inspections are now carried out by CSCI because the children are so very young, it might be that the specialised team of the prisons inspectorate would be even better placed than CSCI to carry out inspections, because it understands custody as others cannot. Had STCs been inspected with such rigour and candid, open criticism of findings in the past, I wonder, in the dark watches of the night, if some of the fearful practices uncovered by the independent report of the noble Lord, Lord Carlile—strip-searching, solitary confinement and restraint of children as young as 12—might have been stopped sooner and a life saved. What will be the future of this work in the brave new world of combined inspectorates?

In the light of the range of arguments and depth of feeling this clause has engendered, I hope that the Government will carefully rethink its position on this amendment.

Briefly, I support Amendments Nos. 148 and 149 in particular, and what has been said by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Linklater.

Placing five inspectorates under one umbrella is foolhardy, to say the least. Today, however, I shall speak only of the prison inspectorate, covered by these amendments. The inspectorate of the Prison Service is vital to the criminal justice system. What else has brought what is wrong in our prisons to our attention over the years, as well as what is right? The current prison inspector, Anne Owers, has exposed some realties of prison life, warts and all. She is an independent specialist. If this inspectorate is subsumed into others, that specialism will inevitably be diminished, as will future inspections and the respect for human rights the inspectorate upholds.

In another place, my honourable friend Hazel Blears, when a Home Office Minister, said that;

“we have given an undertaking that we will not abolish the role of the prisons inspector until we are satisfied that the new combined inspectorate can deal with such issues properly”.—[Official Report, Commons, 6/3/06; cols. 690-91.]

That day will never come.

Finally, I consulted the Prison Officers’ Association, which represents prison officers and others in prison establishments, on these proposals. One might think that it would welcome its inspectorate being diminished, but it does not. Its general secretary, Brian Caton, wants to continue working with Anne Owers as he does now, to ensure that outrages, as outlined by the noble Lord, Lord Ramsbotham, do not occur in our prisons in the future.

I hope that this group of amendments will either persuade the Government to adopt them, or that they will ultimately be carried. I am fortified anew in that view by powerful speeches; not only that of the noble Lord, Lord Ramsbotham, but also the two speeches that were sympathetic to it from both sides of the House.

For the past two decades, the existence of the independent, standalone Chief Inspector of Prisons has been celebrated here at home and greatly admired abroad. The reason is clear: the post and the people who have held it have been able to shine lights into corners where none would otherwise shine and where all too often horrible conditions of ill treatment have been perpetrated in our name on people deprived of their freedom with no one else to help them. That is why this post and the way in which it has been filled has been celebrated at home and greatly admired abroad. The chief inspectors have gone where they wanted and spoken to whomever they wanted. They reported direct and publicly—which was very important—to the Home Secretary on what they found. In doing so, they have very often been a thorn in the ample flesh of Ministers in successive Governments, which is why I strongly suspect that the Government want to reign them in through the Bill.

I support the amendment moved by the noble Lord, Lord Ramsbotham, the arguments that he used and, indeed, the arguments that have been heard around the Committee this evening. I should like briefly to add my thoughts.

I doubt very much whether a single Member of the House will support the Government on this issue. I would be very surprised indeed if one did. These are important issues. I have always felt that at a time of an ever increasing prison population, with reports of violence, racism, suicides and murders in our prisons, the one assurance we have is of a highly efficient and motivated Chief Inspector of Prisons who will go and fearlessly report on what she or he has seen. I felt slightly more relaxed about the state of our prisons because of the work of successive chief inspectors. They have exposed what was going on, which has led to improvements in the way our prisons are run.

That is not to say that more improvements are not necessary, but chief inspectors have the power to do that. They have the power to do that because of their total independence and their ability to report directly to Government and to the wider world, and because they have not been constrained or trammelled by some of the bureaucratic rigmarole which the noble and learned Lord, Lord Mayhew, has quoted so effectively.

It has been a strength of this country and our penal system that we have welcomed—until now—reports of chief inspectors of prisons that have been distinctly uncomfortable for Government. Surely, as a country we should not be ashamed of that; we should say we are proud of it because it is such an essential safeguard.

I can understand the words that are used by the Government, but I cannot understand the reasons for this proposal. And it is my Government. I have supported this Government on most things since 1997. I feel absolutely dismayed and let down that they are being utterly silly. I can think of no good reason—I have heard none and I have read none—why this should be the case. I am depressed at the thought that we will have to have this debate. Let us hope that before we get to Report the Government will think again.

There is no chance that this provision will pass through this House. I have yet to find anybody who supports the Government, not only inside the Chamber but outside it. I say to the Government that many of their most loyal supporters will feel compelled to vote against them unless there is a change of heart.

I support the amendment. I begin by making it clear that although the noble Lord, Lord Ramsbotham, may feel he is in an awkward position and in some way is special pleading because he is talking about a job that he held, he has no reason to feel that at all. I have not met anyone who sees any sense in this proposal.

I should like briefly to bring to the discussion the perspective of the Joint Committee on Human Rights, of which I am a member. The Joint Committee dealt with this proposal in its 10th report. It noted that Her Majesty's Chief Inspector of Prisons,

“is an important part of the machinery for upholding the human rights of prisoners and ensuring compliance with human rights standards in prisons”.

The inspectorate, the committee said, is,

“in large part a human rights monitoring body—a non-judicial means of preventing future violations of the human rights of prisoners”.

The committee went on to say:

“The effectiveness of the system for inspecting and monitoring prisons therefore directly affects the UK’s ability to meet its international obligations”.

The Joint Committee was also concerned about whether the new inspectorate arrangements would meet the United Kingdom Government’s obligations under the optional protocol against torture, which the noble Lord, Lord Ramsbotham, mentioned and which the UK Government have ratified. The convention has come into force and we now need to prepare for it.

The committee asked whether the new arrangements meet the requirement for an independent national preventive mechanism to inspect places of detention. In pursuit of its inquiry, the committee raised a number of points with the Government and received assurances that the new arrangements would assure independence and continued effectiveness. In fact, in their response to the committee, the Government argued that the reformed inspectorate would be more independent, more transparent and more robust for two reasons: the power given to the Chief Inspector of Justice, Community Safety and Custody to require Ministers to lay any report before Parliament, and by making it explicit that the chief inspector shall publish every report in whatever way he or she wishes.

It will not surprise the Committee to know that the Joint Committee on Human Rights was not convinced and concluded:

“We cannot share the Government's confidence about the future in the absence of explicit statutory provision underpinning these assurances”.

The committee set out six specific guarantees that seemed to it to be required to be written into the Bill. I shall run through them quickly. There was a requirement that the inspection function in relation to prisons be carried out by actual visits to places of detention, because that is not currently clear. There was a requirement that there should be regular visits, because that is not clear. There was a requirement for stronger guarantees of independence, including removal of the power of ministerial direction; an express power in the Bill of unannounced inspection; an express power for the inspector to set his or her own standards; and an express requirement that prisons inspection be carried out by reference to human rights standards. None of those is in the Bill but they seemed to the Joint Committee to be the minimum necessary to ensure independence.

The committee was of the view that without those guarantees the new inspectorate would not be compatible with the requirements of the optional protocol and that there would be a greater risk of breaches of the human rights of prisoners, especially the right to life and the right not to be subject to inhumane or degrading treatment. Here, one is reminded of the warning given by the chief inspector, Anne Owers, in 2002, about the threat to life because of the absence of a proper detoxification regime at Styal prison, and the subsequent six deaths of women prisoners there, after which a detoxification regime was introduced; and the attention that she has drawn to the frequent strip-searching of children under 18, who may have come from a background of physical and sexual abuse, which is very relevant to the need to prevent inhumane and degrading treatment. Whenever people are locked away, completely under the control of others, independent and effective inspection is needed. The Joint Committee on Human Rights felt that the Government's proposals would not provide that safeguard.

Much has been made of the benefit that amalgamation would bring in enabling inspection across the criminal justice system—the joined-up fulcrum to which the noble and learned Lord, Lord Mayhew, referred. I have frequently pondered this since it was first suggested and I am still unclear what on earth it could mean. I am moved to agree with the noble Baroness, Lady Gibson, that the whole amalgamation is foolhardy. I can see all sorts of linkages that require working together in all directions. The Chief Inspector of Prisons may find hundreds of mentally ill people in prison who should be transferred to hospital and may want to have a joint project with the Department of Health in that regard. The probation service may discover failings in resettlement work in prisons and see benefits in joint work with the prisons inspectorate—in fact, it has; it did and a thematic report was produced. The Chief Inspector of Prisons may find prisons full of inadequate, sick people convicted of minor offences and have questions about why they were prosecuted. A joint study with the Crown Prosecution Service is perfectly possible.

That is the only argument that the Government have made for this merger: that something that is joined up will be better than something that is not joined up. Can the Minister say what inspections need to be done across the whole criminal system that need to involve the Chief Inspector of Prisons and have such overriding importance that they call for this massive reorganisation, which has so little support?

Like my noble friends Lady Gibson of Market Rasen, Lord Dubs and Lord Borrie, who expressed his great concern at Second Reading but cannot be in his place this evening, and like noble Lords in all parts of the Committee who have made a series of devastating speeches, I fear that, without the amendments, Her Majesty’s Inspectorate of Prisons would be in the gravest danger. For years I have admired successive chief inspectors of prisons and the prisons inspectorate, for they have been a beacon of civilisation. I oppose anything that risks dimming that beacon. I ask the Minister to think again.

I regret the lack of scrutiny in the other place of the matters to which the amendments refer. No doubt there was a reason why time was unavailable. I have little personal experience of these matters, although when my late noble kinsman was Home Secretary, he had a reputation in the Prison Service of asking questions on prison visits that it had not expected a Home Secretary to ask. I believe that verdict was intended to be a compliment.

I did, however, have the privilege of chairing the Northern Ireland Affairs Committee in the 1997 to 2001 Parliament. We were a committee that, in a troubled province, had a range of opinion that stretched from Peter Robinson MP, Andrew Hunter MP, then the MP for Basingstoke, at one end, to Ken Livingstone, then the MP for Brent East, but we divided on amendments only twice in four years on a long range of reports. One of our reports was on the Northern Ireland Prison Service. We had as advisers most distinguished academic experts on prison subjects from the University of Cambridge and from KCL. The report was unanimous. A crucial witness was the noble Lord, Lord Ramsbotham, in his then capacity. After the report was published, the then Permanent Secretary of the Northern Ireland Office, with long Home Office experience on prison matters, thanked me for the agreed agenda that we had laid out for him and the director of the Northern Ireland Prison Service. There was no resentment of what we had said, or of what the noble Lord, Lord Ramsbotham, had said to us that had powerfully influenced us. I shall be most attentive to what the Minister says, but she will need to be phenomenally persuasive.

I remark in conclusion that it is a nice irony that the Whip on the Bench during the presentation by the noble Lord, Lord Ramsbotham, of his amendments was the Whip who normally answers to your Lordships’ House on Treasury matters.

I strongly support the amendment in the name of my noble friend Lord Ramsbotham. I look forward to the Minister’s response, and I am sure that the change is very well intentioned, but my concern, having listened to the current chief inspector, is that the services in these settings may be diluted in the new arrangements. The chief inspector emphasised that she visits a prison every week. She is so closely in touch with what goes on, and she has such a strong voice, coming from that background. She drew attention to concerns about the treatment of families and children in the Yarl’s Wood Immigration Removal Centre—the inspectorate has responsibility in that area, too. That was so useful.

Following that statement, in part, the noble Lord, Lord Dubs, and I visited Yarl’s Wood earlier this year. We saw the real concerns that the chief inspector had expressed, and I am very grateful that the Government have now introduced a review and recognised that there are issues about the lengths of stay. One woman to whom I spoke had been locked up there for five months with her eight year-old and 16 year-old children.

It is extremely important to recognise, as I think we all do, that many of these very vulnerable people should be in mental health institutions rather than custody. With such vulnerable adults and young people in our prisons, and such a scarcity of resources, we must always have a strong advocate to say that resources must be addressed at such people’s needs. We must keep a strong undiluted voice to champion the needs of these vulnerable adults and young people.

I have a feeling that the Minister will say that we are mourning a death prematurely, but I do not know how she can say that after hearing such expert information, especially from my noble friends who have served in this area. From time to time, I have contributed to asylum Bills and debates on asylum. I do not know how, without the first-hand knowledge and experience of the prison inspectorate, we would ever have been able to argue the case for asylum seekers. Of course, this will continue, but we know that this widely established and deserved international reputation is bound to be seriously diluted under the Bill.

My noble friend says that he is somewhat cynical about this new measure, which is no surprise because he has been a very model of an inspector. He is now a model of modesty when he defends his own, old, vital position. What evidence can the Minister provide to prove her faith in the system and that the inspectorate still can survive, and show that this Bill can gold-plate such a remarkable institution? Everything seems to point to the contrary.

I guarantee to be brief. Over the years I have visited individual prisoners in all the prisons of Northern Ireland, and a small sample of those in England, including male and female establishments. I have corresponded with a further quantity of prisoners and have been for many years a member of the All-Party Penal Affairs Group. Therefore, I have no hesitation whatever in supporting this group of amendments. I urge the Government to rethink their policy so that we can continue to have an independent and freestanding inspectorate of prisons.

I wish to speak in strong support of the amendments proposed by the noble Lord, Lord Ramsbotham, to preserve the current status of Her Majesty’s Inspectorate of Prisons. First, I pay tribute to the work done week by week, quietly, and with non-partisan determination, by those at the inspectorate who provide a detailed, objective and expert assessment of our prisons and immigration detention facilities. The Government’s plans to subsume it within a conglomerate of criminal justice inspectorates are misguided. I come to that conclusion after listening to the debates that have taken place on this matter over the past months, both within and outside Parliament.

I have tested the views put forward by both sides of the argument against a set of questions that I believe any Government must consider when they plan administrative reorganisations on the grand scale. I shall set out some of those questions. Is the organisation functioning effectively now? What is it doing wrong that can be remedied only by structural change? What is the added value that it will gain from structural change that cannot be gained in any other way? What will be lost by change? Is that loss critical to the long-term effectiveness of the organisation? Is there an alternative route to improving the function of the organisation—one that on this occasion would not have the disadvantages of the Government’s proposals? The debate today has been a devastating critique of the Government’s plans, put forward from around the Committee. We have heard a range of views explaining why the Government’s plans are deeply flawed and why they have failed to pass the test put by the questions that I have considered.

Subsuming the prisons inspectorate within a wider parent body is inappropriate. It would significantly damage its effectiveness. There are alternative, preferable options for improving its operation within the criminal justice family, without damage to the prisons inspectorate itself. In opening, the noble Lord, Lord Ramsbotham, drew our attention to the inelegantly titled option 7 in the policy document.

The Government have consistently recognised that the Inspectorate of Prisons is a beacon of excellence. It simply does not make sense to subsume it within a system that the Government have said is not operating as effectively as the independent prisons inspectorate does. Why would people of the current and past calibre of chief inspector wish to be deputy to a new portmanteau chief inspector when they cannot speak out independently or have independent access to Ministers? The Government have argued that the weakness of the current system is that the criminal justice system acts in silos. Of course it is important that the inspectorates have a dialogue, but there are perfectly sensible ways in which inspections could proceed effectively without combining the inspectorates. When the chief inspectors of the various services got together with Ofsted in 1999 and asked the Government to fund a secretariat that would co-ordinate joint inspections and process joint inspection reports, the Government refused to provide funding. That is a route which would provide a solution for the Government.

We have deep concerns about Clause 30(3), which states that,

“the Chief Inspector shall have regard to such aspects of government policy as the responsible ministers may direct”.

It is clear that that would prevent the chief inspector speaking out against and criticising the Government in certain circumstances. The Government’s response from Fiona Mactaggart in another place was to say:

“Ministers will not have the power to direct the chief inspector other than where a statute provides for it”.—[Official Report, Commons Standing Committee D, 28/3/06; col. 246.]

That is exactly the point of Clause 30(3). This statute gives Ministers a potentially wide power of intervention. Any assurance that a Minister currently in office would not use the power of course would be accepted, but it cannot bind future Secretaries of State and Administrations. We really do not think that this is a sufficient measure, and there have to be guarantees in the statute.

The independence of the Inspectorate of Prisons is paramount. In another place the Government maintained that this can be achieved by creating a statutory office of the inspector, but we simply do not see why that in itself would guarantee the independence of the position. Many statutory offices are created by legislation, but that does not necessarily mean that they are independent.

The noble Lord, Lord Ramsbotham, also referred to the important matter of the UN convention in his opening remarks. I read with interest the statement made by Anne Owers on 28 June. She expressed her particular concern that the Joint Committee on Human Rights and other international experts do not believe that the current provisions for the new inspectorate will be compatible with the optional protocol to the UN Convention on Torture which came into effect last month. We share that concern.

In conclusion, I argue that the Government’s proposals pose significant risks to the future independence and excellence of the prisons inspectorate. Indeed, the Minister in another place, Fiona Mactaggart, recognised that there are risks. She maintained that the Government had,

“put a lot of energy into the design of the inspectorate to minimise those risks”.—[Official Report, Commons Standing Committee D, 28/3/06; col. 252.]

But I argue that significant risks remain, risks that must not be taken, which is why Clause 28 should not stand part of the Bill. My hope is that the Government will take the opportunity of the Summer Recess to think again on this matter and come back on Report and agree with noble Lords that the right thing to do is amend this Bill and thus preserve the independence and current status of the inspectorate.

I have rarely been showered with such compliments. “Extreme folly”, “stupid”, “silly”, “without light”—the compliments flowed from all around the Committee.

I say straightaway that it is no part of the Government’s intention to restrict, limit or water down the independence of the inspectorate. If we were trying to silence the inspectorate, I respectfully suggest that this would be a very odd method to adopt. It would be odd, too, in view of the individuals that we have historically chosen to fulfil the role, in relation not only to prisons but to the Crown Prosecution Service, probation and police. All the inspectorates hold one thing in common: they are led by rigorous, independent free spirits who do not restrain themselves one iota from being not only one thorn but a number of thorns in the side of any Government—and I welcome those thorns. It is of absolute importance that any Government should be assured that the rigour and vigour necessary to undertake robust and effective inspection remains. They are, as the noble Lord, Lord Ramsbotham, rightly said, the stuff of which security is made.

If we had wished to choose a puppet—someone who would bow to the Government’s will—it would be odd indeed to have chosen the names of Tumim, Ramsbotham and Owers. No matter which complexion of Government we have benefited from, nothing in our history indicates that the Government of the day are so foolish as to choose someone who lacks that vital component of independence of spirit. If that was our intent, we have failed in a consummate way.

Let me put to rest the suggestion made by the noble Lord, Lord Ramsbotham, that this is an attempt to silence the inspectorate, and the suggestion made by the noble and learned Lord, Lord Mayhew, that we in some way intend to rein it in. The noble and learned Lord and I have both laboured in the job of lawyers and he knows that we look for evidence—and the evidence is that we have always failed to do that because we have never tried to do it. I can assure the Committee that it is no part of our intention to do that now.

Let us look at the issues that have arisen. All around the Committee it is said that we do not need to change—the noble Lord, Lord Ramsbotham, said, “If it ain’t broke, don’t fix it”—and others say that this immutable position must remain. Regrettably, we are seeking to deal with a 21st-century difficulty with a 20th-century model. In moving forward, we have to look at the most effective way of guaranteeing the rights of individuals, the improvement of the conditions in which they are held and a better understanding of the fact that the criminal justice system is now interlinked.

Why do I say that? Because before 2003—and I go back to the report of Lord Justice Auld—it was clear that the criminal justice system was not working well in unison. Each part individually was of superb construction. I would compare it to the erstwhile Olympic relay team that the Americans were blessed with: fast, the best in its field, effective, superb, a thing of beauty. But it lacked one essential component: an understanding that in a relay you have to have a baton, that the baton has to be passed from individual to individual, and that the only way you win is by going across the line. We needed to create a quintessentially British relay team—perhaps not quite as fashionable or as sleek, but knowing a number of things: first, what a baton looks like; secondly, to whom it must be given; and, thirdly, what the finishing line looks like and where to go through it.

That was one of the problems with which the criminal justice system was faced. We have done a lot to bring its components closer together—the creation of the National Criminal Justice Board, the creation of the local criminal justice boards, working together through the crime and disorder reduction partnerships, and the work with the local strategic partnerships have all played their part. However, we have also learnt that the management of offenders has to be end-to-end, and that if we are to inspect the system and the way in which individual offenders and victims move through it, we have to understand it end-to-end.

Inspecting in silos will no longer be a proper way of inspecting the system, because things have now changed. Decisions in relation to the criminal justice system are made at different points and are interconnected. Now the Crown Prosecution Service is responsible for charging. The role which the courts play is significantly different after the 2003 Act. Probation and prisons are no longer separate—they have to work in unison if we are to have end-to-end management. It is proposed that the probation service should have the role of offender manager. Part of the period will be spent in custody; part will be spent in the community. How that works will be of critical importance. The role which education, health and the other factors play within prison and how they are linked to the community becomes more important. Inspecting those issues in addition to, not instead of, the role which is currently played by each of the inspectorates becomes of additional importance.

It is not our proposal to diminish in any way the specific role currently undertaken by the Inspector of Prisons. I hear what is said about the Inspector of Prisons and I endorse it, but I endorse too the high international regard in which our inspectors of police, probation and courts are similarly held. It would be wrong to say that the inspectorate should be differentiated in that way, albeit that we celebrate what has been done by our inspectors.

We have fully registered the concerns that have been expressed about the position of the Chief Inspector of Prisons. We recognise and will preserve the vital role that she plays in safeguarding the human rights of prisoners and detainees. However, we need an inspection regime that looks at the offender management process from start to finish through custodial and community settings. A single chief inspector for the justice system will be able to say unequivocally what is wrong with the system as a whole and what needs to be done to put it right, especially at the joins where the activities of a different agency interface. For example, it is no longer enough to assess the provision for an offender’s educational needs by reference to the facilities available in prison without considering provision in the wider community before and after custody, as I have sought to explain. We recognise that dedicated inspection of treatment and conditions of prisoners is indispensable to protect human rights.

We have therefore preserved in full, as a distinct duty of the new chief inspector, the existing statutory remit of the Chief Inspector of Prisons. That will ensure that this special form of inspection remains a priority. The new chief inspector will have a statutory duty, when staffing the inspectorate, to maintain sufficient expertise and experience relating to the systems and organisations inspected. The new chief inspector will continue, like the Chief Inspector of Prisons, to be able to set the criteria for inspections. We can give an assurance that prison inspection will be in terms of domestic and international human rights standards rather than service standards or government targets. The new chief inspector, not Ministers, will set inspection criteria, and he or she will be entirely free to set criteria derived from core legal and human rights, as is currently the case with the Chief Inspector of Prisons. There will be no change. That will enable the United Kingdom to continue to meet in full its international obligations in relation to prisons.

The Committee will note, too, the requirement to consult the chief inspector before using the power of direction, which must be done in even the most urgent cases. We expect that the chief inspector will bring his or her independent voice to any such consultation. The new chief inspector will continue, like the Chief Inspector of Prisons, to make unannounced inspections as he or she sees fit. The inspector will also, like the Chief Inspector of Prisons, be a statutory independent officeholder appointed by the Queen. He or she will report directly to Ministers and will be able to publish reports and require them to be laid before Parliament. He or she will be free to criticise government policy if that is producing the wrong outcomes for prisoners and detainees.

I want to clarify the points that my noble friend is making. The department seems to be saying that everything that the Chief Inspector of Prisons now does will remain with the new inspector. My worry is that there are four other inspectorates that this super-human being will have to look after. I cannot really see how that is going to work.

The way in which it will work is that the inspectorate will be able to identify the inspectors who seamlessly carry out this work, who will continue to be employed, because we recognise the importance of maintaining a seamless continuity in this high-risk area. We shall stage the transition of the new inspectorate and not abolish the Chief Inspector of Prisons until we are satisfied that the new chief inspector is ready effectively to carry out the prisons inspection duty. So the calibre of the inspectors who are employed to do this work in partnership with the chief inspector will not change. We shall still need inspectors who specialise in prisons, the CPS, courts and police; that is not going to change. But the person who organises that and is the bridge that brings it all together will be one person instead of four. So the unity that we need to reflect the changes that we are making in the criminal justice system will be there. But the important thing is that what the inspectorate actually does—the independence and the rigour and vigour of the current prison inspectorate—should not be diminished. It should be enhanced. That is our aspiration.

Of course, it will be possible to provide for the justice inspectorate to inspect offender management from end to end, including the custody element, and still leave the prisons inspectorate to inspect the treatment and conditions of prisons as a separate issue. But that carries a substantial risk of duplication and conflicting recommendations, and the implementation of the National Offender Management Service brings a new focus on reducing reoffending within the context of close working between prisons, probation and other government departments and the voluntary and civic sector. So while inspection of the treatment and conditions of those in custody is an important element that should be preserved, a single chief inspector will be a far more powerful voice for change than two inspectors concentrating on different aspects of systems involved in reducing reoffending and public protection. Above all, the single inspectorate will be able to follow the way in which offenders are managed before, during and after imprisonment as a complete process, more easily spotting any gaps or weaknesses in the system, and making recommendations to address them to the agency concerned—which will inure to the benefit of everyone. It will therefore be a stronger, more flexible means of ensuring that the criminal justice system works in a joined-up way from start to finish than the present fragmented system.

I hope I have been able to assure Members on all sides of the Committee that the new inspectorate will be every bit as independent as the existing prisons inspectorate; that it will have the same latitude of freedoms to challenge the policies of the Government of the day, and that it will be as focused as our current chief inspector, Anne Owers, and her predecessors in protecting the human rights of prisoners.

I stress again that the justice inspectorate will be able to set its own inspection criteria, undertake unannounced inspections and decide the frequency of inspections for itself. None of that will change. I know many noble Lords, not least the noble Baroness, Lady Stern, want to see some or all of these safeguards in the Bill, a point well made by the Joint Committee on Human Rights. I give no absolute undertaking now on all six put forward by the JCHR, but if the noble Lord, Lord Ramsbotham, will agree to withdraw his amendment, we can use the summer break to look at its proposals in more detail. I would hope and expect to come forward with some government amendments on Report to address the concerns that have been raised.

I thank the Minister for responding with her customary courtesy and fluency, and for covering a large number—though not all—of the issues that have been raised. I also thank all those who have spoken with such power and lucidity and covered so many aspects of the subject. When people look at Hansard, they will see much more than any one individual has been able to cover.

I am unconvinced by the Minister’s argument about the individuals who are chosen. She has to remember that they were choosing independent stand-alone people, and, as my successor, Anne Owers, has commented, you will get a different quality of people asking to be stand-alone rather than as deputies to someone else.

I am afraid I do not recognise this excellent criminal justice system described by the Minister as straining at the leash on the starting blocks. What I saw was a series of warring tribes, each competing against each other for ever-diminishing resources, who needed to be brought together. Each tribe had failings, which have been brought out in public and need to be addressed.

Many of the Minister’s remarks appeared to be directed more at the chief inspector of the criminal justice system—or of justice, community, safety and custody—rather than to the Chief Inspector of Prisons as a person. I respectfully submit that we have not yet heard any real comment on the points made about the optional protocol.

The Minister closed by suggesting that I might withdraw the amendment, and that we should all pause to consider. To quote the noble Baroness, Lady Linklater, I do so reluctantly, but we would all benefit from time to pause. I hope that the Minister will do so, and that we will come back on Report ready to resume this debate. I look forward to seeing the amendments that the Government may put forward, because I assure them that I personally—and, I am sure, other noble Lords—will be pressing on Report to raise this issue again and make certain we have got it covered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 agreed to.

moved Amendment No. 139A:

Perhaps I may say how much I welcome the speech of the noble Baroness, Lady Harris, because she ably and elegantly highlighted the current discrepancies between the disparate inspectorates, particularly in relation to race. Perhaps I may respectfully say that she gave an eloquent exposition as to why we need a joined-up inspectorate: we are now working with the inspectorate on the high-level business strategy for the future inspection regime and a specific strand is dedicated to race and diversity, which is being led by Her Majesty’s Inspectorate of Constabularies, so that the new inspectorate will use the best of existing practice.

The noble Baroness is right: the various criminal justice inspectorates are currently covered by both the general statutory duty under the Race Relations Act and by the specific requirement to ensure that the public authorities that they have responsibility for are compliant with all their statutory duties. This Government expect the new single inspectorate to comply with its responsibilities to inspect and report on race equality and to reflect those responsibilities in respect of all other functions.

Schedule 11(6) adds the new chief inspector to the list of bodies which are subject to the general statutory duty under the Race Relations Act to have due regard, in carrying out their functions, to the need to eliminate race discrimination and promote race equality and race relations. The first amendment would not add meaningfully to that. Presentationally, it might afford race equality greater emphasis, but that would beg the question as to the place of equally important issues, such as gender and disability equality and human rights. I know that the noble Baroness highlighted that when she said that sometimes we forget. Well, we are not forgetting here. We consider the Race Relations Act sufficient statutory underpinning for this important element of inspectorate business.

To give practical effect to the duty under the Race Relations Act, we have included in the programme of work and development of the business strategy for the new inspectorate a specific strand on race equality, led by specialists from the existing inspectorates. So, all the people who have that expertise will be able to help us to get the best possible quality-assured way of dealing with this issue in the new inspectorate. That will ensure that the substantial commitment to inspecting race equality outcomes, as a routine part of the inspection business that already exists in the justice sector inspectorates, is carried forward and developed in the new inspectorate. The noble Baroness will know that we have been very concerned about the present level of disparity and we need to grip that and find a more aggressive and successful way of dealing with it, so that we can assure ourselves that the system that we are creating is as fair, transparent and open as we can make it. It is a matter of great concern to us.

This work will involve the Commission for Racial Equality and other key stakeholders. We intend that inspecting for race equality and diversity generally, so as to ensure that inspected bodies have in place effective arrangements for the discharge of their obligations, will continue as an integral part of each inspection. We want the new chief inspector to have flexibility in determining how diversity in all its manifestations is to be examined—certainly, as a routine part of assessing performance, and also, perhaps, through occasional dedicated thematic inspections. Nevertheless, if, in future, Ministers consider that this responsibility is not being given sufficient emphasis by the chief inspector, they will be able to use the power of direction contained in Clause 30(3) to direct the chief inspector to have regard to this aspect of Government policy. That is a good example of the potential use that we envisage for this power. I know that it has drawn criticism from some but it might help the noble Baroness and those who later read what I have said to better understand why these provisions may not be quite as stupid or as flawed as some may suggest.

The second of the amendments would place on the Secretary of State a duty to report annually to Parliament on the progress of inspection and regulation bodies in respect of race equality. The Bill already contains, in Clause 32, improved and strengthened provisions for reporting by the chief inspector, through the responsible Ministers, to Parliament. We would expect the chief inspector’s annual report on the discharge of his duties to include reference to the discharge of the duty placed on him or her by the Race Relations Act, and the discharge of that duty will, as I have explained, be a constant factor in inspection activity. Ministers will be required to lay the annual report before Parliament.

I hope that I have reassured the noble Baroness that the amendment, which makes reference to other, unspecified, inspection and regulation bodies, is not necessary. We believe that the appropriate place for reporting requirements relating to other bodies is in the legislation governing those bodies. Therefore, I hope that this is one amendment that the noble Baroness will feel able to withdraw and that she will not need to come back to it on Report.

This is the end of a very long day on the Police and Justice Bill. It is always very nice when the Government come out with helpful remarks that enable me to withdraw an amendment. I am very grateful and I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at eight minutes before seven o’clock.