House of Lords
Thursday, 6 July 2006.
The House met at eleven of the clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.
My Lords, it was always the Government's intention to complete the Charities Bill in this Session of Parliament. As with any other Bill, the Charities Bill had to wait for parliamentary time in another place. I am pleased to say that Second Reading was completed on 26 June and that the Bill is currently going through Committee, which must be completed by 13 July.
My Lords, I am grateful to the Minister for that response, and for the good news that the Bill is now wending its way through another place. However, would he care to comment on why it took seven and a half months, after the lengthy pre-legislative scrutiny committee had done its work and after we had spent a good deal of time and effort in this House bringing the Bill almost to the point of conclusion before the general election in May 2005 and then spent further time deliberating it until November last year? Does he recognise that that delay in implementing measures that are highly valued by charities is more than inconvenient? The Bill contains measures to restructure the Charity Commission, to introduce an appeals tribunal and to facilitate mergers, and a good deal more that we badly need enacted.
My Lords, I am very appreciative of what the noble Lord has to say on the subject, because he and I clearly share a view about the importance and value of the Bill. Business matters in another place are entirely for business managers in another place. The House of Lords did an extremely good job. We spent more than 60 hours on the Bill over two parliamentary Sessions and I like to think that it was probably one of the most perfected Bills ever to have left your Lordships’ House.
My Lords, of course the Bill is being given urgent consideration. I understand that it is going through its third day of Committee today, and that Members in another place are giving it very careful scrutiny. We could have had this Bill in April last year if we had had the co-operation at the other end from the party opposite that we had from it at this end.
My Lords, like the noble Lord, Lord Best, I was on the Joint Committee that considered the draft Bill and was heavily involved in the 11 months in which we dealt with it before and after the election. Does the Minister agree that the Bill had singularly high public importance? The whole of the voluntary sector has been deeply engaged with it, and I commend the Government on the way in which they have brought the sector into it. Does he therefore agree that there is a severe dislocation in the way in which the public can follow the legislative process when there are these major gaps between bits of the legislation, and that it has an impact ultimately on the quality of the legislation?
My Lords, I very much regret the delay. I apologise from the government Benches for any uncertainty that it may have caused, but I, like the noble Lord, Lord Phillips, also pay tribute to the charities for their patience and their constructive engagement with government in bringing this legislation forward. The noble Lord played a major part in that, and I thank him for his work, as I do the noble Lord, Lord Best, because between them they made very valuable contributions to improving that legislation.
My Lords, given this extraordinary delay at the other end, is it not even more strange that we get from the Government ideas of putting a straitjacket of timing on business in the Lords? Could I invite the Minister to ask the right reverend Prelate to preach a sermon on beams and motes to the other place?
Iraq: Treatment of Women
My Lords, we are helping the Iraqi police and security forces to develop the capacity and ability to protect all members of Iraqi society. We are also raising the awareness of the role of women in society in Iraq through dialogue with the Iraqi Government and the promotion of Iraqi civil society groups. We welcome the recent Iraqi constitution, which includes protection of women’s rights. The constitution must lead to appropriate legislation.
My Lords, I thank the Minister for his Answer. It seems that women are suffering disproportionately from violence in Iraq: they fear to go to the market without male protection, there is strong pressure for women—even Christian women—to wear veils and domestic violence appears to remain unaddressed. It would appear that prisons are the only place for women to go, but recent reports of repeated abuse and rape by guards from the Al Kazima prison in Baghdad, where 200 women are incarcerated, does not give cause for comfort. Furthermore, the recent appointment of women MPs by the Government in Iraq is not necessarily representative of the minorities in that country. Does the Minister agree that it would be of great humanitarian value to set up women’s refuges? Can he also say whether any of the considerable amount of money allocated for reconstruction in Iraq has been spent on political training for women MPs so that they can be more effective in their campaigns against violence?
My Lords, first, because there is no statistical track through the Saddam period, it is very hard to disentangle whether things are very much worse, although I am inclined to the view that that is probably the case. We think that the idea of refuges is a strong one and I know that a delegation on this recently went to Wales to look at experience there. Secondly, we are working very hard, including with women MPs, to develop institutionally the rights of women. We want to make sure that there is capacity building in the human rights areas affecting women and the development of civil society, which is often a great bastion of protection and development for women, and also capacity building within civil society organisations. A good deal of the investment and effort is going into the three prongs of that approach.
My Lords, is the noble Lord aware that it was a Minister of the present Government who closed the women’s refuge centre in Iraq? That has caused great distress and many problems for Iraqi women. Furthermore, is he aware that Iraqi women are concerned about certain sections of the community which, while they purport to treat men and women equally, will leave women in a more disadvantaged position?
My Lords, I hope that I have addressed the point about the desirability of refuges. However, the bulk of our work involves trying, in an environment that is deeply hostile and in many respects very violent for all members of society, to ensure that the human rights ministry on the basis of the new constitution does the development and training. That would include provision for women in government; ensuring that women have access to lawyers and the professions; inviting them from all sections of society to engage in training in the work of civil society; promoting the role of women in many other respects; and, of course, training police forces to deal with some of those abuses, which are unquestionably taking place.
My Lords, has the Minister noted the case currently in the US courts of an American soldier accused of raping and killing an Iraqi girl and then of killing members of her family? Her uncle said that the incident had been kept secret lest it reflected badly on the family. Surely women’s rights ought to be universally respected whether by US soldiers or by the Iraqis. What are the Government doing, while they are still in Iraq, to encourage the Iraqi Government to bring forward legislation that will protect women, particularly from honour killings?
My Lords, we have always made it clear that the constitution, from the point at which it was adopted, has to be translated into real and practical legislation with which people can work. We certainly are doing what we can in training different elements of society to achieve that result. On the point about criminal abuses, I believe that the United States has expressed the view—as I do on behalf of this Government—that if there are criminal abuses, those who commit them should be brought to justice.
My Lords, perhaps I may take this opportunity to add my salutations to the Lord Speaker who is in her place. This is a great step in the advancement of women in our country.
Does my noble friend accept that we need to praise the women of Iraq, who have sustained their voices throughout a very difficult time? Through the steps we have taken in Iraq, does he think that we have caused the advancement of Iraqi women to slip backwards? Does he accept that they need all the assistance we can give them and that perhaps we have not been able to do as much as we should?
My Lords, the idea that people have gone backwards from the regime under Saddam Hussein, which took no account of the rights of women at all, is not one I subscribe to. Of course we must work hard to make sure that there is development and progress. Personally, I think that the fact that a quarter of the members of the new governing council of Iraq are women—a higher proportion than we have in our own Parliament—is itself a good sign, and I do not necessarily accept the view that those people have been somehow placed there rather than that they are genuinely representative of sections of Iraqi society.
My Lords, does the Minister accept that the brutal oppression of women in Iraq reached its zenith under Saddam Hussein, although it is true that it has continued in some horrific ways? There are targeted assassinations and even reports of beheadings and other horrors, as well as the terrible victimisation of women for not wearing headscarves and so forth. While one understands that there is a limit to what outside governments, including HMG, can do and that these matters must be gripped in Baghdad by the Government there, can we at least ensure that under the new constitution, which we advised on and supported, women really are protected and their rights really are enhanced so that we avoid the danger of institutionalising any kind of brutality or discrimination against women, as could be the case if we are not careful?
My Lords, I emphasise that there is absolutely no complacency about the position of women in Iraq, although judged by the record of Saddam Hussein—the suppression of the Marsh Arabs, for example, wiped out vast numbers of people, both men and women—it is a problem that has been in that country for some time. We must take concrete steps. We have 170 police trainers in Iraq providing professional skills and training for the police, including training in the areas of greatest concern covered by the Question. The training modules include a programme of training specifically about women. We are involved in a training facility within the Ministry of Human Rights, training trainers and providing training curricula, particularly on the importance of women’s issues. In the final analysis, of course we have to rely on the Government and the people of Iraq to determine these outcomes in their society. However, we are doing what we can to help the process of construction at the beginning. In the end, they will decide whether it is successful.
My Lords, my only elaboration is to encourage everyone to go to Wales. I can think of few things more enjoyable or educative. But there is a good deal of experience in dealing with violence against women and the provision of hostels and legal protection. It is that that a number of women from the Iraqi Parliament have studied.
My Lords, the representatives of a number of NGOs, especially those looking after the interests of women, have been visiting London. They have repeatedly met my right honourable friend Ann Clwyd—I think they did so earlier this week—and we will continue to encourage all such tangible links.
My Lords, we have made available 2 million copies of Why Weight Matters, a leaflet for the general public, and 1 million copies of Your Weight, Your Health, a self-help booklet to help people control their own weight. In May we provided practical information to help health professionals identify and treat overweight and obese patients. Guidance on weighing and measuring primary school children has been published. There will be a national obesity awareness campaign in January 2007.
My Lords, I thank the Minister for that Answer. We are all aware of the efforts the Government are making but one wonders whether the message is getting across, set against the £7 billion which obesity and overweight are now costing the country. As he and other noble Lords will know, in order to combat them individuals need to make enduring changes in their behaviour. Does the Minister know of any way in which the Government can get this message across, particularly the exercise component as well as the business of sensible eating?
My Lords, we have worked hard on this and there are a number of initiatives on physical exercise, including in schools. That is one of the key components of the follow-up to our Choosing Health White Paper. I remind the House and the noble Viscount what the House of Commons Health Select Committee said on this issue:
“The causes of obesity are diverse, complex and, in the main, underpinned by what are now entrenched societal norms”.
Solutions need to be long-term and sustainable. We are dealing with a complicated issue, which we will need to work on, with other people, over a long time.
My Lords, there is, and has been for some time, a worrying rise in obesity among children. The obesity rates in two to 10 year-olds in England have risen over the past 10 to 12 years from less than 10 per cent to more than 14 per cent. We know that this is going on across most of the developed world and is leading to problems in type 2 diabetes, as my noble friend said. We need to carry on working hard to try to get this issue under better control.
My Lords, does the Minister think that 2 million copies of Why Weight Matters are sufficient when, as the noble Viscount, Lord Falkland, said, the problem is costing the economy £7 billion? Surely the number of copies should be nearer to 20 million.
My Lords, several years ago, I entered by mistake the wrong Committee Room and found myself sitting at the top table of the all-party group on Obesity. Having entered the room and been given some strange looks, I felt it would be rude to leave. At the end of the meeting, we were all given pedometers and told that if we walked 10,000 steps per day, we would not be obese. May I inform the Minister that I have religiously worn my pedometer since then and that, so far, it has worked?
My Lords, does the Minister agree that one of the major problems for the Government in dealing with this matter is that three major departments are required to produce effective action? Have the Government given any thought to putting one of the departments in control to set targets for the other two, so that we do not waste so many resources and have a coherent strategy?
My Lords, I fully understand that the Minister shares my concern about the rising levels of childhood obesity. Does he share also my concern about the marketing of junk food to children? I agree that the Government have made great strides forward in the promotion of a better diet for children, particularly in schools, and I am sure that there is much more that we can do. What steps can the Government take to promote further the proposals in Choosing Health, particularly at local PCT level, where I am sure that many directors of public health are struggling to make them a priority?
My Lords, I reassure my noble friend that the Government remain committed to reviewing the success of measures undertaken on the balance of food and drink advertising and promotion to children in 2007. If these measures fail to produce change in the nature and balance of food promotion, we intend to take action through existing powers or new legislation to implement a clearly defined framework for regulating the promotion of food to children.
My Lords, the Department for International Development will contribute up to £12 million to a new temporary international mechanism which will help to meet Palestinian basic needs. In April, the UK gave £15 million to the UN Relief and Works Agency, which provides housing, education and health services to Palestinian refugees. Most of the terrible suffering is caused by the conflict between Israel and the Palestinians, so we take every opportunity to call on both sides to end the violence.
My Lords, I thank my noble friend for that response, but does she not agree with me that there will have to be a serious international effort to stop the violence if a humanitarian crisis is to be avoided? Does she agree that real pressure has to be brought to bear on the Palestinians by the international community to release the captured young Israeli soldier and to stop the Qasem rocket attacks on Israel, and that, at the same time, serious international pressure has to be brought to bear on the Israelis to restore the power supply to the Palestinians, which has been cut, and to facilitate vital international aid reaching Palestinian women and children to avoid real and continuing hardship?
My Lords, the Government would entirely agree with that position. This is an absolutely ghastly but intensely political situation which is having dire consequences for women and children in Gaza. They have little electricity, diminishing food supplies and a reduced supply of water. They are in need of humanitarian aid, but the aid cannot get through. The international community must strongly encourage both sides, as my noble friend suggests, to find a political and diplomatic solution. The EU and G8 have urged both sides to act with restraint, but we also urge our American friends to put pressure on the Israeli Government and our Arab friends to put pressure on the Palestinians to end the current violence.
My Lords, all three conditions set for contact with the democratically elected Hamas Government have now been breached by the Israelis—namely, a recognition of one’s neighbour, renunciation of violence and acceptance of existing agreements—most particularly by the recent deliberate attack on Gaza’s power supply. Will the Minister urgently consider changing our attitude towards Hamas Ministers, or at least those Hamas Ministers who have not so far been arrested by the Israelis, so that we can discuss with them ways in which the British Government can help to alleviate the misery and suffering of the Palestinian people?
My Lords, the Government will not negotiate or have discussions with Hamas Ministers until Hamas recognises the state of Israel, renounces violence and recognises the agreements that have already been made. Although the attacks being made by Israel are unutterably ghastly and we condemn them, we should not forget that Hamas wants to obliterate the state of Israel and has openly welcomed the attack by a suicide bomber. Both sides are to blame, and we have to bring both sides together.
My Lords, I am very glad to hear what the Minister has just said. Does she not agree that the attack on 25 May which resulted in the capture of Corporal Shalit was a premeditated project that had been going on for some three months and was directed by the Hamas people, who are not actually in Gaza? Therefore, they are trying to cut off their noses to spite their faces, because it happened right by a crucial crossing near the kibbutz. The lifelines that will help the Palestinians in Gaza in alleviating deprivation and hardship are going to be disrupted because of their own actions. The media here do not seem to understand that. Does the Minister agree?
My Lords, in respect of the capture of Corporal Shalit, I merely say that we have pressed the Palestinian president to do all that he can to achieve his release and we have called on those who are holding him to release him. However he was captured, in whatever circumstances, he should not be held hostage now. We want to ensure his secure release as soon as possible.
My Lords, no one could be unmoved by the plight of the Palestinians and their desperate need for humanitarian aid, but they are being treated like pawns in a game by Hamas terrorist groups, whose leadership lies not in Gaza but in Damascus, well away from the action, which makes it very difficult for the humanitarian aid to come in. What action are the Government taking to bring pressure to bear on the Syrian Government to expel that terrorist organisation?
My Lords, I was in Gaza last year and have been to the West Bank this year. Everything that the noble Baroness, Lady Symons, says, is absolutely true. The circumstances there cannot be described adequately. I put it to the Government that of course Hamas and the Palestinians are their own worst enemy and of course their violent attacks on civilian Israelis particularly are unacceptable. None the less, the underlying reality is that the continued settlement of the Occupied Territories—involving not just a few people but hundreds of thousands of Israelis—is a huge provocation to the Palestinians. It throws power into the hands of the extremist factions in Palestine and gives no hope whatever for the moderates such as President Abbas to have the sway they should. Using the words that the noble Lord, Lord Triesman, used earlier, what concrete steps will the Government take to bring real pressure to bear on the Israeli Government to realise what they are doing not only to the Palestinians but to their own chances of a long and peaceful preservation as an independent state?
My Lords, the Government’s view on the settlements is well known. We are doing everything possible to ensure that there is a contiguous Palestinian state. We are also working continually with our allies to press for a proper solution to this problem. However, the immediate problem is the current violence, and we have to work with our international partners to end it now.
My Lords, is this not really a humanitarian and not a political question? The noble Baroness mentioned UNRWA and what we are doing in the way of relief and short-term measures, but what about employment? Surely it is the most urgent priority that we create jobs and the training to back them up.
Yes, my Lords, employment is important, but at the moment I suggest that the security situation in the West Bank and Gaza is such that creating employment is extremely difficult. DfID and the Treasury are continuing work that began before the elections on the Chancellor of the Exchequer’s initiative to try to get the private sector to invest in Gaza, but in the current situation that is very difficult.
Finance (No. 2) Bill
Brought from the Commons; read a first time, and ordered to be printed.
Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2006
My Lords, I beg to move the Motion standing in the name of my noble friend Lady Amos on the Order Paper.
Moved, That the order be referred to a Grand Committee.—(Lord Rooker.)
On Question, Motion agreed to.
Police and Justice Bill
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 15 [Conditional cautions: types of condition]:
Page 9, leave out lines 13 and 14.
The noble Baroness said: In moving Amendment No. 93 I shall speak to Amendments Nos. 95 and 96. We now return to the issue that we broached briefly on Tuesday evening, a subject which the Government refer to as an extension of summary justice, whereas what is happening in practice is an extension of administrative punishment.
The Secretary of State has the power to increase by secondary legislation the maximum penalty that may be imposed when a conditional caution is applied. At present the maximum of community punishment is 20 hours. The maximum fine is either one-quarter of the amount of the maximum that could be imposed in the court—that is, a quarter of £5,000 for the greatest offence involved—or a maximum of £500, whichever of the two sums is the lower. That is the position which the Government have provided for in the Bill as drafted. My Amendment No. 93 would remove the Secretary of State’s power to change the 20 hours by order. Amendment No. 95 would remove the power to change the financial maximum by order, and Amendment No. 96 is consequential.
The noble and learned Lord will be aware of the concerns that have been expressed about the potential expansion of the power to impose punishment without the involvement of a court. The Magistrates’ Association has said this about the breadth of the powers currently proposed:
“We are very alarmed that the Secretary of State should be given powers to increase these potential penalties in the future. It opens up the possibility of more serious offences, rather than the extremely low level ones, being dealt with outside a court”.
When this matter was debated in another place the Minister sought to assure the Committee there that conditional cautions would not be used in the context of more serious crime. The Minister said:
“There is clear guidance from the Director of Public Prosecutions about the kind of offences that should be subject to conditional cautions. Because the conditions are set lower than the fines and punishments that magistrates courts can impose, it clearly is not appropriate to stray into that serious crime area”.—[Official Report, Commons Standing Committee D, 23/03/06; col. 167.]
But the Director of Public Prosecutions’ guidance on conditional cautions does not provide the assurance against punitive conditional cautions being used to deal with more serious offences. On the contrary, it states:
“there will be indictable only offences, [i.e. offences which are so serious they may only be tried in the Crown Court], in which a caution is appropriate because of the offence or the offender”.
That is quoted from the CPS website, section 3.
I note that Norman Brennan, the director of the Victims of Crime Trust, has described the idea of extending punitive conditional cautions as “nonsense”. He is quoted in the Daily Mail of 25 June as saying:
“What sort of deterrent is this? The Government talks about the need for common sense, and that is certainly what the public wants, but this is the opposite”.
It is important that we should listen to views expressed in those terms.
As the Minister in another place identified, the most realistic safeguard against the use of conditional cautions to deal with serious offences is a restriction upon the severity of the punitive condition that may be imposed. It is exactly for that reason that our amendment proposes that the Bill should prevent secondary legislation being used to allow more serious penalties being imposed and should contain an exhaustive list of conditions which may be included. I shall be interested to hear from the noble and learned Lord what the Government propose to do in response to the recommendation at paragraph 27 of the Delegated Powers and Regulatory Reform Committee’s report.
However, my concerns go far deeper than just whether or not the statutory instrument should be dealt with by the affirmative or negative resolution procedure. Here we are addressing the very real issue of the potential future expansion of administrative punishment by the decision of the Secretary of State, and especially being expanded by secondary legislation. We consider that this should be undertaken only when it is proved to be necessary, effective and fair. So far I am not persuaded that Clause 15 fulfils that requirement, hence the series of groups of amendments that we have tabled—this being the first. I beg to move.
I believe that this is the first Committee over which the noble Baroness the Lord Speaker has presided. If it is, I very much hope that she will enjoy the day as much as I am sure the rest of us will. I welcome her to her post.
Amendments Nos. 93 and 95 propose to remove the power of the Home Secretary to vary the maximum hours of attendance and the financial penalty that can be attached to a conditional caution. The reason for including those provisions is obvious: it is important to have a power to amend those maxima if circumstances demonstrate that they need to be changed over time. If there is not a power to deal with them in this way, it will be necessary to find a slot in primary legislation to make what would probably be small adjustments. The time of this House and of the other place to initiate primary legislation is always precious. I am therefore not able to support the amendments to remove the power to vary those, but I hope that I can none the less offer reassurance on Amendment No. 96, which proposes to make the power to vary the maximum financial penalty by order subject to parliamentary scrutiny by affirmative resolution.
The noble Baroness has rightly reminded the Committee that the Delegated Powers and Regulatory Reform Committee has recommended that the affirmative procedure should be used for both the power to change the maximum financial penalty and the power to amend the maximum number of hours of attendance, except where the change is solely to take account of changes in the value of money. We have considered the recommendation and propose to table an amendment on Report to meet those concerns and to take account of what the Delegated Powers and Regulatory Reform Committee said.
The noble Baroness has also made broader observations on the conditional cautioning powers. As I said when opening this debate in the previous sitting, it may be more economical of time if I address those remarks when we come to the clause stand part debate which I think is to follow shortly. At this point I shall only say that I do not for a moment accept the proposition that conditional cautions are nonsense, if that is indeed a correct attribution to the gentleman quoted in the newspaper to whom the noble Baroness referred. It certainly is not nonsense to have conditional cautions; they are working at the moment. The noble Baroness and I agree in principle that we need to see that what is being done is, as she says, necessary, effective and fair. I do not have any disagreement with any of those adjectives. It may transpire that we will disagree on how they apply in particular circumstances, but we do not disagree on the objective. For the time being, I invite the noble Baroness to withdraw her amendment.
First, in quoting how Mr Norman Brennan was quoted in the Daily Mail, I hope that I made it clear that he was referring to a specific change from what appears to be the current practice to the future one. His response that the changes were “nonsense” refers particularly to the imposition of punishment as a matter of conditional cautions rather than to the current conditions of reparation and rehabilitation. His major concerns arise because conditional cautions impose punishment in the future coupled with the fact that order-making powers make it possible for a much broader range of offences to be included. We will be able to develop the point in the debate on Clause 15 stand part.
The noble and learned Lord follows the line which I suspect any Government would take: “Do not take any order-making power away from us; we want flexibility. We do not want to take up the House’s time with primary legislation”. In most cases that is a proper argument, and in many cases a solution can be found by using the affirmative rather than negative resolution procedure. I am grateful for the noble and learned Lord’s indication that the Government intend to adopt the Delegated Powers and Regulatory Reform Committee’s recommendation that the affirmative procedure is to be preferred. If that is the case and the fine level—the monetary punishment—can be changed by order simply to reflect changes in the value of money, it is only sensible that it should not have to be changed through the affirmative procedure.
My broader concern is that substantial changes in how we mete out administrative punishment may not necessarily be properly carried out by an order-making process. Changes to the criminal justice system are occasionally so significant that they should not be relegated to secondary legislation. I will consider the matter very carefully over the summer months, once we have had the opportunity to debate these amendments and to discuss the matter more fully before Report. Although I am very concerned about the potential for order-making powers to be used to increase administrative punishment very widely, for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 9, line 26, at end insert-
“( ) Subject to subsection (3), the amount shall be commensurate with the financial resources of the offender.”
The noble Baroness said: We now approach the issue of conditional cautions from a more practical and different angle. The amendment would require that any fine imposed on a conditional caution should reflect the financial resources available to the offender. The danger is simply that, without this guarantee, the option of a conditional caution could in some circumstances be only for the rich—one law for the rich, to escape a court appearance—while the poor would be left without such a choice.
The Minister in another place sought to argue that the requirement that the suspect consents to the caution should deal with that concern. When we broached the first relevant group of amendments on Tuesday evening, the noble and learned Lord immediately referred to the fact that conditional cautions are imposed only with consent. We think that that can be a rather ingenuous argument because it misses the point. The person who cannot afford to pay a fine has no choice. They cannot accept a conditional caution. They have to go to court. By contrast, those with financial means will be able to buy their way out of a court appearance.
The CPS conditioning code of practice—I am sorry, I mean cautioning code of practice; perhaps it was a Freudian slip as the code is also conditioning—makes it abundantly clear that the process for agreeing to conditional cautions would not make any allowances for the ability to pay a fine. The noble and learned Lord looks puzzled. He may well be able to give a much better explanation of the code of practice than I can as it is in his immediate domain. But I quote from guidance issued by the Secretary of State under Sections 22 to 27 of the Criminal JusticeAct 2003. It states:
“There should not be any bargaining with the offender over the conditions: if he does not accept them in full, he should be prosecuted”.
The amendment simply seeks to address the risk of a two-tier system arising from the ability to impose fines on conditional cautions. It would require the offender’s financial resources to be taken into account when setting the level of the fine. That would recognise that not all offenders have the same financial resources and ability to pay a fine. I beg to move.
I was looking quizzically at the noble Baroness simply because I wanted to know what she was reading from. That is not intended in any sense as a dismissive remark. I was just not sure which document and section she had in mind. She said Section 22, but I am not sure that I can find it.
I apologise. I had just asked my Whip to clarify a different matter—not this one—which concerned me. No discourtesy was intended to the noble and learned Lord.
The note which I have is from a briefing given in another place. It is guidance issued by the Secretary of State under the Criminal Justice Act 2003, Sections 22 to 27, which was obtained from the Home Office website some while ago. I did not check the website myself but it was quoted in another place. Perhaps that will be of assistance.
The noble Baroness was very generous in what she said at the start. I intended no hint of criticism at all; I was just trying to find the section.
On the substance of the amendment, as I understood it, the noble Baroness made the point that the code of practice states that if the offender does not accept the conditions, then he will be prosecuted—not that there is anything in the code that for one moment suggests that you should not consider the offender’s resources in determining whether it would be appropriate to impose a condition. Indeed, as there is currently not a power to impose a fine, that issue does not arise.
Let me be very clear: there is absolutely no question of our wanting to create one law for the rich and one law for the poor. From this side of the Committee, if I may say so, we certainly would not want to do anything of the sort. Prosecutors will have to take into account a range of factors in determining what conditions it is appropriate to impose, and that will be applied to everyone. But the overriding requirement will be that the conditions are proportionate, achievable and appropriate to the offence and the offender. Plainly, if an unduly high financial penalty were proposed for an offender who was not in a position to meet it, that would mean that the condition was neither achievable nor appropriate. I would not want to see one aspect of those considerations singled out in the Bill when the overriding question should be whether the conditions overall are proportionate, achievable and appropriate to the offence and the offender. On that basis, I cannot accept the amendments.
However, I take the opportunity to underline that this is not something that an offender is compelled to accept—a point that we have to keep in mind throughout this debate. The noble Baroness said—and it is important to underline it—that the offender has a choice of whether or not to accept the conditions that are proposed. If the offender does not choose to accept those conditions, the matter will go to court, where the magistrates—we are talking about low-level offences and so it will be magistrates—will determine what penalty to propose. Of course, when magistrates propose penalties, they take all the circumstances into account. I know very well that magistrates look to an offender’s ability to pay in determining whether to impose a financial penalty and what it should be. So that will, in any event, condition the way that conditional cautions are offered as an alternative to prosecution.
Lest there be any misunderstanding outside this Committee—I am sure that there is none within it—perhaps I may underline again that the current guidance to which the noble Baroness referred does not deal with financial penalties, because it has been written before such additions are possible. There is absolutely no question of that guidance saying, “Please, if you find a rich person, let them off with a fine, but if it is a poor person, send them to court”. That is absolutely not the case and I want to stamp on that suggestion as hard as I possibly can.
Certainly I cannot imagine that the noble and learned Lord would do anything other than that. We are dealing with two matters here. The noble and learned Lord is absolutely right to say that any existing guidance cannot deal with levels of punishment because punishment is the novelty of this Bill—and, as the Government have already said, a significant development. But the difficulty is that, unless we know what guidance there is from the Government to deal with the proper and fair allocation of financial punishment, we will not know how fair and effective this new provision will be. So we are in a cart and horse situation here. My concern is that we will be asked to agree to a provision when we do not know how people's ability to pay will be taken into account.
Furthermore, if the Government come forward with their guidance in time for us to consider it and they say, “This is how the CPS is going to be told to apply the offer of a conditional caution. This is how it is going to look at the finances of the person, and it will reflect the ways in which a magistrates’ court operates and takes things into account”, they know full well that we are likely to come back and say, “Ah, but of course the Government are trying to supersede the role of a court”, and they could find themselves in a cleft stick situation. The noble and learned Lord shakes his head, but there is a fundamental question here of how far courts’ functions could be encroached upon.
Of course, I am delighted that the noble and learned Lord has made it clear that there will be guidance to ensure that the imposition of a fine will be proportionate. Underlying it all, the difficulty is that if there is not a proper way of judging what the financial penalty should be, we will still end up with a situation where a person has a real choice in the matter only if they can afford to pay. We can go no further forward on this rather narrow amendment at this stage, so I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 95 and 96 not moved.]
On Question, Whether Clause 15 shall stand part of the Bill?
Because of some of the contributions made by the noble and learned Lord, I can be briefer than I might otherwise be, although there are some issues that I need to raise, having given notice that I do not believe that Clause 15 should stand part of the Bill.
This is entirely a probing measure at this stage. My colleagues in another place made it clear that we did not oppose this clause going into the Bill. Our view was that we should see how the provisions in the clause were allowed to develop, consider whether it was effective and see whether the Government tried to expand its use too rapidly. Since these matters were discussed in another place, the Prime Minister announced that he intends to extend the use of administrative punishment substantially. That is a recent development. I should be grateful if the noble and learned Lord could put on the record exactly how that extension of administrative punishment will be achieved. Will what the Prime Minister announced require entirely new legislation? Will some or all of it be capable of being introduced via the primary and secondary legislation already in the Bill?
I am going to quote the noble and learned Lord from the Daily Mail, so he will know directly whether it has got it hopelessly wrong or is correct—who knows which? The Government may be prepared to agree with press quotations for a change; we shall live and learn. On 25 June the Daily Mail quoted the noble and learned Lord as saying that he wanted to have much greater use of conditional cautions, echoing the Prime Minister’s view of 23 June. The noble and learned Lord was quoted specifically as referring to punishments comprising,
“a maximum penalty of £500 or 20 hours’ community service”.
When I read that, I thought, “That is what the Bill says anyway”. Is the noble and learned Lord telling us that the Government have marvellous plans for the future and that they will use what is here for their future expansion of justice? The quotation may be wrong, or I may be misjudging him.
Will the noble and learned Lord make a clear statement about the consequences of accepting a conditional caution now under the Bill? Does it mean that a person will not have a criminal record for that offence? Will he give the Committee the figures on reoffending rates for those who have already accepted conditional cautions? It is essential to have such relevant information before we can properly consider whether the clause as drafted should stand part of the Bill.
If we removed Clause 15, we would keep the current legal position whereby the only conditions that could be applied to cautions would be those intended to facilitate the rehabilitation of the offender, or to ensure that the offender makes reparation for the offence. The debate goes to the heart of whether the Government would be right to press ahead with these plans for extending administrative punishment. I hope that the Government would never seek to portray those of us who are tabling amendments on this matter as trying to penalise victims and as being in favour of the suspected offender. Nothing is as simple as that in the world of offenders and offending.
I realise, of course, that the person accepting the caution will have admitted their guilt as part of the process. As an ex-magistrate, I would certainly be concerned about the possibility that some people will accept a caution even when they are not guilty rather than go to court, and that the guilty will accept a caution, recognising that with their previous experience of crime they might well receive a lower punishment than if they went to court. Where is the public interest in that? Concern has been expressed both outside and inside Parliament that the power to impose punitive cautions will effectively allow the police and the CPS to act as investigator, prosecutor and judge.
The Magistrates’ Association, for example, states that it considers it,
“contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary. A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities”.
The Government’s response has been to repeat their previous press release about,
“rebalancing the system in favour of the victim”.
Of course, I say here and now that I have as much concern for victims of crime as any government Minister. Having sat as a magistrate for many years until I came to this House 10 years ago, however, I am also aware of the importance of careful reflection before punishment is imposed. Punishment is sentencing; we cannot get around that. Careful reflection should be based on thorough judicial training. I would much prefer that which cases should be sentenced in court was decided through statute, rather than giving prosecutors discretionary powers to impose punishment. A clear line should be drawn between an alternative to prosecution, which is what conditional cautions are intended to be in the Criminal Justice Act 2003, and the imposition of a sentence, which we appear to be marching towards.
Existing fixed penalties and penalty notices for disorder, and simple conditional cautions, are alternatives to prosecution. That seems right. An alternative to prosecution can properly involve reparation or measures to help rehabilitation, provided the matter being dealt with is genuinely minor. A disposal imposing punishment that involves an element of discretion becomes a form of sentence. That is where we must discuss whether it should be reserved for the courts, and not given as a power to the prosecution.
Will the Minister confirm that offences for which a caution can be administered include: ABH; affray; criminal damage; possession of class A or B drugs, albeit a small quantity for personal use; having a bladed article in public; carrying an offensive weapon; burglary—non-commercial, non-residential—and theft? These are not necessarily just minor and low-level. If dealt with outside a court, there is no public knowledge of them. Where would the public accountability be? Judges and magistrates take an oath, receive training, operate in public and must announce the reasons for a sentence in open court, including any departure from sentencing guidelines. It is not the same for prosecutors. Where is their accountability?
The Government have quoted Lord Justice Auld as supporting conditional cautions. In his 2001 review of the criminal courts, he said there was,
“scope in England and Wales for the introduction of a more general, formalised and conditional cautioning system”.
However, he also said:
“Any such scheme should, save for the most minor offences, be the responsibility of the Crown Prosecution Service and subject to the approval of the court. Without the protection of the court’s approval, its use could be used or perceived as a ‘cop-out’ by the prosecution to avoid prosecuting cases that should be prosecuted, or of innocent”,
“being at risk of pressure to accept onerous compromises to avoid prosecution, or of the rich being able to buy their way out of prosecutions when the poor could not”.
The Select Committee on the Constitution also considers this provision a constitutional novelty. Of course, there is nothing wrong with novelty; it is quite right. One must refresh and renew all the time, provided one challenges those views with a bit of practicality. The committee goes on to make a telling point:
“It may be thought to sit uneasily with the principle of the rule of law, an element of which is that it is for independent courts—not the police or the prosecuting authorities—to punish criminal wrong-doing. This much has been enshrined in English constitutional law by the Bill of Rights 1689, which provides that ‘fines and forfeitures of particular persons before conviction are illegal and void’”.
Of course, I agree with the Select Committee: the clause sits too uneasily with the rule of law. As yet, the Government have not quite justified the inclusion of Clause 15 in the Bill.
I endorse the argument of the noble Baroness, Lady Anelay, which is the argument I made the previous day in Committee. I emphasise that it is fundamental to change cautions from an alternative to entering the criminal justice process to being non-punitive in their objective. I was a magistrate at one time, but am now much more involved with children and young people in the criminal justice process, and I feel that introducing this punitive element without an emphasis on reparation and rehabilitation risks putting children on to the slippery slope. We need to be positive in our approach to and dealings with young people, and to emphasise the value of reparation—making good and paying back for any admitted offence—and rehabilitation. We undermine or diminish that at our peril.
When I read Clause 15 I was saddened, for the reasons that have been given in this debate. In a week when the Government have pushed through a clear separation between the legislative and judicial aspects of society, it is odd to see the confusions being introduced when punishment is taken out of the realm of the courts alone. If we go back to the origin of public courts, in Old Testament days and no doubt in other societies, they were to take the administration of justice out of the private and individual sphere and into the public sphere. It is essential that the administration of justice is a publicly recognised, accountable and observed process. Obviously, in any society there will be minor issues on the edge of the justice system that can be dealt with by fixed penalty notices or the caution system that has grown up and has recently been extended. But to introduce the principle of punishment into the operation of the work of the police and the Crown Prosecution Service detracts from the principles of public justice that have been so much part of our society.
It has been mentioned that the Government want to rebalance the system in favour of the victim. I do not see how this does so because victims need publicly observed and accountable justice. In parenthesis, I add that it is a great mistake for victims to be paraded before the courts to influence judges in the sentences they pass. It is against the principles of justice—this is a different matter, but it bears on what we are saying—if in the future, if victims are particularly upset, a greater penalty will be imposed. That is against the principle that justice is administered on behalf of society as a whole, which is why we have public courts. I think that is what lies behind the reservations of the Magistrates’ Association.
I also fear that it is not good for the police to do this. In our society, the police need to have a clearly defined and upheld role. In recent years, I have been saddened to see the police engaging in public political debate more than has been healthy for them. By all means, they can have private views and express them to the Government, but it has been a mistake to over-politicise the police. At the other end, it would be a great mistake if the police started to be seen as junior magistrates, which is the danger in these proposals. I hope that even at this very late stage the Government will see that the best response to the large prison population, the cost of the justice system and the rise in anti-social behaviour is not this sort of approach, but other approaches that will get to the root of what is happening.
I tend to agree with the right reverend Prelate that justice should be objective and not moved in a subjective direction by over-consideration of victims’ points of view. I understand that the Question on whether to leave out this clause is intended to be probing. The clause has considerable merits because it enables a considerable extension of restorative justice, which I happen to believe in.
I understand that conditional cautions have been in use for some time; for example, by Thames Valley Police and possibly other police services around the country. In the case of Thames Valley, has the Crown Prosecution Service always been involved? It is important that, in using conditional cautions, delay is avoided and offenders who are thought to have committed relatively minor offences are dealt with as swiftly as possible.
The three points at the bottom of page 8 are of considerable importance. Punishing offenders is usually by means of a fine, but one should think of the offender making reparation to society in general as well as to victims of the offence. I think it goes without saying that all your Lordships would approve very strongly of using conditional cautions to promote the rehabilitation of the offender.
I am grateful to all who have taken part in this debate. It is important to debate these issues. I recognise that the noble Baroness’s Question is probing and therefore we will return to these issues, but it gives me an opportunity to set out one or two things.
The conditional caution scheme in place was established under the Criminal Justice Act 2003. It provided the police and the Crown Prosecution Service with a new disposal for dealing with low-level offenders who were prepared to admit to their offences and who, if prosecuted, would probably have received a nominal fine, been ordered to pay compensation or been given a conditional discharge at the magistrates’ court.
The noble Lord, Lord Hylton, is absolutely right that conditional cautioning is taking place in Thames Valley; it is one of the implementation areas. I can give him a bit more information about that outside the Chamber, if he would find it helpful. The noble Lord asked whether the CPS had always been involved. Absolutely, yes, because the scheme approved by this Chamber and by the other place was that conditional cautions would require the prosecution to decide the matter, obviously in co-operation, collaboration and discussion with the police.
That it is the prosecutor’s decision is very important, and, to some extent, it may meet the point raised by the right reverend Prelate. But it is the prosecutor and not the police deciding the conditional caution, although the latter have powers, to which I will return. The prosecutor must do that while recognising their professional responsibilities—they are sometimes described as a minister of justice—and being directly accountable to the courts for what they do. I have seen that from time to time, when judges or Benches of magistrates have called in the local prosecutor and asked, often in open court “What has been going on here?” That is perfectly proper in appropriate cases.
The very real benefits of conditional cautioning are: securing speedy redress for victims and enabling the offender—I emphasise, speedily—to tackle the factors that have contributed to his offending. I want to emphasise the benefit to the victim. Absolutely rightly, the right reverend Prelate asked what that meant for the victim. If I may say so, I am not convinced that he is right to say that victims always want to see things happen in court. Often, victims want something that deals with the situation speedily. I fear that at present, for all sorts of reasons—which we are trying to tackle, and we will come back to that issue—delays in court can be such that victims do not see a speedy response to the problem caused to them. On the contrary, it is dragged out: there may be adjournments; eventually the matter comes to court, at which stage the victim may be required to relive the experience and, at the end of it, to receive no more than could have been done under the conditional cautioning scheme a long time before.
I recently referred publicly to a case in Lancashire where an elderly lady who had been the victim of some violence to her property was pleased that the property had been fixed by the young man and that he had apologised to her in a way that made her feel that the problem was solved. It also clearly drove home to him the consequences of his offending behaviour, because he had to confront, as it were, and address the problem that he had caused to an actual person. Again, the noble Lord, Lord Hylton, is absolutely right in saying that restorative justice can be very valuable in that way, although it is obviously not appropriate in all cases.
The conditions attached to the caution can take specific account of the needs of the victim and therefore give the victim a voice without the need to go to court. The conditional caution code of practice, to which the noble Baroness referred in our previous debate, makes clear that victims’ views should be taken into consideration by prosecutors when determining whether a conditional caution is a suitable disposal. That is important and I am sure that we will want to keep that as part of the future use of conditional cautions.
What is a conditional caution? Here, I answer one of the questions put to me by the noble Baroness, Lady Anelay. It is not a court sentence. It is not a criminal conviction. It is an admission of guilt, which can form part of an offender's criminal record and may influence how they are dealt with in future proceedings, in the same way as can a simple caution. It can be quoted on a standard or enhanced disclosure issued by the Criminal Records Bureau and made known to a prospective employer—the Committee may think that that is right.
I return to the point about the relationship with the magistrates’ courts. I hope that all Members of the Committee will recognise that the rule of law is something which I and the whole of the Government take very seriously and regard as very important. We must recognise what it means operationally. At the moment, there is considerable pressure on magistrates’ courts. Cases can take a long time to get there, with many adjournments. The pressure on the magistrates’ courts will not lessen; it may get greater because, under the Criminal Justice Act, they will have increased sentencing powers once that part of the Act is brought into effect. That will increase the volume of work that we will ask them to do—because we trust them and recognise the very important role that they play in society and in the community. We want to say, “Let us remove from you straightforward, simple, low-level offences where there is a guilty plea. That will free up your time to deal with the more serious, complex and contested cases”.
Early implementation of the scheme in the past 14 months in a number of areas has highlighted the benefits of conditional cautions so far. However, the feedback that we have had from the police and the Crown Prosecution Service in the early implementation areas is that the benefits of the scheme are limited by the current restriction on the aims of the conditions that can be imposed, which must be reparative or rehabilitative. In particular, experience showed that the existing power in Section 22(3) did not give the flexibility needed to respond to offenders individually. Some offenders who should have got the benefits of the scheme were simply falling out of it for that reason. At the moment, conditions would need to be reparative, in which case the victim needs to be identifiable with a quantifiable loss and willing to accept reparation or rehabilitation, such as dealing—it is important that we should do this—with the underlying problems, such as drugs, alcohol and so forth.
A particular problem was that it was thought that we could not use the existing conditions to provide indirect reparation. The noble Lord, Lord Hylton, has given one instance of indirect reparation through paying something back to the community. I shall be even more specific. If an offender produced some graffiti, it would be reparative to require him to take off that graffiti, but you could not require him to do so if you could not identify the graffiti for which he was responsible or if it had already been cleaned up by the local authority or the building’s owner. Our interpretation of the Act is also that you could not require him to clean up other graffiti. Noble Lords might think that that is exactly the sort of situation in which you would want to consider being able to make a suitable offender see the consequences of his offending behaviour by doing something that is directly related to it.
Clause 15 would therefore enable the scheme to apply to a broader group of offenders. It would include cases where direct reparation is not possible because of practical factors such as the victim’s reluctance, the harm having already been remedied or the victim being the community at large. It would also include cases where the offender has acted out of character by committing the offence and has no discernible personal problems that contributed to the offending that demanded rehabilitation. Paying a financial penalty, undertaking unpaid work or attendance would be possible conditions. Yes, it is right to describe the measures as punitive, but they would also have a deterrent effect and an indirect reparative effect in the way that I have described.
Noble Lords have referred to what Lord Justice Auld said about financial penalty in his report, and we should bear it in mind that fines by prosecutors have been a part of the system in another part of this Kingdom—Scotland—for a long time. I understand that they are not only accepted but welcomed in the community as a way of diverting low-level offending away from the court without the need for a court appearance. So welcome are they that there are proposals to increase the limit for those fiscal fines. Other countries use a similar system, and although, as I have said, I am very strongly in favour of the rule of law, I do not believe that in Scotland or in those other countries, allowing these conditions to be imposed in any sense undermines the rule of law.
In that respect, I want to underline some very basic points. This does not apply except to an offender who admits his guilt. If someone contests his guilt, he goes to court. That will not change. If the prosecutor cannot decide whether he is guilty and cannot impose a caution, he goes to court. Secondly, he is under absolutely no obligation to accept the caution. Again, as I said, if he does not agree with the conditions and prefers to take his chances with the court, he is absolutely free to do so. Those are the key constitutional issues. The court will determine guilt where that is contested. Ultimately, the court is there to fix the penalty if the offender does not like the conditions proposed to him.
On the previous day in Committee, the noble Baroness asked about the degree of consultation. I regret the fact that the earlier stages of developing our plans did not involve as much consultation with the groups that she identified as it should have done. But consultation has been taking place. My noble and learned friend Lord Falconer, the Lord Chancellor, and I have discussed these conditions with magistrates, judges and officials from the Office for Criminal Justice Reform. The office of my noble and learned friend Lord Falconer and my office have held discussions with representatives of the Magistrates’ Association and members of the senior judiciary. There has been at least one consultation with the Criminal Justice Council on which Victim Support is represented. At a local level, areas have engaged with victims groups and voluntary organisations. I am very happy, as is my noble and learned friend, to continue all such discussions. It is important that we debate these things.
From time to time, reports appear in newspapers suggesting different things to those which the Government propose. The noble Baroness, Lady Anelay, referred to a report in the Daily Mail, which rather remarkably quoted me as referring to the present proposals as if they were something else. She may not be entirely surprised to hear that I have not spoken to the newspaper. I think that it was quoting from a speech about this Bill rather than something else, but there we are. However, it is true—we will have to come back to this—that other things have been said about how we want to develop the criminal justice system.
The scheme overall is governed by the Conditional Cautioning: Code of Practice, which has a statutory basis in the Act. That would be the same if the conditional cautions scheme is extended; that is, the same requirement for the Conditional Cautioning: Code of Practice will result. That is a matter therefore to which we will have to come back. On the question of to which offences it will apply, the overriding limit will be whether the conditions which are available are appropriate to the form of offending. If offences are of such a degree of seriousness that it is not appropriate for them to be dealt with by compensation, a short attendance, reparation or rehabilitation, they certainly will not be dealt with in it. The noble Baroness, Lady Anelay, read from a list in the existing code of practice guidance issued by the DPP, which gives the constituency of offences that this could be used for. That obviously is not at all the same question as whether in a given case they should be used. There can be considerable levels of difference in the sort of offences and the offenders who commit them. She is right that one has to look at the offender.
In conclusion, first, we already accept that in certain circumstances penalties are imposed outside the courts. The police do it in relation to fixed penalty notices in a number of areas. Members of the Committee might agree with me that to have an additional safeguard that the prosecutor imposes is beneficial and avoids just one mind looking at a case. Secondly, the experience so far has been that victims have found the conditional cautioning scheme helpful because they have been involved in it, they have had a voice and it has been much speedier. I know of one case where £1,000 compensation was paid within a week—or something of that sort—to a victim. I am afraid that that certainly would not happen under the court system as it presently operates. I hope that the Committee will see the benefits of conditional cautioning and will agree that Clause 15 should stand part.
Before the noble and learned Lord sits down, I thank him for his earlier explanation. I accept that if the Crown Prosecution Service is seen as the driver of the system, it protects the police from being seen as junior magistrates, although maintaining that distinction will be very important. However, does the Minister share with me a sense that the term “administrative punishment”, which is now being widely used, does not sound quite right? It gives the impression that it is the Government who are giving administrative punishment. I wonder whether any punishment that takes place other than through the courts should be seen somehow as on behalf of the courts. It is an essential principle that the courts in a democracy exercise the right to judgment and punishment. Perhaps the expression “administrative punishment”, which rolls off the lips fairly easily, is rather unfortunate.
The noble Lord, Lord Hylton, is right. Of course, there is the possibility of recourse to a court, as there would be here. If you do not accept a fixed penalty notice put to you by the police, for whatever reason, you can go to court. If you do not like the conditional cautions being offered to you by a prosecutor, you can go to court. The court remains at the apex of this system and in overall control of it.
I certainly take on board what the right reverend Prelate said about the term “administrative punishment” and I will consider it. It is not a term that I use. People say to me that “conditional caution” is not exactly a catchy phrase either, so perhaps we need to think generally about them.
I am grateful to all noble Lords who took part in that debate, which goes to the core of the kind of punishment that should be meted out outside of a court. The whole debate has to go on the balance between two competing calls on the system. The right reverend Prelate the Bishop of Chester clearly enunciated the fact that victims need a publicly observed objective process in the criminal justice system. That is absolutely vital. On the other end of the scale, the noble Lord, Lord Hylton, was right to point out that we need a swift and fair system of restorative justice, which is where I agree wholeheartedly with the noble and learned Lord. We want a criminal justice system that can be responsive in a fair and effective way. We do not want hold-ups in the court system. But, of course, as magistrates say very clearly, they do not feel that they are causing the difficulties and that there are ways of dealing with the administration of justice which would make the system work more quickly. We agree with the Government that the existing system of conditional caution should be given a fair run.
Although the noble and learned Lord was very courteous in addressing most of my questions, there was one outstanding which I will not pursue today, although it may be that he is able to give the answer. It concerned the reoffending rate on existing conditional cautions. I would be perfectly happy if he would prefer to write.
I apologise for not dealing with that question. The information that I have is simply that the scheme has been going for an insufficient length of time to give a meaningful answer to that question. But if I can improve on that, I will write to the noble Baroness.
I am grateful to the noble and learned Lord. Although I very rarely disagree with the right reverend Prelate, I have to on this occasion on the issue of what these punishments are called. I understand why he does not like the term “administrative punishment”. I use it because I want to distinguish this new provision in the Bill from the rather glib phrase that we see in the press about the extension of summary justice. This is not summary justice, which can be done through the courts and always has been. That is why I seek a distinguishing description. I would be happy to find something else: if the right reverend Prelate can help me—
We are getting closer together again, which reassures me. I like to be on the right side occasionally, if not all the time. So we all need to look at a way of describing it. Whatever it is, it has to work for the victim and the offender, who, as the noble and learned Lord has said, has admitted his or her offence. I am particularly grateful to him for putting clearly on the record the position of the person who has admitted the offence with regard to how it may or may not constitute a matter that goes on to their record, particularly with reference to the Criminal Records Bureau check. That answer has not been given in another place.
Overall, we are trying to avoid delay. To that end I shall not delay the Committee any longer on this matter. Considerable concerns remain and the fact that the noble and learned Lord has seen satisfaction with this in Scotland and other countries does not necessarily mean that we would be willing to go down that route in this country. The Government are fond of saying that Scotland is different—“Devolution gives us a joyous difference”. Perhaps we should look for a joyous difference and improvement here too, but for now I shall certainly not continue to resist this clause standing part of the Bill.
Clause 15 agreed to.
Clause 16 [Arrest for failing to comply with conditional caution]:
Page 10, line 12, leave out “A person arrested under this section must” and insert “If a relevant prosecutor determines that a person arrested under this section has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, the person arrested may”
The noble Baroness said: Noble Lords will be pleased to learn that fairly shortly they will hear voices other than mine. In moving Amendment No. 97 I shall speak also to Amendments Nos. 100 and 102 tabled in my name, and refer briefly to Amendment No. 98 to which I have added my name in support. My amendments are probing in nature. Clause 16 gives police constables a power of arrest without warrant where an offender is suspected of having breached the conditions of a conditional caution without reasonable excuse. The Government argue that this will speed up the prosecution of the original offence.
The clause will insert new Section 24A into Part 3 of the Criminal Justice Act 2003, and I ask that Amendments Nos. 97 and 102 should be read together. They would clarify that the various options specified in Section 24A(2)(a) to (c) would be available only where a prosecutor has decided that a condition of the caution has been breached without reasonable excuse. It would make it possible for the person to be released on bail before it has been determined whether that person has breached the conditions of their caution without reasonable excuse. New Section 24A(2) requires that a person who has been arrested for a suspected breach of the conditions of their caution should be “charged with the offence” for which they were originally arrested, or released on bail but without charge, or released without charge and without bail, but with the possibility of the conditional caution being varied. I do not have a problem with the proposal that the Section 24 powers should be used where it has been established that there has been a breach of the conditions of caution. However, Section 24 would not limit the use of the powers in that way; it would enable them to be exercised purely by virtue of the fact that the person has been arrested on suspicion of breaching a caution. Is that the Government’s real intention?
Where a person accepts a conditional caution instead of being prosecuted for an offence, they of course effectively enter into a contract with the state on the basis, “If I, the offender, comply with these conditions, you, the state, will not prosecute me”. Surely it would not be right for the state then to breach that agreement by charging the person with the original offence unless it had first established that the person had indeed breached the conditions of the caution and thereby had broken their side of the agreement. Paragraph 176 of the Explanatory Notes acknowledges that this is not the intention:
“If the person has failed to comply without a reasonable excuse, he can then be charged with the original offence in respect of which the conditional caution was given”.
The same argument could logically apply in relation to the proposal to vary the conditions of a caution to change unilaterally the terms of the deal between the state and the offender without any reason. My amendment simply clarifies the position. In addition, I recognise that of course it may be necessary to release someone on bail while it is being decided whether they have breached the conditional caution. Amendment No. 102 would enable that to happen.
Amendment No. 100 would delete subsection (6) giving the police the power to keep the person in police detention while the investigation is under way about the suspected breach of the caution. The amendment has been tabled simply to probe how long the Government anticipate it would be reasonable for the police to keep a person in detention for this purpose. I realise, of course, that the noble and learned Lord is likely to give a full response to this point when replying to Amendment No. 99 tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris of Richmond. That amendment seeks to put a 12-hour limit on the length of time for which a person arrested on suspicion of breaching a caution could be held in custody.
I note that Hazel Blears stated on 23 March that the Government,
“envisage a person as being held for a relatively short period”.—(Official Report, Commons Standing Committee D, 23/3/06; col. 174.]
So we have to ask the age-old question: how short is short? I would be grateful if the noble and learned Lord could address the specific point raised by the Magistrates’ Association on this matter: what safeguards will be in place regarding the operation of that power by the police? Why would it be right for the police to have greater powers in relation to such cases than magistrates have in relation to breaches of court orders? I beg to move
I shall speak to Amendments Nos. 98 and 99 which have been tabled in my name and that of my noble friend Lord Dholakia. He is unable to be with us today, having gone to Scotland to be with my noble friend Lord Steel while he receives his honour. Clause 16(4) states that:
“Where a person is released under subsection (2)(b), the custody officer must inform him that he is being released to enable a decision to be made as to whether he should be charged with the offence in question”.
Our amendment would insert at the end:
“A person who is released following an arrest under this section shall not be re-arrested without warrant for the same suspected failure to comply with a condition attached to a conditional caution”.
I turn now to Amendment No. 99. As the noble Baroness, Lady Anelay of St Johns, has so rightly said, this amendment would put a 12-hour limit on the length of time for which a person arrested on the suspicion that he has breached a conditional caution could be held in custody. It would also prevent a person being re-arrested for the same suspected breach of a condition.
As well as giving the police powers to arrest someone suspected of breaching a conditional caution, the Bill would allow them to detain the person indefinitely until they felt able to decide whether to charge or release. It must be remembered that the only purpose of this detention is to ascertain whether a condition has been breached and thereafter to decide whether to charge the person with the original offence or to release them, whether or not on bail. Given the restricted purpose for the detention and the Government’s confidence that conditional cautions are to be used only for low-level offences, it would be entirely disproportionate to give the police an indefinite power of detention in such cases. The Magistrates’ Association has gone as far as to describe this as,
“a draconian power in relation to a matter that has not been before the judiciary”.
By contrast, strict time limits are rightly imposed on the powers of pre-charge detention where a person is suspected of having committed an offence. In such cases the suspect can be detained only for up to24 hours initially, with extensions taking total detention up to four days available by application to the courts. Within this time the police are required to gather sufficient evidence to decide whether to charge the person. That is a far harder task than deciding whether a condition has been breached. It would be indefensible to give the police the power to keep someone in custody for longer on suspicion of breach of a caution condition than on suspicion of a criminal offence. If the action which breached the caution was itself a crime, the person could be arrested for the crime and the police would not need to use the power under this clause.
In Committee in another place, the right honourable Hazel Blears explained:
“The provision is designed to enable a quick, on-the-spot inquiry to take place”.
Despite accepting that inquiries will usually be quick, she rejected the proposal to include a time limit on the face of the Bill, arguing that,
“In the vast majority of cases, an hour or a couple of hours will be sufficient, but I cannot say categorically that it will be so; it will depend on the circumstances of the case”.
The amendment acknowledges that some flexibility is required and that it would be unworkable to impose a time limit of one or two hours. However, given the simple question the police are required to answer during the period of detention, these Benches consider that 12 hours should be more than enough to deal with a non-typical case. Without such a time limit, there is a real risk that these powers will be abused and there would be no incentive for the police to ensure that inquiries into the suspected breach are conducted as quickly as possible.
In response to the call for a time limit to be imposed on the power of detention, again Hazel Blears explained that:
“It would be a ridiculous state of affairs if the police had to release someone automatically and then rearrest them”.—[Official Report, Commons Standing Committee D, 23/3/06; col. 174.]
We agree. After the time limit for detention has expired, the police should not be able to re-arrest a person for the same suspected breach of a condition to enable the clock to start afresh. This would completely undermine the purpose of imposing a time limit and it is for this reason that our amendment would prevent re-arrest for the same alleged breach.
This series of amendments relates to Clause 16. I do not think there is any underlying disagreement about the need for Clause 16, which provides a quicker and more flexible response to suspected breaches of a conditional caution by providing powers of arrest and detention, with all the usual safeguards under the Police and Criminal Evidence Act.
First, let me make it clear that it is for the prosecutor, not the police, to decide whether an offender has breached the conditional caution and, if so, whether to charge the offender with the original offence. That is already in the provisions of the Criminal Justice Act 2003. That is essential background because Clause 16, as drafted, provides that various options are available once an offender has been brought into custody for a suspected breach. These are: either to charge with the offence in question—that is to say, the original offence; or, secondly, to be released by the police on bail, without charge, where further investigations are needed to determine non-compliance; or, thirdly, to be released without charge and not on bail where the prosecutor determines that there has been no breach of the conditions and, therefore, that the conditional caution should continue to run its course.
Amendment No. 97, I believe, would have a negative impact for the offender—I recognise that that is not the reason the noble Baroness has brought it forward—because if the decision-making process is restricted to the prosecutor alone, the person could not be released, with or without bail, without the agreement of the prosecutor. That could mean that the person is detained longer than required while awaiting the availability of a prosecutor. So if someone is arrested at the weekend, in the evening or at a time when a prosecutor is not available, the police would not, for example, have the opportunity of exercising the power in subsection (2)(b) for the person to be,
“released without charge and on bail to enable the decision to be made as to whether he should be charged with the offence”.
I am sure that is not what the noble Baroness had in mind. It would be contrary to what we have in mind in subsection (7) that the case must be dealt with,
“as soon as practicable after the person arrested arrives at the police station”.
There would be an additional problem in involving the prosecutor because, under the PACE provisions, it is not for prosecutors to make decisions about bail; these are made by the custody sergeant. It would be difficult, disproportionate and have a number of implications now to put upon a prosecutor a responsibility for determining bail and conditions of bail, but only for conditional cautions and not for any other offences. So I cannot support Amendment No. 97.
Let me give an example. It might be absolutely plain when the person arrives at the police station that the conditions have been complied with. He may have evidence with him—a letter, perhaps—proving it. Under the noble Baroness’s amendment, the police still could not release that person until a prosecutor had been found to take that decision. I am sure that is not what she intends.
Amendment No. 98 seeks to prevent the police re-arresting someone for the same suspected breach of a conditional caution without application to the court for a warrant of arrest, and the noble Baroness, Lady Harris of Richmond, explained the reasoning behind that. The background to this, again, is that Clause 16 is there to give the police a new power to arrest someone for a suspected breach to enable quick and effective enforcement of conditional cautions. If one required an application to the court for an arrest warrant, that would undermine that purpose by adding an additional stage and, therefore, delaying the enforcement process.
As the noble Baroness eloquently explained, underlying this is a concern about the circumstances in which it would be appropriate to re-arrest. I can certainly imagine circumstances where it would be appropriate to re-arrest. For example, an offender may on the first occasion give a false explanation for the suspected breach which is accepted in good faith by the police officer, who then releases him. If it came to light subsequently that it was a false explanation, then it would be right, I would suggest, that the police should be able quickly to re-arrest him to get to the truth of the matter.
Amendment No. 100 seeks wholesale removal of the police power to arrest and detain an offender for suspected breach. I have explained why we think it is important that there should be a power for the police to be able to respond quickly. But we certainly do not want offenders to be kept unduly in police detention while the case is being dealt with, so let me touch on the points about delay made by both noble Baronesses. Clause 16(7) makes it clear that there is a particular duty on the police to act expeditiously; and there is an additional requirement under subsection (6) that any detention to allow further investigation is strictly necessary, a point to which the noble Baroness, Lady Harris, drew attention. The power of detention is to enable a decision to be taken on whether there has been a breach and, if so, whether to charge the offender with the original offence.
In practice, it may often be relatively straightforward to determine whether there has been a breach and, if there has been, whether the reason given by the offender for non-compliance is a reasonable excuse. But there may be occasions when it is necessary to detain for a short time in order to resolve the matter quickly. A telephone call might establish that the offender has committed the breach, in which case it would make no sense for the police to release the offender while seeking to confirm whether there has been a breach and, if there has been, then having to go to arrest him and bring him back to the police station to charge him with the original offence.
What, therefore, about the time? AmendmentNo. 99 proposes a time limit of 12 hours. I certainly do not want to see a person who has committed a low level offence—which is what we are talking about in this Bill—and is suspected of breaching a conditional caution being unduly or disproportionately detained by the police. There are two very important measures in the Bill which would prevent that. First, subsection (7), to which I have already drawn attention, will insert the new provision, specifically, that subsection (2) must be complied with as soon as practicable after the person arrested arrives at the police station. So there is an important and clear duty on the police to deal with the matter as soon as they practicably can.
Secondly, Clause 16 makes it clear that the detention time restrictions in the Police and Criminal Evidence Act apply to the powers of arrest for a suspected breach. Both noble Baronesses referred to existing time limits. Those time limits are not removed for this power of detention. There is therefore no need to insert an additional time limit; indeed, it is highly unlikely that the time limits under PACE would be reached. There is a worry, however, that if one imposes a time limit, even of 12 hours, there would be no room to manoeuvre to take account of specific circumstances.
The offender might turn up in a drunken condition, which happens at quite a lot of police stations. It may be necessary for him to sober up before the questions can be put and the matter cleared up. It happens, too, from time to time that a fight breaks out in the custody suite which diverts police resources. There is a risk, therefore, that if one imposes an arbitrary time limit, it may not be possible to deal with those circumstances, although, I repeat, everything has to be subject to the requirement in subsection (7) that the matter must be dealt with as soon as practicable after the person arrives.
Amendment No. 102 seeks to make it clear that if after arrest for a suspected non-compliance with a conditional caution there is a need to conduct further investigation to determine whether there has been a breach, the offender may be released on bail rather than detained in custody while those investigations take place. It is absolutely our intention that that should be possible and the Bill already makes it sufficiently clear. One of the options in new Section 24A(2) is that someone can be released on bail without charge pending investigations to decide whether he should be charged for the original offence.
Fundamentally, we hope that these investigations will not take long. We do not want to see conditional-caution offenders spending undue periods of time in police stations, but the power to arrest and detain is necessary for the reasons that I have given. I hope that, on consideration, the Committee will be satisfied that there are sufficient safeguards in the Bill to ensure that the potential for abuse to which the noble Baroness, Lady Harris, referred does not exist.
I am grateful to the noble and learned Lord. I agree with him entirely that a swift response to any breach of conditional cautions is important. I strongly support anything that achieves that. Before there was such a thing as conditional cautions, great concern was felt about the difficulty in bringing breaches before a magistrates’ court in a timely manner. It is right that one should try to proceed as quickly as possible, otherwise one loses the whole benefit of the conditional cautioning system, which we fundamentally support.
The noble and learned Lord was obviously right to point out, as Ministers do, that Amendment No. 97 is technically defective and would have exactly the opposite effect to that which I want, although I made it clear that it was a probing amendment. The noble and learned Lord was right, but he knows why I tabled it.
I am grateful to the noble and learned Lord for explaining why provisions are in the Bill to prevent re-arrest for capricious reasons. I thought that Amendment No. 98 was well founded, but his assurances and explanations have satisfied me.
Finally, I certainly agree with the noble and learned Lord’s response on time limits for holding persons in custody for the suspected breach of conditional cautions. I appreciate that there are provisions in PACE that one would hope would ensure that the time one could be kept in custody would be as short as reasonable within the individual circumstances. The noble and learned Lord gave the common example of somebody being drunk on arrest or of there being fights in the police station and of the police’s resources being rather stretched. I can certainly think of other circumstances. It might well be that the person is a vulnerable adult; it could well be that the person involved needed an interpreter. I could happily be an advocate against my own position in that respect.
I have put these matters on the record in some detail at this stage because I do not foresee any need to return to Clause 16 matters on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 98 to 100 not moved.]
[Amendment No. 101 had been withdrawn from the Marshalled List.]
[Amendment No. 102 not moved.]
Clause 16 agreed to.
Clause 17 [Local authority scrutiny of crime and disorder matters]:
Page 13, line 9, at end insert-
“( ) Every crime and disorder committee shall include at least one member nominated by the police authority responsible for maintaining the police force in the area of the local authority, who shall have the same entitlement to vote as any other member of that committee.”
The noble Baroness said: In moving the amendment, I shall speak also to AmendmentsNos. 114, 119, 120 and 123 to 126, all of which stand in my name. The amendments fall into two areas; first, those which would ensure that police authorities are represented on the crime and disorder committees proposed in Clause 17—Amendments Nos. 103 and 114 relate to that; secondly, those which would allow flexibility to the Secretary of State in being able to add new partners to the list of responsible authorities under the Crime and Disorder Act, but not to remove existing responsible authorities though secondary legislation. Amendments Nos. 119, 120 and 123 to 126 relate to that.
The Bill as currently drafted would enable crime and disorder committees of local authorities to co-opt members from external bodies in accordance with regulations issued by the Secretary of State. I am sure that the Minister will reassure me that the Government have every intention of including police authorities among this list of co-optees. I do not wish to appear churlish when I say that this is a matter of such significance for the local accountability of the police and the maintenance of the tripartite system that it should be enshrined within primary legislation.
We have already had much debate when discussing earlier clauses of the Bill on the importance of the tripartite system and the perception that there are elements of the Bill which would erode both this and the political independence of the police. As I have already made clear, I share some, though by no means all, of these concerns. However, it is important to make it crystal clear in the Bill that the police are accountable to police authorities by mandating that police authorities should be represented on the crime and disorder committees. Otherwise, it is but a small step between the committees, which are local authority bodies, holding the CDRP as a whole to account, which I know is the intention of the Bill, and their attempting to hold the component partners of the CDRP to account, particularly basic command unit commanders, which I know is not the intention of the Bill. If this were to happen, it could put conflicting demands on already hard pressed local police, undermine the role of the police authority in setting local policing priorities, interfere with the managerial accountability between BCU commanders and chief officers, and leave local authorities open to charges, whether real or imagined, of political interference with the police. That is what I am seeking to avoid.
I turn to the second group of amendments. The Bill currently proposes that the Secretary of State will be able to change by order the responsible authorities defined in the Crime and Disorder Act. These are the authorities on which particular responsibilities in public accountability are placed to ensure that local strategies are in place to deal with crime and disorder issues.
I can well understand the desire of the Government to have some flexibility in designating responsible authorities. I well remember that police authorities were a belated addition to this list, which required primary legislation in the form of the Police Reform Act 2002. Adding new responsible authorities is one thing, but taking them away, given the local public accountability that goes with this role, is another. Public accountability is vital and is the kind of key principle that should be in primary legislation. Does my noble friend envisage circumstances in which the Secretary of State might wish to remove a partner from the list of responsible authorities?
My amendments would allow the Secretary of State the flexibility to add new partners or successor bodies to the list of responsible authorities but would ensure that removing partners from it would require primary legislation. I am aware that consequential amendments may be required by the two broad amendments that I have put forward in this group. I beg to move.
I shall speak to Amendments Nos. 117, 118 and 122 in this group, which are in my name. In doing so, I intend to be as helpful as possible to the Government. What I am trying to do in these amendments is, first, to put into a form that works what I understand to be their intention and, secondly, to clear up a mess that I believe is left from some ill thought-out provisions in the 2002 Act. The purpose of these amendments is to create a body in each local area that would be visible, transparent and accountable to the public for local community safety strategies. I believe that that is the Government’s intention as a result of the review of the Crime and Disorder Act that they have been conducting. This part of the Bill is intended to put that review into effect.
The Government’s intention is to create such a body by splitting existing local crime and disorder reduction partnerships into strategic and delivery levels, but the Bill as currently drafted does not express that very clearly. It deals with the split by inserting a provision in Schedule 7 to allow different functions to be conferred on different responsible authorities; but as the detail is to be contained in secondary guidance, it does not clearly explain what is intended and may lead to confusion. I am therefore trying to assist my noble friend by putting forward an amendment which I hope achieves greater clarity.
The amendment would make it plain that the responsible authorities in the Crime and Disorder Act are restricted to the local council and the local police commander as these are the individuals or agencies that are by and large responsible for delivery. In effect, that reverts to the previous provisions of the 1998 Act. At the same time, it would create a group of partners that I have called the “strategic safety partnership”, for want of a better name. The name is not of course sacrosanct, and I am happy to call it anything else that noble Lords might think appropriate. That group of partners would include members—not officers—of the local council or councils for the area, the police authority, the fire authority and a non-executive director of the primary care trust in England or the health authority in Wales. So in essence, rather than having responsible authorities—the primary care trusts, the fire authority, Uncle Tom Cobbleigh and all—as we have at the moment, which diffuses and makes less clear who is directly responsible for taking action, the amendment clarifies that arrangement and ensures that those other bodies are very much seen as strategic partners who are involved in the process.
This strategic safety partnership would become the strategic level of the CDRP, responsible for setting local community safety strategies and plans and monitoring the performance of the elements of the CDRP which are responsible for delivery. That would be primarily the local council and local police commander. I have been specific that the representatives of the partners concerned should be members or non-executive directors, because the strategic safety partnership will be accountable to the public for local community safety issues. I do not believe that officers of the constituent bodies can be held accountable in the same way as their first duty is to their employer, not to the public. This is an important principle which it is intended will also help to improve the responsiveness of CDRPs.
No doubt my noble friend will reassure me that this vision of public accountability is exactly what the Government intend to address in the secondary regulations for which Schedule 7 provides. However, I believe that this important principle should be made plain on the face of the Bill. My own view, now that I have read some of the Government’s proposals, is that there is a lack of clarity as to how that is to work, who is to be responsible and who is to be part of the strategic direction.
I have personally believed for a long time that “responsible authorities” should be restricted to local councils and local police commanders, although I know that some of my noble colleagues may disagree with me on that. It was groundbreaking enough in the 1998 Act to place a joint responsibility on two statutory authorities and expect them to work together—especially when, in some instances, they did not have a great deal of experience of doing so. To try to place a joint responsibility on four, five or six statutory authorities is not workable. If you make it clear that the local council chief executive and police commanders are the responsible officials for delivering the crime and disorder reduction partnership and that the strategy is agreed by the broader group of partners, that is the sensible way forward.
Many of the functions currently conferred on responsible authorities are really appropriate only to bodies actually involved in delivering community safety, while the responsibility for ensuring that community safety strategies are adequately reflected in the plans of the partner organisations is clearly more appropriately a responsibility of the partners to the strategic safety partnership. I accept that, as a result, there may be many consequential amendments to be made to the Crime and Disorder Act, but I am sure that Home Office officials will be delighted to help my noble friend in finding them. But clarity about the split in functions is necessary and has to be achieved and the importance of public accountability for community safety should be made clear. I believe that it is worth getting this right from the start by amending the Bill in this way.
I support all these amendments and will speak in particular to Amendment No. 103, Amendment No. 114 and Amendment No. 121.
It is absolutely right that every crime and disorder committee shall include at least one member nominated by the police authority responsible in that area for maintaining the police force in the area of the local authority. I very much support Amendment No. 103.
On Amendment No. 114, police authorities must have a right to sit on the committees scrutinising crime and disorder issues as they are the bodies that hold the police to account on behalf of local communities, as the noble Baroness, Lady Henig, said. The Government have said that that will be prescribed in secondary legislation. We believe that it needs to be guaranteed in primary legislation because of the importance of the function and the possibility that the committees could be used by local authorities to hold the police, particularly BCU commanders, rather than the CDRP as a whole, to account. That could put conflicting demands on local police, undermine the role of the police authority in setting local priorities and interfere with the managerial accountability between BCU commanders and chief officers.
Amendment No. 121 would remove the ability of the Secretary of State to confer by regulations particular functions on particular responsible authorities in relation to the formulation and implementation of CDRP strategies. The whole point of the CDRP is that it has a partnership approach that engages all the responsible authorities in a joint exercise to address community safety issues. The noble Lord, Lord Harris, put that clearly in context. To confer particular functions on one or two of the partners would go against the partnership principle. Not only would it open up the possibility of a hierarchy of more or less important responsible authorities, which would mitigate against the concept of partnership, but it risks detracting from the original purpose for which these partnerships were brought together—better to join up community safety issues.
In addition, we have concerns that if the paragraph gives local authorities a primary role, it will be used to try to hold the police to account rather than the partnership as a whole. The police are accountable to police authorities and we would not wish to see that eroded or have conflicting or inappropriate priorities foisted by one partner on other partners because they have not been given a particular responsibility for formulating strategy, although they may have a responsibility for implementing it.
Provisions that allow the Secretary of State to confer functions on a committee, or on a particular member or officer of the responsible authorities, are set out later in the same clause. This should be sufficient to ensure that the CDRP-plus arrangements can be put in place, allowing key strategic decisions to be made by lead members of the responsible authorities to ensure better accountability to the public.
The aim behind these various amendments, as noble Lords have pointed out, is predominantly to raise concerns from the Association of Police Authorities regarding how the role of local authority scrutiny committees with responsibility to look at the crime and disorder reduction partnerships will interface with other responsible authorities, such as the police and the BCUs. The comments on this from the noble Lord, Lord Harris of Haringey, are very pertinent.
The amendments also address the age-old argument about placing detail in the Bill rather than in secondary legislation, to which the noble Baroness, Lady Harris, has already referred, as has the noble Lord, Lord Harris of Haringey, in another context in this amendment. That is an argument we have made throughout Part 1.
I do not want to reiterate all the points so carefully articulated by your Lordships, but I would like to speak in support of Amendment No. 103, to which my noble friend Lady Anelay has added her name. I agree with the noble Baroness, Lady Harris of Richmond: I do not see why the Government cannot express in the Bill that members of other representative authorities should be included in the local authority scrutiny committees, especially as the Home Office has argued that this is to be the case in practice. Including such representatives can only aid a joined-up approach to tackling local problems and help share information and understanding. I will be most interested in the Minister’s view of how this mechanism will work with the current lines of accountability.
I understand the principle behind the Government’s proposal. It is a call for action. Scrutiny committees have the potential to be a very valuable forum. One can argue that on the one hand the Government are merging bodies involved in crime and disorder to try and reduce the pressure on them, yet on the other they are setting up new committees involved in the exact same area, albeit in a different way. There are clearly some outstanding concerns that need to be addressed before we can be confident that the workings of different organisational relationships have been thoroughly thought through.
I am grateful to the contributors to this debate for the constructive way they have engaged with the issues and the focus that has been placed on the accountability and management of important partnerships involved in crime and disorder.
The review of the partnership provisions of the Crime and Disorder Act 1998 that has been undertaken during the past year or so stresses the importance of including members from the police authority on the overview and scrutiny committee when it is looking at crime and disorder matters and the work of the crime and disorder reduction partnership, to ensure that local policing priorities are properly reflected at the strategic level.
The Secretary of State continues to offer assurances that we still believe it appropriate to include the police authority on the overview and scrutiny committee functions, and the regulation-making power in Clause 18 allows for that flexibility. We are consulting practitioners around the country on exactly how best to exercise that power, and most importantly that will include police authority members. However, I understand the sensitivity of the issue against the background of current discussions about the size and composition of police authorities.
It is also important to highlight that the composition of such committees should continue to reflect the current and future structure of community safety delivery. The power in the Bill will allow that to happen. The power is subject to the affirmative resolution process, and we can fairly argue that Parliament will have an opportunity to both monitor and scrutinise its use and effectiveness.
Amendment No. 114 is a consequential amendment to ensure that, if police authorities are added to the membership of the crime and disorder committee by Amendment No. 103, the same applies to those overview and scrutiny committees set up in areas not operating under executive arrangements. However, as previously stated, we have taken the power to specify who should be co-opted to sit on those committees, and for that reason we do not require it to be set out in primary legislation. It is worth underlining the point by saying we will also have a power to provide that they may be given voting rights.
Amendment No. 117 would alter the structure of crime and disorder reduction partnerships by reducing the number of responsible authorities from five to two. This amendment would make the police and the local authority responsible and accountable for the development and delivery of all aspects of the partnership strategy. In our view this narrowing of membership would come at a time when, as a consequence of good partnership working and recent strategy changes, the CDRP remit has expanded to cover crime and disorder, substance misuse, anti-social behaviour and behaviour adversely affecting the environment. I would have thought, given their experience, that my noble friends Lord Harris and Lady Henig, and the noble Baroness, Lady Harris of Richmond, understanding as they do the value of good partnership working, would see the benefit of having this broader partnership membership.
We acknowledge the important role that the police and the local authority undertake. Perhaps one might describe them as leading players in taking forward the CDRP’s work. However, we think the remaining responsible authorities continue to play an equally critical role in the work of partnerships. This amendment would be a step backwards in terms of joined-up local delivery, and we do not think it would necessarily assist in tackling important community safety issues at the local level.
CDRPs are founded on the principle that tackling crime and disorder is not just a job for the police. I am sure that that is a view all your Lordships share. To tackle the root causes of crime, a wider range of agencies must be involved. The partnership approach, as taken forward by CDRPs at the local level, has achieved sustained reductions in crime across the country, and we think this amendment might undermine or threaten some of that good work.
I am not sure I fully understand the thrust of my noble friend’s argument. In many local areas there is a sense of partnership fatigue, with bodies that are required to sit on local partnerships because of legislation passed by your Lordships and another place at various times, or because of circulars that say you cannot spend money on particular things without a partnership committee.
Trying to draw a distinction between those that have the primary responsibility for service delivery in this area—it will remain the local authority and the police service—and those other authorities that have a peripheral, though important, role is surely essential. The amendment gives clarity to what people are there for, which is why it is expressed in those terms. That does not stop the partnership, in terms of the people involved primarily in drug rehabilitation, being present for discussions specifically associated with that, but it clarifies who is part of the strategic discussion and of the service delivery discussion. As I understood it, that was the objective of the Home Office’s policy.
I am also conscious that there is a lot of discussion about the nature of local partnerships, and the relationship between all these things and the local strategic partnership. Again, the clarity of thinking across government departments about this is not as good as it might be. At least, if it is clear to someone, it is not clear to me. I would be grateful if my noble friend could give us a little more on why he thinks the proposals in the amendments I have put forward will make things worse rather than better. Surely clarity will have been given to the roles involved.
I see my noble friend’s intervention as helpful. I know we share the same objective in the end: to ensure that partnerships work well. I understand the point about partnership fatigue, not least because, like him, I have felt somewhat overburdened by the commitment to different partnerships in the past. Partnerships are not just important but highly significant. The danger of going for the two-partner approach—which is effectively what the amendment would achieve—is that those others who are important and, I argue, integral to valuable partnership working at a local level will feel downgraded and not as valued as they formerly were. I have acknowledged that one would expect local authorities with their professionalism, and police authorities with their professionalism and expertise in dealing with strategic matters, to play a leading role. There is no suggestion that that would be in any way downgraded in partnership working. There is added value in bringing others in and making them feel not the most important but certainly equal partners, in terms of their commitment, and making the work of countering crime and disorder activity more widely valued than just within the local authority and policing family.
Amendment No. 118 looks at the process of separating out the strategic responsibilities of the crime and disorder reduction partnerships from those relating to operational delivery. We see the group composition recommendation as an endorsement of the recommendation outlined in the crime and disorder review, which also proposes the need to separate the operational and strategic obligations of the partnership to facilitate delivery, so we recognise the terms and parameters of this debate. We are fulfilling our commitment to consult CDRP responsible authorities and other stakeholders on how such a proposed separation of strategic and operational functions could be established and implemented. It would be counterproductive to enforce a definitive structure in primary legislation until that consultation process has been completed. There is still something to be learned from that. For that reason we propose taking a power in new Section 6 of the Crime and Disorder Act to use secondary legislation to bring about change in the most effective way. We want to listen to the voices that need to be heard throughout the consultation and learn from their important messages.
Amendments Nos. 119 to 126 are clearly very important. The Bill already incorporates provisions that will provide for the inclusion, removal and review through secondary legislation of those persons or bodies listed as the responsible authorities for the CDRP, though subject to the duty to consider crime and disorder in their work, and those deemed relevant authorities for the purposes of information-sharing under Section 115 of the Crime and Disorder Act.
Amendments Nos. 119, 123 and 125 add no new support to those provisions and would duplicate requirements already outlined in the Bill. Amendments Nos. 120, 124 and 126 propose to remove the clause that would allow the Secretary of State to alter or remove those persons or bodies listed under the categories mentioned previously. The proposal to take the power to alter the list of authorities under these categories arose from the findings of the CDA review, and reflects the opinion of a great number of stakeholders who saw the need for the Government to be able to alter those lists without recourse to primary legislation. We in turn are keen to reduce bureaucracy. That is why we want to take a power to alter these lists by means of secondary rather than primary legislation. There may be occasions when this is needed in the future and secondary legislation represents a much simpler and faster way of achieving the same result. It will also allow us to react to the rapidly changing nature of the wider partnership landscape. The power is subject to the affirmative resolution procedure and the Committee will have an opportunity to monitor and scrutinise its use.
I turn to Amendment No. 121. It was highlighted through the CDA review that not all partners play an active role in the CDRP and more specifically in the development and implementation of the crime and disorder strategy. New Section 6(3)(c) in Schedule 7 was drafted to ensure that all responsible authority members of the partnership are encouraged to play an equal role in crime and disorder partnership work, and not to give any one partner primacy. In addition, this clause is key to delivering the strategic operational split of the crime and disorder reduction partnerships’ work as set out in the Crime and Disorder Act review.
I am grateful to my noble friend for giving way yet again. He has just talked about equal partners. Will he run past me again why the fire authority is an equal partner of the police in local crime and disorder? The fire authority has an important and valuable role in dealing with arson and offering fire safety advice and so on, but sometimes its involvement in matters other than flippantly offering to turn hoses on people who are causing disorder is fairly difficult to follow. What I am trying to get at—this comes back to my noble friend’s masterful dismissal of the amendments that I spoke to a moment ago—is that you cannot really claim that these partners are equal. They have a different level of involvement in these issues. Somehow we need to recognise that without pretending that they will all have a legitimate equal commitment in these areas.
I understand the point that the noble Lord makes. He and I are equally Members of your Lordships’ House but I am sure that he makes a greater contribution than I do. I see the membership in that light. I am grateful to him for reminding me of the importance of the matter. We are consulting on the detail behind the implementation of the policy and will aim to use this power to reflect the best way forward as set out by stakeholders.
Amendment No. 122 redefines what is meant by implementation and excludes the process of the CDRP monitoring and reviewing its strategy. The Crime and Disorder Act review 2006 highlighted the good practice being undertaken around the country where CDRPs were reviewing their strategies annually to reflect changing trends and circumstances. As a consequence the review findings concluded that there was substantial benefit in the review process, as it assisted CDRPs to continue to reflect on their achievements and establish new objectives to continue to support the reduction of crime and anti-social behaviour in their respective areas. We are aware of the burden that this might cause and the need to focus on delivery, so are consulting stakeholders over the summer on a range of issues, including how best to implement this finding through the Bill. As a result of the review, partnerships will also be required to undertake strategic intelligence assessments. It is vitally important that a provision exists that requires CDRPs to review and monitor their strategies to reflect any changes in local crime and disorder patterns and issues that these assessments might raise. In addition, the process of regularly reviewing the strategies is key to supporting CDRPs in identifying whether they have met statutory requirements, whether local objectives effectively meet local needs, and whether they continue to prioritise current and future resources according to the issues faced locally.
I am conscious that I have taken some time in replying but the value of the amendments is such that they require and merit very careful consideration. I appreciated the constructive comments made by Members of the Committee on the different amendments in this short debate.
My noble friend has gone, as ever, some way to meet my concerns without fully meeting some of the fundamental objectives which lie behind my amendment, particularly the significance of local accountability of policing and the importance of underlining that, as policing is not like any other service. My earlier amendments were designed to underline that, as it is so important. However, in view of the time, I do not want to labour this any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006
rose to move, That the draft order laid before the House on 19 June be approved [31st Report from the Joint Committee].
The noble Lord said: My Lords, this is an order about patients: they are at the heart of our changes to the regulation of medical practitioners and other health professionals. The order will improve the way in which the General Medical Council protects patients, first, by simplifying the registration structure and removing discrimination against suitably qualified overseas medical graduates. Secondly, it revises the training requirements for newly qualified medical practitioners with provisional registration. Thirdly, it clarifies arrangements for the temporary registration of visiting eminent specialists and other overseas practitioners visiting the United Kingdom for a special purpose—for example, embassy doctors. Fourthly, it requires new registrants to demonstrate at the point of registration that their fitness to practise is not impaired. It also takes steps to ensure that practitioners cannot derive any unintended benefit by virtue of their name being suspended from the medical register. It introduces compulsory indemnity insurance cover for practising medical practitioners, and it requires newly qualified or restored practitioners to work in an approved practice setting.
The Government have a programme to modernise the way in which health professions are regulated, and this order fits into that. It continues the process of updating the Medical Act 1983 carried out in the amendment orders of 2000 and 2002. In a number of important respects, it follows the model used for dentists, nurses, opticians and other health professionals. Our work is making regulation more responsive to patients’ needs and better at protecting them.
There have been some suggestions that the Government should end the present system of professional regulation, but that would be the wrong response. Instead, the Government are strengthening regulation in the public interest. It has also been suggested that issues such as the consideration of this order to amend the Medical Act would be better held back until after the release of the findings of the Chief Medical Officer’s review of medical regulation in the light of the fifth report of the Shipman inquiry. However, the contents of the order are essentially a fine-tuning of the regulation of doctors and the administration of the General Medical Council and are outwith the remit of Sir Liam Donaldson’s review. The order covers issues that we should want to be addressing irrespective of the findings of Sir Liam’s review, and it in no way pre-empt his recommendations.
Regulatory bodies have risen to the challenge. The General Medical Council has played a full part in bringing the changes about and it has worked hard to develop the further proposals in this order with us—most of them began as GMC proposals. I will summarise the main changes that the order brings about.
The first significant change that we encounter on reading the order, after some material about renaming the GMC’s registration decisions panel, is found in Part 2, which introduces amendments relating to the abolition of the register of practitioners with limited registration. This has several purposes. It improves the availability of suitably qualified medical practitioners for the benefit of patients, it simplifies the registration system and it removes possible discrimination against suitably qualified international medical graduates, wherever in the world they have trained.
The second major feature is a revision of the training requirements for newly qualified medical practitioners with provisional registration who are training in the United Kingdom. In future, the GMC will require all provisionally registered doctors to complete a programme for provisionally registered doctors. The content of the programmes and the bodies that will be allowed to provide them will be determined by the education committee of the GMC, which will appoint visitors to check that the standards that it has set are being complied with.
The next major feature is a clarification of the provisions covering temporary registration for visiting practitioners who qualified outside the European mutual recognition area. Section 27 of the Medical Act is to be replaced by new Section 27A, on temporary registration for visiting eminent specialists, and new Section 27B, on special purpose registration. Both new sections set out arrangements for the conditional, temporary registration of overseas doctors.
We then turn to questions of fitness to practise in connection with registration covered in Part 5. Entitlement to registration under the Medical Act will be conditional on the demonstration that an applicant’s fitness to practise is not impaired. The registrar of the GMC is given extended powers to obtain information to confirm that an applicant’s fitness to practise is not impaired at the point of registration. If new information emerges later showing that the practitioner’s fitness to practise was so impaired at the point of registration, the registrar may take steps to remove the practitioner’s name from the register.
In Part 6 there are new powers for the GMC, post-registration, to apply to the relevant court to require the production of documents or information related to fitness to practise that have not previously been forthcoming. Part 6 also provides clarification of the GMC’s powers to disclose fitness-to-practise information where it regards it as being in the public interest to do so.
Part 7 provides that, where a person’s name is suspended from the register, they be treated in certain circumstances as if their name were still on the register, to avoid them deriving any unintended advantage where fitness to practise may be pending. Part 8 simplifies the arrangements for dealing with cases of fraud or error with regard to registration, allowing these to be dealt with by the GMC’s registrar with a right of appeal to a registration appeals panel. Part 9 clarifies that the revalidation of a medical practitioner’s licence to practise can take place at any time, and it permits the GMC to make regulations that will require medical practitioners to provide the GMC with information to assist it in determining when and how to revalidate them.
Part 10 contains a new requirement that all practitioners with a licence to practise should be covered by an adequate and appropriate indemnity or insurance arrangement. That has previously been good practice, but not mandatory. It is in line with arrangements introduced or soon to be introduced for other major healthcare professions. Part 11 requires all newly registered practitioners and certain of those newly restored or transferred from the limited register to work in an approved practice setting until their first revalidation. That will ensure that such practitioners receive the support that they need to enable them to practise effectively and safely.
There are also one or two lesser provisions, including some relating to registration fees. For instance, the renewal of registration fees will no longer necessarily be linked to the date of a practitioner’s first registration. Finally, there are minor unconnected amendments to the OpticiansAct 1989, relating to the main purpose of the General Optical Council, and to the Nursing and Midwifery Order 2001, relating to its election scheme.
These are significant reforms, which will make a real difference to patients. Organisations as varied as the GMC, NHS bodies and the BMA have expressed support in a full public consultation exercise. The results of that consultation have been made available. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 19 June be approved [31st Report from the Joint Committee].—(Lord Warner.)
My Lords, I thank the Minister for introducing the order, which in broad terms I welcome. I have a few comments and questions.
The first main change that the regulations will bring about is the abolition of limited registration for international medical graduates and its replacement with a single registration structure for all doctors. I recognise that the current system is seen as discriminatory towards graduates from overseas and as carrying with it an unwelcome element of complexity. Healthcare regulation has changed a great deal over the past few years and it is right that we should review the merits of having limited registration status when there are other checks and balances in the system, such as appraisal, clinical governance and notably, in the future, revalidation.
Nevertheless, we need to remember why limited registration was thought in the first instance to be desirable. It was to introduce an additional safeguard for patients where doctors came to this country without having first gained their qualifications here. We need to make sure that international graduates who will now be eligible for full registration are of an equivalent standard to that of medical graduates who have qualified in the UK. It is impossible for the GMC to vet and approve every medical school overseas, so the suggested answer is to try to introduce an element of testing and supervision of international graduates who are applying for full registration.
The PLAB test has been established for many years and will continue. The order proposes that overseas doctors with an acceptable qualification should now be channelled initially into approved working environments where there is provision for adequate supervision. That raises three, perhaps obvious, questions: what should count as an acceptable qualification, how should the approved working environments be selected and what mechanisms will ensure that supervision in those environments is adequate? The answers to those questions will largely lie with the GMC, which, I am sure, is under no illusion as to the need to deliver a system that is at least as safe for patients as the current one. We understand that much of the detail will be spelt out in GMC guidance.
In passing, it is reassuring that new Section 21(c) refers to provisional rather than full registration in cases where international graduates who may have passed the PLAB test are nevertheless not able to satisfy the registrar that they have had the necessary clinical experience in their own countries. Knowledge and skill are essential, but, equally, so is experience. Does the Minister agree that it is important for there to be clear criteria governing what should qualify as an approved working environment and that approved status should not necessarily be viewed as being permanent, if, for example, there are reasons to question a particular organisation’s fitness for purpose in this context?
The order contains a power for the GMC to erase a doctor from the register if it is shown that he failed to declare an impaired fitness to practise at the time of his registration. There is a distinction to be made here between someone who knowingly deceives the GMC and someone who does not. The order does not make that distinction, and perhaps the Minister could comment on that point.
The GMC is also being given power to disclose fitness-to-practise information about doctors, including information about their fitness-to-practise history. If I have a concern about that, it is that doctors should be fairly treated as individuals. The GMC has a policy of not publishing information about the physical or mental health of a practitioner, and that seems right and proper. At the same time, the exercise of the powers granted to the GMC is highly dependent on what its policy happens to be at any particular time. The powers granted to the GMC are extremely broad. Given that we believe in professional self-regulation—and I was glad to hear the Minister’s comments on that point—I am not suggesting that that is wrong. However, where the GMC believes that it is in the public interest to disclose historic information about an individual, it is important for that practitioner to have at the very least an automatic right to make representations to the GMC if he or she wishes.
The order allows the GMC to dispose of fitness-to-practise cases without a hearing where the doctor agrees to abide by certain undertakings. There are obvious dangers there. One is that if cases are disposed of in that way without a full hearing taking place, the public may believe that the issues are simply being brushed under the carpet. If an aggrieved patient is involved in the case, he or she needs to have a say before the final decision is taken. I am not sure how many cases the GMC believes can or should be dealt with in this way, but there seems to be a need for some ground rules as to what sorts of case should and should not be eligible for consensual disposal. At the moment, we lack that sort of information. Fitness-to-practise hearings are time-consuming and expensive and it would not be desirable for consensual disposal to be regarded as a cost-saving alternative to due process.
Lastly, I should like to touch on the issue of mandatory professional indemnity or insurance. I am aware that there is widespread support for this proposal, which we have debated previously in the context of dentists. However, I have received representations on whether discretionary indemnity provides cover that is as robust and reliable as that provided by conventional insurance. My view is that both indemnity and insurance have their respective advantages and disadvantages and that both should be allowed in principle. However, it should be up to the GMC to draw up its own rules on what should qualify as adequate and appropriate cover. The level of cover for every individual doctor should be subject to regular review to reflect his or her type of practice. The penalties for a doctor not having adequate and appropriate cover are potentially severe, but what matters is that the right cover should be in place. Doctors need guidance on this.
I look forward to the GMC publishing its detailed proposals on all these matters. Meanwhile, I am content for the order to be approved.
My Lords, before I begin I should declare several interests. I am a former member of the General Medical Council, of its fitness to practise committee at various stages, and of its education committee. I am also an honorary fellow of the Royal College of Physicians and the Royal College of General Practitioners, so I could be said to have an interest in some of this.
Broadly, this order seems eminently sensible to us, and the Government are to be praised for having consulted so widely. Their report on their consultation is excellent. However, not all the questions have been answered, and I share some of the concerns expressed by the noble Earl, Lord Howe.
We have all had representations from the MDU and the MPS, for which we are grateful. They raise some serious issues, and the noble Earl, Lord Howe, has addressed them to some extent. New Section 44C gives the GMC powers to require doctors to have mandatory indemnity and also to determine what constitutes “adequate and appropriate indemnity”—that is absolutely right. It must be right that doctors should have compulsory insurance or mandatory indemnity. But the Medical Defence Union argues that this order may allow discretionary indemnity to be used to indemnify doctors and that such doctors would then have no right to receive assistance with a claim but only the right to request assistance. Given the scale of some payments in the current climate, might not discretionary indemnity be simply inadequate to meet doctors’ and patients’ needs—assuming that the MDU is right? I do not know the answers to any of these matters; I am genuinely asking the Minister for clarification.
The Medical Defence Union has argued that discretionary indemnity is not regulated, and nor are the providers of wholly discretionary indemnity, in the manner in which insurers and providers of insurance are regulated by the FSA. It also argues that there is no contract, that no companies providing discretionary indemnity may give a doctor a guarantee that they will assist with clinical negligence claims, and that to do so would be to carry on an unregulated insurance business, which is a criminal offence.
The MDU gives a variety of other reasons why it is concerned; but one can see why that may be the case, because both kinds of indemnity and insurance have existed in parallel over many years. It seems significant that three UK healthcare regulators—the general optical, osteopathic and chiropractic councils—already require healthcare professionals registered with them to have an insurance policy because they received legal advice that discretionary indemnity does not meet the definition of “properly insured”.
Will the Minister clarify whether the Government are concerned about that and whether they think the MDU’s representations are right or wrong? They may be right, but I simply do not have the expertise to tell. It would also be good to hear whether the Government will insist that an indemnifier give an explicit and enforceable undertaking to pay for negligence claims that arise from normal clinical practice. The MPS says that it has never withheld such payment, but what would happen if others joined the market? Indeed, one might argue, as the MDU does, that the indemnifier and the terms and conditions of indemnity should meet minimum terms and conditions. That seems nearer the Medical Protection Society’s position, but it would be good if the Minister could clarify that.
The question of indemnity cover for retired doctors was raised in another place. Again, it would be very good to hear what the Minister has to say about this and how satisfactory the situation will be.
The second point is the change from limited registration, which the noble Earl, Lord Howe, raised. Those who would formerly have had limited registration, such as those who graduated overseas, will now have full registration. How will that work in practice? Who will undertake the approval in approved working environments—another point raised by the noble Earl, Lord Howe—and how will the approved working environments be monitored in the longer term? What will the standard be and, as the Member for Westbury asked in another place, what will be the impact on existing trainees who are supervised? It would be very good to hear how the Minister perceives that monitoring will be approached.
Generally, however, we are very pleased that this measure gets rid of some of the unfairness to doctors who have not trained in the UK and who wish to continue training here. But how does that fit with new decisions to change the immigration status of doctors from overseas, who have in the past served us so well in the National Health Service? We have discussed this before, including recently in Questions, and we will no doubt do so again, but it would be good to hear what the Minister has to say about what might be argued to be two apparently mutually contradictory policy directions.
The Member for Romsey in another place raised the issue of mutual recognition for EU graduates set out in EU law. That does not include the English language proficiency tests, yet Section 21B(1)(d) states that a person can be registered if he satisfies the registrar,
“unless he is an exempt person, that he has the necessary knowledge of English”.
Sandra Gidley asked the Minister in another place to clarify whether the phrase “exempt person” meant doctors from the EU. The Minister answered, rightly, that EU law requires us to register them as doctors, but he added that there is nothing to stop employers imposing a language requirement on a person seeking to work in a specific place. It would be good to hear from the Minister how realistic and important he thinks that is, as this has been an issue in the National Health Service.
Those issues aside, we are broadly content with the order and are particularly impressed with the consultation that the Government undertook.
My Lords, many technical questions have been asked and I shall endeavour to answer them. I am grateful for the support from both Front Benches. I start with some of the points made by the noble Earl, Lord Howe. I agree that what amounts to an approved setting should be clear. Like him, I suspect that it will not be approval for all time, as circumstances will change, and I expect the GMC to be able to cope with that. I am sure that the GMC will consider this issue carefully before it brings forward guidance.
There need to be ground rules for the consensual removal or disposal of cases, and I am sure that the GMC will also consider this area. Such cases will be those that are not so serious that a person's registration might be erased or formal conditions might be attached. A lesser sanction of undertakings given by the doctor and agreed with the GMC will be in place and, if those are breached, fitness-to-practise action may follow. I can write to the noble Earl with a little more detail on that.
I acknowledge that there is a wide-ranging power for the GMC to disclose fitness-to-practise information in this set of provisions. A section of the report on the consultation draws attention to the fact that the GMC currently discloses much historical information about a doctor’s fitness to practise as a matter of routine. That would occur in situations where the information was already in the public domain; for example, where a doctor had appeared before a fitness-to-practise panel in public and it had decided to erase, suspend or place conditions on the doctor’s registration. So the ability to do that already exists to a large extent. These determinations will always be read in public, and the GMC publishes them on its website. The policy intention here is that these public decisions will form part of the doctor’s record in the list of registered medical practitioners, but if the noble Earl is still uncomfortable with that, I shall be happy to follow up with more detail.
Both the noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, raised the issue of indemnity and insurance. It is government policy for all healthcare professions to have such cover and it is progressively being introduced as Section 60 orders permit. This is a Section 60 order. There are two types of cover and each has a major organisation supporting it: the Medical Defence Union, which proposes an insurance-based approach; and the Medical Protection Society, which favours a mutual approach, sometimes called a “discretionary indemnity” approach. They are coming at this from different points of view but the Government's line is that both have worked well for practitioners. We do not believe that it is right for us to tell doctors which system they should follow. The order provides that practitioners can opt for insurance or indemnity cover or a combination of the two. There will be guidance on this from the GMC, which will consult widely. The guidance to the NHS will require it to consult widely. We know that doctors have to show that their cover is appropriate each time they renew their registration, which has to be done annually, so there is an obligation on doctors to prove that they have adequate cover.
At the moment, half of all doctors and dentists have discretionary indemnity, and history shows that that meets their needs. My honourable friend Andy Burnham in the other place made it clear that we are not aware of circumstances in which these arrangements have been found to be unsatisfactory. We believe that under these arrangements there are sufficient obligations on doctors to demonstrate that they have adequate cover. Arrangements are in place, so we think it best to leave it to doctors to choose between insurance and mutual indemnity.
The noble Baroness, Lady Neuberger, asked whether the Government would insist on minimum standards of indemnity. I think that I have answered that question. As I said, the GMC will make the rules on this after consulting on them, and those rules will require government approval. She also asked whether employers could impose language requirements before employing somebody. Our guidance to the NHS requires them to do so. We are not aware that there is any lack of understanding by employers, or that when they need to assess someone's language competence they do not do so.
Concerns were expressed about the limited registration and what qualifications are acceptable. The qualifications accepted by the World Health Organisation will, as now, allow someone to sit the PLAB test, and the GMC will publish guidance about practice settings, so that we can ensure that those are appropriate.
The noble Baroness, Lady Neuberger, raised issues regarding changes to the Immigration Rules, which we have debated in this place. I do not doubt that we may have other debates on that. The important point in the context of this order is that any existing leave will continue under the conditions in which it was granted. If someone has valid leave as a postgraduate doctor or dentist, they can continue in their current post and take up any other relevant training posts that they have sufficient leave to complete, until their leave expires.
This is a complicated issue on which we have had wide consultation with the various interests. I recognise that some people wish that this had not been brought about, but it is important to bear in mind that the purpose of these changes was to ensure that the expanded number of UK medical graduates could proceed through the postgraduate training courses to specialist qualifications. It is important that we become more self-sustaining in our output of doctors, and do not rely on doctors from overseas being attracted here. That is not to say that we do not recognise the major contributions made currently and in the past by doctors who are international medical graduates.
If I have missed anything, I will follow it up and write to noble Lords. That is my best attempt at answering the questions raised.
On Question, Motion agreed to.
Police and Justice Bill
House again in Committee on Clause 17.
Page 13, line 24, at end insert “, provided the councillor has first consulted the responsible authorities”
The noble Baroness said: I shall also speak to Amendments Nos. 109 and 111 in my name. All seek to achieve a common purpose: to ensure that certain safeguards are in place before the proposed community call to action can proceed to the crime and disorder scrutiny committee.
First, I wholeheartedly support the aim of these provisions, to bring greater reassurance and responsiveness to community safety. However, I—and colleagues in the police service, police authorities and local authorities—have concerns about how this mechanism might operate. I appreciate that much additional detail will be in the regulations and guidance which will, in due course, be prepared to explain how this feature of the Bill will work. It does not take a particularly overactive imagination to see that there is great potential for misuse and mischief with this mechanism, however, whether by extremist political parties, single-issue fanatics or simply neighbours with a grudge. I fear that scrutiny committees could be overwhelmed with a demand for their services. Even where they are not, the public might have false expectations of what they can realistically achieve, and end up disillusioned.
The community call to action is intended as a last resort where other avenues have failed to produce results. My amendments simply seek to make this plain, and ensure that all complaints must be first referred to the local CDRP by a councillor or council executive. That would ensure that the CDRP is aware that there is a problem, and has an opportunity to address the issue, or explain why it does not believe it should. My colleagues in this House should be aware that complaints have often been forwarded by a single person several times. The CDRP must be given the opportunity to say that and to explain that a complaint has already been dealt with, possibly on more than one occasion. Only when the CDRP then fails to take action would the matter be referred to scrutiny. That is the important point.
I am sure the Minister will reassure me that this will be addressed in the regulations and guidance envisaged by the legislation, because my noble friend is good at reassuring me that the problems I raise will be addressed. He will not be surprised to hear, however, that I would be happier if it was made plain in the Bill, which may reassure those alarmed at the potential for misuse that this mechanism could represent. I emphasise that I wholeheartedly support the community call for action. It will be an important part of local accountability, but its use must be sensibly, carefully limited. I beg to move.
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.
However, the community call for action will be available where there is a persistent local problem that the police, local authorities and perhaps some of the other members of the partnership have failed to address. Such a problem might take the form of, for example, drunken behaviour late at night in a residential area, repeated criminal damage on a housing estate, perhaps drug-related activity or continuing anti-social behaviour by a group of young people.
In many cases the criminal or anti-social behaviour complained about may be committed by a person or persons unknown to the complainants. That will not exclusively be the case. If the disruption is, for example, caused by a particular problem family, the names of the alleged perpetrators may be known to local residents. But I expect that to be the exception rather than commonly the case.
We should consider Amendments Nos. 106, 107, 110 and 112 against that backdrop. These rather assume that the names of the alleged offenders will be known in all cases. Perhaps that is not the case, but that seems to be the assumption behind those amendments. As I have sought to explain, that is not necessarily the case. So, a general requirement on the councillor, the local authority or the overview and scrutiny committee to notify the person or persons who are the subject of the community call for action would not be appropriate. Moreover, I am not persuaded that it is properly the responsibility of the local councillor to engage directly with a named individual or individuals who are the subject of a complaint. The councillor will have, and, I would say, should have, a responsibility to refer the issue raised by local residents to the police and perhaps also to the local authority to see whether the matter can be resolved informally—that is, without reference to the overview and scrutiny committee.
I think that it would perhaps endanger the more general role of councillors if they were placed under an obligation to become directly and personally involved with an individual. In this instance that is not really an appropriate role for them.
If, on consideration of the issue, the police or local authority considers that action should be taken against a known individual or well known family, it will be their responsibility in the normal way, not the councillor’s, to make contact with the person or persons concerned. If the council considers that a parenting contract is appropriate, it will clearly need to enter into a dialogue with the parents concerned. If an ASBO is the right course, the person against whom it is intended to secure it will have an opportunity to put his case before the court considering the application. The same broad approach will apply if other specific action is taken against named individuals. Their rights are adequately protected by other legislation governing ASBOs, parenting contracts and orders, or whatever other tool is used to tackle offending or anti-social behaviour.
We do not need to build additional safeguards into Clause 17. To the extent that it is necessary to touch on such issues in the context of the community call for action, we can do so in the guidance issued under Clause 18. I am mindful of the comments that the noble Viscount, Lord Bridgeman, made about ASBOs and the NAPO report on those who have had mental health problems and have been caught up in the ASBO process. I acknowledge that that is an issue. I, too, have read newspaper reports of the same calibre and nature as those mentioned by the noble Viscount. I understand the issue. That is why we think it is probably more appropriate to deal with such issues in guidance rather than in the detail of the legislation.
Perhaps it is worth adding that one possible course of action is for the police to investigate the offence and arrest and charge the alleged offender. That may actually be the most appropriate way to tackle the issues. In such circumstances, informing the alleged offender, as the amendments propose, might actually inhibit any investigation.
Amendment No. 105 deals with a separate point. It seeks to extend the community call for action to cover county councils as well as district councils in two-tier areas. I am sensitive to the noble Viscount’s point. I have operated in a two-tier system and I have operated in a unitary system. I concluded from my experience—the noble Viscount will not be surprised to hear me say this—that a single-tier system in local government is probably the best. However, I recognise the invaluable role that each part plays within a two-tier system. We are keen to avoid confusion and overlap, which was one of my issues with the two-tier structure.
A formal role for county councillors, and certainly for county overview and scrutiny committees in the community call for action, could create considerable overlap. A situation could arise where a member of the public raises an issue at both district and county level and resources are needlessly dedicated to deal with it at both levels. That would not be a wise use of time or resource.
Opening the community call for action to county level has all the potential for confusion and could create significant additional burdens on county scrutiny committee processes. I hope that noble Lords will agree that such confusion and overlap is best avoided. If the community call for action issue is indicative of a more strategic problem that is not restricted to the district crime and disorder reduction partnership, the guidance that will accompany this provision will be clear that that will need to be fed into the county scrutiny committee, which would then pick it up as part of its regular assessment of CDRP activity across the county. That is provided for in the Bill.
The community call for action is concerned with local crime and disorder issues and therefore it is entirely appropriate for the local district councillor and district overview and scrutiny committees to deal with such issues.
Finally, I turn to Amendment No. 108, which seeks to simplify the drafting of Clause 17(4). We have used the term,
“a member of a local authority”,
rather than referring to a “councillor” because the phraseology needs to capture the City of London as well as other councils. The parliamentary draftsman did not consider the word “councillor” to be apt to describe all the members of the Common Council of the City of London, including the Lord Mayor of London and aldermen. So it was drafted in that way for that reason.
I hope that my explanations will satisfy my noble friend Lady Henig, the noble Baroness, Lady Harris, and the noble Viscount, Lord Bridgeman, acting in the name of the noble Baroness, Lady Anelay, and that my noble friend will feel able to withdraw the amendment.
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.
After Clause 20, insert the following new clause-
“COLLECTION OF DATA
The Secretary of State shall collect and interpret data on reporting of offences which manifest prejudice based on race, religion, disability, sexual orientation, ethnicity or other group characteristic.”
The noble Baroness said: The amendment ensures a positive obligation to collect data on offences motivated by prejudice. I am grateful to the Guide Dogs for the Blind Association for providing briefing material. Most work on hate crime does not include hate crime committed against disabled people. The lack of statistics hampers work on this issue.
In tackling hate crime of this nature, it would therefore be helpful if police forces were obliged to record details about a person's disability, along with their access needs. We are pleased that the Metropolitan Police have already identified this as an issue and are currently reviewing their procedures to ensure that the statistics that they already collect on hate crime are as accurate as possible. Our organisations raised this matter during the passage of the Criminal Justice Act 2003 and the Government said that they would conduct a review of the collection of police statistics. Our organisations would welcome an update on the outcome of that review, if the Minister can provide it.
In the United States, legislation requiring data collection has proved to be a powerful mechanism to confront violent bigotry against individuals on the basis of their race, religion, sexual orientation or ethnicity, and has increased public awareness of the problem. As a result, there has been an increase in the reporting of those offences. The Department of Justice has established a new toll-free phone number to report complaints of hate crimes. Studies have demonstrated that the victims are more likely to report a hate crime if they know that a special reporting system is in place.
Although the disability equality duty will clearly require the gathering of information about disability, there is no such requirement about sexual orientation. For the avoidance of doubt in relation to disability, to prepare for any future duty concerning sexual orientation and for the better delivery of criminal justice, that should be made clear in the Bill. By placing a specific requirement in the Bill, the Government would make it clear that the collection of hate crime statistics was compulsory. Such a requirement would also complement Section 146 of the Criminal Justice Act 2003, which was brought into force in April 2005, and provides for additional penalties for disability and homophobic hate crimes. Such a requirement would also be consistent with the Criminal Justice (Northern Ireland) Order, which requires the collection of statistics in Northern Ireland.
We also believe that more accurate statistics will help the police to devise effective strategies for dealing with all forms of hate crime. I beg to move.
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.
After Clause 20, insert the following new clause-
“Children subject to ASBO proceedings REPORTING RESTRICTIONS
Sections 1(10D), 1(10E) (anti-social behaviour orders) and 1C(9C) (orders in conviction in criminal proceedings) of the Crime and Disorder Act 1998 (c. 37) are repealed.”
The noble Baroness said: Amendment No. 116 would reinstate the 70-year-old protection of reporting restrictions in the cases of children who are subject to ASBO proceedings or ASBO breach proceedings. There would once again be a presumption of reporting restrictions and therefore the protection of anonymity for the child. Article 40(2)(vii) of the Convention on the Rights of the Child clearly asserts that children have the right to privacy,
“at all stages of proceedings”.
Article 3 requires that,
“the best interests of the child shall be a primary consideration”,
in all decision-making. Article 19 requires states to ensure that the child is protected from all forms of violence.
Until the Crime and Disorder Act 1998, then reinforced by the Anti-social Behaviour Act 2003, reporting restrictions were in place under the Children and Young Persons Act 1932, consolidated by the 1933 Act. In other words, it was understood that children were in need of protection, even children in trouble. Have the Government really altered their view that children do not need this protection? The position was changed in 2003 when the deeply unattractive and damaging process of naming and shaming was introduced. It is a sort of modern-day version of putting someone in the stocks, and children at that. We argued against the process then but are even more convinced now as we have seen how uncivilised, uncivilising and seriously counterproductive the process has proven to be.
The Government argue that the orders are a way that communities can be told how children subject to ASBOs are being dealt with and that they encourage local monitoring of these children by identifying them. But there are plenty of ways of telling communities of strategies, programmes and services that are available to local children and families without targeting and publicising individuals. Indeed, local authorities are required by statute to prepare crime and disorder strategies and children and young people plans, and to involve local people in their development.
I declare an interest as chair of Rethinking Crime and Punishment, where we are running an extremely positive programme of engaging local communities in the development and delivery of community penalties in the Thames Valley. We have seen how constructive such an approach is. However, the public targeting, publicising and inevitable demonising of young people is a quite different matter. In most cases it creates misery for the child and the family, often accompanied by bullying and ostracism. I think that we are all familiar with the sort of press coverage given to children in such situations and with how some of the tabloids really go to town in making the most—indeed, the worst—of the sort of trouble that children have gotten into.
For a few, there is the equally undesirable and counterproductive result where they acquire a sort of badge of honour; and that is no better. Finger pointing and targeting produces resentments and ultimately does absolutely nothing to achieve what we all really want—to prevent further low-level, ASBO-type activity. As I said earlier, punishment alone is meaningless unless it is accompanied by a reparative process that pays something back to the community. We know that it is counterproductive simply to target and punish children in this way. Some 39 per cent of ASBOs were issued to children last year. As I mentioned, there is a wealth of anecdotal evidence about the offensive press coverage and, as the noble Lord said, about this punishment being used in the cases of children with various kinds of disorder such as ADHD or Asperger’s syndrome. Children I know very well from my school are being given ASBOs and drawn into the process. Those children are being penalised for their disabilities and marginalised even further.
This is the law of unintended consequences—unforeseen, I am sure, by the Government. But the least we can do is to protect these children from being labelled, then named and shamed. I do not know anyone working with children either within or outwith the criminal justice system who has ever supported such an approach. Furthermore, there has been no detailed evaluation or assessment of what ASBOs actually achieve in outcomes. We know that they criminalise young people earlier, but do communities feel safer? Are communities safer? Are ASBOs effective in combating low-level crime? Until we know the answers to these and many other questions, these children and the communities in which they live are being served very badly by being named and shamed in this way, as are we all by being complicit in what is going on. I beg to move.
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.
We are also talking here about publishing and spreading the identity of these children in the community. There are dangers of victimisation here, and child protection issues, which the noble Viscount, Lord Bridgeman, raised under the previous amendment. Of course, many of these children are among our most vulnerable—and here we are distributing their photographs, places of address and schools among the local community. The tabloids pick them up and place them in the centrefold of their papers, as I have seen. The Minister is accustomed to being attacked. It is a difficult role to play in the Home Office, and we all admire the way in which she counters that. In my own business connection, I am used to experiencing some little vilification in the press. We can take that—but can 10 or 11 year-olds from such families really be expected to bear that?
The matter of rehabilitation was raised by the noble Lord, Lord Judd. A little while ago, I hadthe pleasure of visiting a secure training centre with the noble Baroness, Lady Scotland. We met a young man, Paul, whom we spoke to. His wall was decorated with awards for best student of the week and posters of cars. He was rather small for his age, most articulate, proud of his achievements and very willing to speak in answer to our star questions. He offered us places to sit. He was an endearing young man, I would say. He told us that he had five siblings and that his mother had grown up in foster care. He was looking forward to reading to his mother and teaching his younger siblings to read. He had been out of school for many years and felt that he had more important things to do with himself. His reading had progressed by leaps and bounds over the period of his short stay. He said that the YOI he had attended was too severe and the local authority secure unit was too easy, but the secure training centre was a good mix between the two and had the right balance for him. He seemed to relish the discipline; he spoke of how he had been left in his stripped room for several days until he accepted entering education. He was also prompted by another boy to go into education. Clearly, this had been of great benefit to him.
We spoke to the teachers, and we were very impressed by what they had done in that school. But their concern was that when that boy left that setting it would be like falling off the edge of a cliff and that there were no transitional arrangements to enable him to be resettled properly. Imagine what would happen if that boy had an anti-social behaviour order and his identity was circulated around the local press when he came out. Only this morning in the Metro, there were two photographs of lifers whom people felt had been let out of prison too early. It does not seem too far-fetched for me to say that this boy, when he comes out, could be noted by some passer-by in the street who would be outraged that he had served such a short time for the offences committed and his photograph could be circulated around the local media and in the national press. So that might happen. Despite all his progress he will go back in the knowledge that he has been tarred and feathered in his local community. He knows that that weight is around his neck.
I greatly value, as do we all, this Government’s approach towards restorative justice and the idea that young people can atone for the wrongs they have done. They can have forgiveness, receive absolution and move on. As the noble Lord, Lord Judd, said, this measure stands dead in the face of that. I pay tribute to the noble Baroness and her colleagues for the policies they have brought forward to produce better support for our families and better outcomes for our children. I warmly commend them for that. I see the difficulties of reassuring people in these communities that something is being done about this behaviour. But we should also look at the other side. These are children who have often been failed all the way through. From my experience I know that many of them have been badly let down. They may well have grown up without a father, but with a string of their mothers’ boyfriends. They may have gone to a struggling school before they started to play truant. Their social worker, if they were fortunate enough to have had one, may have changed several times and have been too overburdened to really assist them.
Many of these children deserve more consideration than they have received from their parents or from society. They do matter. I know the Minister will make as helpful a response as she can, and I look forward to it.
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.
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]:
Page 16, line 33, leave out “, or is likely to engage,”
The noble Baroness said: I shall also speak to Amendments Nos. 126B, 126C, 129A and 129C, and I hope that noble Lords will not feel that I am repeating myself yet again.
The purpose of the amendment is to ensure that a parenting contract or order is made only when a child has actually engaged in anti-social behaviour and not simply when he or she is likely to engage in such behaviour. It seems to me that this is another form of intervention that is likely to disengage the child and family concerned and to be counterproductive when the child has not done anything. If anything, it runs the risk of creating a situation ripe for a self-fulfilling prophecy, which is completely undesirable.
A parenting contract is meant to be a voluntary exercise with the purpose of promoting the well-being of the child and giving parental support, which is very important. There has rightly been a general welcome for these contracts where families receive appropriate support at an early enough stage that real preventive work can be done, resulting in averting further problematic behaviour and potential offending. This is exactly the approach that is needed, as it is constructive, creative and positive, as opposed to negative and destructive, as the naming and shaming strategy has proved to be. But to anticipate offending is a step too far.
We must not forget that the sting in the tail of the contract is that a refusal to sign one can lead to a parenting order, the breach of which is a criminal offence. The voluntary nature of the contract is heavily qualified by these conditions. Indeed, the evidence so far is that a disproportionate number of parenting orders as opposed to contracts is being made. In the last quarter of 2005, there were only 54 contracts and 396 orders. Not enough is yet known about how those orders have been used.
The last three of my amendments in the group seek to ensure that the purpose of both contracts and orders is not simply to prevent anti-social behaviour but explicitly to address the well-being of the individual child, as specified in Section 10(2) of the Children Act 2004. It would seem axiomatic to most reasonable people that that would be the case, but it needs to be spelt out. It should be done by undertaking an assessment of the child using the government guidelines in Common Assessment Framework for Children and Young People. All professionals should make such an assessment before putting any framework in place. While parenting may be one of the issues, other, deeper issues may well be revealed, which will have a significant bearing on how the situation is managed. For example, there may be issues to do with addictions, mental health or troubles at school, but it is only once a proper assessment has been made that the way forward can be decided.
YOTs are now required to complete an “Asset” assessment, which helps to determine the extent to which parenting is a factor in a child's difficult behaviour. It is only common sense that anybody authorised to draw up contracts or orders should be expected to use the framework as well. That has been established under the Every Child Matters programme to assess the well-being of the child. I beg to move.
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.
The whole purpose of the parenting contracts and the orders provision in the Bill is about prevention—either preventing the child or young person from engaging in anti-social behaviour, or, in the case of an order, preventing the child or young person from engaging in further anti-social behaviour. The new sections inserted by Clause 21 make clear that a parenting contract will include requirements on both the parents and the local authority, which will ensure that the contract is effective. Similarly, a parenting order will make clear that a parent must comply for up to 12 months with any requirements of the order.
I first turn to Amendments Nos. 126B, 126C, 129A and 129C in the name of the noble Baroness. Their requirements seek to improve the child’s well-being. I want to reassure the noble Baroness. I believe that these requirements are already fundamentally a part of the order because it is about improving the well-being of the child. For example, there may be a requirement on parents to ensure that the child is effectively supervised at certain times, that the child attends school or other relevant education regularly, and that the parents attend all school meetings concerning their child. There may also be requirements on parents to ensure that their child attends a programme or course to address relevant problems such as anger management or drug or alcohol misuse. All those things go towards the well-being of the child.
The local authority will be responsible for ensuring that a careful assessment is made of the child’s situation, and we would expect the common assessment framework to be used. The framework is a holistic assessment and looks at various facets of a child’s life including his needs, the level of care given by the parents and the wider family and environment. All this will go towards ensuring that any requirements made will always have as their priority the well-being of the young person or child. I know that the noble Baroness feels passionate about that because I share that passion without reservation.
We want contracts to be used as an earlier intervention. Many of these will be straightforward, and we think it right that the purpose should be kept as simple as possible. This, of course, would not prevent more significant support being offered to parents in appropriate cases. On orders, the court will need to be satisfied that a proper assessment is made of the child and that any requirements made go towards ensuring that help and support is provided to parents so that they can improve their parenting skills and improve their children’s behaviour.
Therefore, the focus of these clauses is centred very much on the desire to ensure that the child does not engage in anti-social behaviour and that parents are provided with support to help them achieve this. Wider needs may be identified through assessment, and we would expect these to be addressed through the thorough assessment that is made of the child or young person.
In summary, we consider it implicit that a parenting contract or order will improve the well-being of a child and so these amendments are unnecessary. For that reason, I hope in due course that the noble Baroness will feel able not to press them.
Amendments Nos. 126A and 128 would prevent local authorities and registered social landlords from entering into parenting contracts at an early stage in the intervention process when problems could be addressed and potentially resolved before they become more serious. I do not believe that that is what the noble Viscount, Lord Bridgeman, would wish to see. He has always said that he wishes children and their families to have the help and support that will inure to their advantage.
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.]
Page 17, line 18, leave out from beginning to end of line 31 on page 18.
The noble Baroness said: I shall speak to Amendments Nos. 127 and 131 to 136, and I could go on to speak to Clause 23 not standing part of the Bill, if that is helpful. The amendments relate to the inclusion of additional bodies that would be empowered by the Secretary of State to apply for parenting contracts and orders. In particular, this refers to registered social landlords. To some extent, my remarks will overlap with those of the noble Viscount, Lord Bridgeman.
The proposal has given rise to a howl of objection from all agencies and bodies concerned with children and families. It is seen as another avenue of coercion for families when more is required to be able to deliver much needed parenting support voluntarily. RSLs are professionals concerned, by definition, with housing and not the highly complex world of parenting, problematic children and the issues that are involved. Such intervention by RSLs is seen as highly inappropriate. They simply do not have the expertise. Even the National Housing Federation, while welcoming the power to apply for parenting orders, recognises that it would not be effective for it to be the so-called responsible officer to give effect to orders.
However, housing officers can appropriately be involved in an application for an order when this is done in conjunction with other appropriate agencies. We see this as the right way forward in terms of inter-agency working. The other appropriate agencies would be the professionals able to work with families—they have the experience, knowledge and expertise to carry through such an order. Co-operation of this kind is appropriate and desirable, but the extension of the powers as suggested in the Bill is highly inappropriate. I beg to move.
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.]
Page 19, line 27, at end insert-
“(8) A person is eligible to be the responsible officer in relation to a parenting order under this section only if he is-
(a) an officer of the local authority which applied for the order, or (b) a person nominated by that authority or by a person or body requested by the authority to make a nomination. A person may not be nominated under paragraph (b) without his consent.”
The noble Lord said: New sections 26A and 26B in Clause 22 will extend to local authorities and registered social landlords the power to apply for parenting orders. Parenting orders should not be considered in isolation and are only one part of the process of assisting parents whose children are engaging in anti-social behaviour. We know that most parents accept help voluntarily and orders in this context are only for those who are reluctant to get help or deny that they or their children have problems.
As part of the Respect programme of work there will be some £52 million of new funding to start a national programme of change in the way in which public services respond to parents. It is anticipated that this additional provision will come from both local authorities and a wide range of specialist agencies. The Government recognise that it is vital that parenting programmes provided as part of the requirements of a parenting order are of a high quality and are administered by practitioners with specialist skills. We have also taken on board the views expressed by those involved and practitioners who are concerned about ensuring the suitability of registered social landlords to discharge their functions in relation to these orders. Re-examination of the effectiveness of these provisions has highlighted the need to clarify who can be specified in an order as the officer responsible for supervising the order. The Government have therefore tabled these amendments to allow for a wider range of specialists to become involved in the support offered to parents when a local authority or registered social landlord applies for a parenting order.
The amendments to new Section 26A will allow local authorities to extend their partnership working arrangements and either themselves nominate persons from specialist agencies to become responsible officers or ask those agencies to nominate such persons when an application to a court is made. They recognise that there is a wide range of specialist bodies already working with local authorities and provide an opportunity for local authorities to use and widen their pool of these valuable resources.
Similarly, the amendments to new Section 26B will afford greater flexibility to registered social landlords. They will allow for an official of a registered social landlord to be eligible to undertake the role of responsible officer. But the registered social landlord may well want to nominate another person from a specialist agency or body who is better placed and has the requisite specialist skills in areas of parenting support, and the amendments will enable the registered social landlord to do this.
It is, of course, vital that a multi-agency approach is taken when applying for a parenting order and so the amendments emphasise that a registered social landlord must consult the local authority and other appropriate agencies before nominating a responsible officer. Again, this will encourage deeper partnership working among front-line agencies and ensure that support to the parents takes into account any broader and wider factors. In both cases neither local authorities nor registered social landlords will be able to nominate persons to be responsible officers without their consent.
The amendments to Schedule 15 reflect these technical changes and are mainly consequential in nature. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 129C and 130 not moved.]
Page 20, line 22, at end insert-
“(9) A person is eligible to be the responsible officer in relation to a parenting order under this section only if he is-
(a) an officer of the registered social landlord which applied for the order, or (b) a person nominated by that registered social landlord. A person may not be nominated under paragraph (b) without his consent. (10) In deciding whom to nominate under subsection (9)(b) a registered social landlord must take into account the views of-
(a) the local authority mentioned in subsection (8), and (b) such other persons or bodies as the registered social landlord thinks appropriate.”
On Question, amendment agreed to.
[Amendments Nos. 131 to 136 not moved.]
Clause 22, as amended, agreed to.
Clause 23 [Contracting out of local authority functions with regard to parenting contracts and parenting orders]:
[Amendment No. 137 had been withdrawn from the Marshalled List.]
Page 22, line 19, at end insert-
“28B TREATMENT OF ORGANISATIONS PERFORMING PARENTING CONTRACT AND PARENTING ORDER FUNCTIONS AS PUBLIC AUTHORITIES
Any person with whom arrangements are made under or by virtue of section 28A for the performance of the functions under sections 25A or 26A shall, in the discharge of those functions, be treated as a public authority for the purposes of the Human Rights Act 1998.””
The noble Viscount said: In many ways, these amendments follow on from the brief debate we had on Clause 23. The first amendment would amend the Housing Act 1996 to ensure that bodies entering into parenting contracts and applying for parenting orders would be required to respect the human rights of those concerned. The second amendment would insert a new section into the Anti-social Behaviour Act 2003 which would require bodies to exercise similar functions in the context of anti-social behaviour orders.
A strong argument has been put forward by Liberty and the Joint Committee on Human Rights that anybody who exercises the powers contracted out under Clause 23 should be required to respect and comply with human rights standards as would the public body which is contracting out the functions with regard to parenting contracts and parenting orders.
The Joint Committee on Human Rights set out the case well, and I hope your Lordships will bear with me if I quote its comments. In paragraph 1.29 on page 13 of its report, it stated:
“The provision in the Bill for contracting out local authority functions of entering into parenting contracts and applying for parenting orders, however, does give some cause for concern on human rights grounds ... The continuing uncertainty about the meaning of “public authority” in s. 6(3)(b) of the Human Rights Act 1998, caused by the Leonard Cheshire decision, means that it cannot be predicted whether the person(s) specified by the Secretary of State as a person to whom the local authority's functions can be contracted out will be treated by the courts as a public authority for the purpose of the HRA. Although the court which must decide whether to make a parenting order must itself act compatibly with Article 8 when deciding whether or not to make the order, it is an additional safeguard for Article 8 rights that the body entitled to apply for such an order is itself a public authority with an obligation to act compatibly with convention rights when deciding whether or not to apply for such an order”.
It states in conclusion:
“In our view it would be desirable if the Bill were to provide explicitly that the person to whom the functions are contracted out is to be treated as a public authority for the purpose of the HRA 1998 in the discharge of those functions”.
I turn to my second amendment. The power to subcontract ASBO functions was created by the Serious Organised Crime and Police Act 2005. The Government have recently consulted on using the power to subcontract ASBO functions to small housing associations run by tenants. I hope that the Minister will update us on the results of the housing consultations on subcontracting ASBO functions and indicate what steps they intend to take.
I cannot see any reason for requiring compliance with human rights standards when a body is deciding whether to enter into a parenting contract with a parent but not when a body is deciding whether to enter into an anti-social behaviour contract with a child. I hope that the Minister will undertake seriously to consider these amendments or, indeed, accept them in his response. I beg to move.
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.
Page 22, line 26, after “person” insert “aged 18 years or over”
The noble Viscount said: Clause 24 replaces Section 153A of the Housing Act 1996 and relates to anti-social behaviour injunctions. Injunctions may be taken out against persons who the court is satisfied,
“is engaging, has engaged or threatens to engage in conduct capable of causing a nuisance or annoyance to powers of various specified descriptions”.
This is a probing amendment that inserts additional wording to ensure that such injunctions can apply only to those aged 18 years or over. The aim is to use this amendment to raise the concerns of the All-Party Parliamentary Group on Children, which highlighted in its child impact statement that it appears, dating back to case law from 1991, that injunctions may not be taken out against under-18s because a breach can lead to imprisonment for contempt of court, a penalty which is currently not available to young people. Can the Minister clarify whether that is still the case? If it is, there is cause for concern that the definition of anti-social behaviour in this clause describes a threshold of behaviour that is arguably lower than that in Section 1 of the Crime and Disorder Act 1998. I beg to move.
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]:
Page 23, line 39, at end insert “on bail”
The noble Baroness said: In speaking to Amendment No. 138A, I shall also speak to Amendments Nos. 138B to 138G, which are grouped together. Amendments Nos. 138A to 138C deal with Clause 25(6):
“Where a person is arrested under subsection (4)—
(a) he shall be brought before the court within the period of 24 hours beginning at the time of his arrest, and
(b) if the matter is not then disposed of forthwith, the court may remand him”.
The remainder of the amendments affect Schedule 8.
These amendments look at the possible blurring of the line between civil and criminal law which could increase the use of custody inappropriately. Our amendments would remove the court’s power to remand a person in custody if they were arrested for a breach of an anti-social behaviour injunction. The court’s power to remand a person on bail where he had breached such an ASBI would not be restricted.
If violence was involved, the conduct ought to be classified as a criminal offence. However, our prisons are bulging, more so now that more than 6,000 ASBOs have been issued and, according to the Howard League for Penal Reform, 40 per cent of them are breached. There are cost implications to legislation that may draw more people into custody. As the Howard League points out, there are risks of overcrowding in local prisons and of an over-harsh remedy for people who would otherwise not be taken into custody at any stage. That seems to undermine the whole value of such alternative means of implementing criminal justice and tackling anti-social behaviour as anti-social behaviour orders, parenting contracts and the like. I beg to move.
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]:
Page 24, leave out line 28 and insert “and Community Safety”
The noble Lord said: I wish to oppose the Motion that Clause 28 stand part of the Bill and to speak to Amendments Nos. 139, 144, 148 to 171 inclusive and to Amendment No. 195.
The aim of the amendments is quite simply to strike out the words “and custody” and any reference to Her Majesty’s Inspectorate of Prisons from the Bill, and to try to persuade the Government to think again before committing what I and a number of other Members in all parts of this House and the other House quite honestly regard as a wilful act of extreme folly. I do so against an unfortunate background for a Bill of such importance. I quote from Miss Lynne Featherstone in the other place:
“It is a great tragedy that we did not have time to debate the inspectorates. The changes to the prison inspectorate hold dangers for prisoners in future. That inspectorate casts a light where no light shines through its expertise and independence, both of which will be compromised in a joint inspectorate. The chief inspector of prisons, Anne Owers, said that it would be a dilution of all the special protection for prisoners. Well trained prison inspectors can spot human rights abuses in a way that will not be possible if the inspectorates are merged. I am sorry that we did not have time to discuss a joint amendment to provide that prisons were not included. Prisoners need special arrangements to protect them.
“Sadly, we are now dependent on the other place to put into the Bill all the proposals that the Government would not accept—amendment after amendment … We tried to work with the Government but all our good work and good intentions were rejected, so it is with a heavy heart that I leave it to the other place to make amends”.—[Official Report, Commons, 10/5/06; col. 435.]
We now come to the making of the amends. I have mentioned before in this House that I find a difficulty in having been Chief Inspector of Prisons, because of the suggestion that I would say what I am going to say anyway. I am not going to do that; I am going to call in support of my amendment the words of other people, because that perhaps is more powerful.
In working up to today, I have been absolutely staggered at the size and variety of my postbag and the numbers of people who have telephoned and spoken to me. Three people who I had never met before contacted me on my way to the House today. Last night, it was teachers, governors and parents at a granddaughter’s school. Prison staff, prisoners and many who work in prisons are all asking a very simple question: “How could they be so stupid?”. What business would throw away its only source of independent and objective quality assurance? As a solider, I honestly cannot comprehend throwing away an internationally recognised asset at a time when the criminal justice system needs all the help that it can get, particularly when that asset is proven and trusted by the public to produce unfudged facts about what is actually happening rather than what people would like to happen.
I have said this before but, sadly, the Government’s record of listening to an independent and objective inspection and to the recommendations and advice that it gives is not good. I am somewhat cynical about the protestations in the policy statement. Only recently, all the warnings about foreign national prisoners were ignored, and look what happened. Last week, we had the Feltham inquiry, which again showed that warnings had not been listened to. I just hope that the attempt to put the Inspectorate of Prisons into a merged group is not a deliberate attempt to silence the inspectorate.
The record of the prison inspectorate includes exposing what the Prison Service’s own regulation and audit did not. Sadly, it is followed always by the explanation that since the inspection things are better, so we should not worry. There were pregnant women in chains in Holloway; assaults by prison staff in the segregation unit at Wormwood Scrubs; outrageous behaviour in the segregation unit at Wandsworth; and mental health treatment that was utterly disgraceful in Brixton, to which I brought the director-general so that he could see it for himself and not doubt it. There is a terrible performance by a number of young offenders’ establishments. Most recently, Woodhill prison was so bad that it had to change the governor, who had been meant to be running that prison.
So I come to the suggestion that all the talk that everything will become stronger and better under a merger is viewed with considerable cynicism. I ask everyone who is responsible for that policy to make certain that they understand that this proposal is flawed, because it does not come from a deliberate examination of the inspection of the criminal justice system or any suggestion that the prisons inspectorate has failed. It comes from a statement made by the Chancellor of the Exchequer in his Budget speech. The name of the game has been given away in page 22 of the policy statement about the new inspectorate, which states:
“The Government is minded to move to a single inspectorate”.
In the Army, we had a phrase, “situating the appreciation”. It meant that you decided what you were going to do and then you wrote a paper around that, explaining why that was the only suitable course of action. When I examined that policy statement, I discovered that there were eight options, of which only one was chosen. But option 7 is perfectly reasonable—it is to leave things as they are as regards prisons inspection and to merge the other four inspectorates. I can see the value of merging the other four, because they are the inspectorate of the Crown Prosecution Service, the Courts Service, the police and the probation service, and they have to work together on a day-to-day basis. Therefore, it is reasonable to suggest that their inspections should be put more closely together. However, the inspection of prisons and the treatment and conditions of prisoners have nothing to do with that.
When I went on inspections, I used to take with me a team consisting of a psychiatrist, a GP, nurses, pharmacists, dentists, drug treatment specialists, education inspectors from Ofsted and the Adult Learning Inspectorate, social services inspectors—if I went to see juveniles or mother-and-baby units—health and safety and fire inspectors, civil engineers and experts in gardens and farms. Not one was from the Crown Prosecution Service or the courts, and only occasionally did I take people from the probation service, although I worked with them on thematic reviews. I once took a policeman with me when I went to see the work of the RUC in the Maze. I also worked with the DTI’s inspectorate of the security industry in looking at matters to do with private prisons and escort arrangements.
Therefore, I would be grateful if the Minister could say just how she envisages the time of the new deputy chief inspector of justice, community safety and custody working, other than their going on doing what is done now to inspect prisons, as required, and making available from time to time people to do other things, which I did when inspecting social services locations or helping elsewhere—in other words, maintaining the status quo.
In Section 52 of the Prison Act 1952, there is already a perfectly good description of how inspections should be carried out and it does not need to be changed. The Act was amended when I took over responsibility for detention and immigration centres. If you want the Chief Inspector of Prisons to take on the inspection of cells in police stations and courts, why not make a simple amendment? It does not need a great merger.
It is also of concern that a number of words are being lobbed out—I have mentioned one, which is “modern”. What does the Minister mean by “modern”? In her introduction to the policy statement, she states that she wants to have inspections that are “strongly led”. Does she not think that prisons inspection has been strongly led? She says that she wants it to be “forward looking”. How can it be more forward-looking? Why has so little attention been paid to the recommendations? I do not know.
There is another confusion under the new proposals. Paragraph 265 of the Explanatory Notes says:
“In contracts to inspection of a defined list of institutions the Chief Inspector will be under a duty to inspect the operation of certain broadly defined systems”.
That is not the purpose of prison inspection; it is all about institutions. Frankly, I am at a loss to say anything other than that the Government were minded to act because of what the Chancellor said, and they wrote a policy statement to satisfy his words, not to satisfy the needs which have been identified for so long.
I have spoken only about the inspection of prisons but an almost more serious matter, which I mentioned at Second Reading, is now upon us—that is, our requirement to have an independent monitoring organisation to satisfy the protocol on the prevention of torture, which we have signed. We have come up to the requirement according to all the officials who are responsible for seeing that that independent arrangement is in place. The only place in the world where it is in existence is here, so why are we throwing it away? The report of our own Joint Committee on Human Rights states very clearly:
“In light of the above … the absorption of HM’s Chief Inspector of Prisons into a single criminal justice inspectorate, without the specific guarantees that we have mentioned, would not be compatible with the requirement of the Optional Protocol … that there be independent monitoring of places of detention”.
If we have it, why throw it away? We would only have to invent another, and that seems to me utterly pointless.
On the same subject, the president of the European Committee for the Prevention of Torture has said that the task of inspecting the treatment and conditions of persons deprived of their liberty is of a different order from inspections of other activities carried out in relation to persons not in custody, and that it would be ironic if, at the very time when the world looks to the United Kingdom for a prime example of an independent prison inspection mechanism, the UK were to decide to radically alter this model of good practice.
I could go on, but I hope that, when the Minister replies, she does not repeat what people have been saying to me—that this new inspectorate is going to be so much stronger and better. I ask her not to pretend that a deputy chief inspector of justice, community safety and custody, who is subordinate to a chief inspector and to responsible Ministers and government policy, will be stronger and more independent than a standalone chief inspector who is responsible for arranging both content and method of inspection of all those held in custody, with direct access to Ministers and the public whenever he or she requires.
There is an old saying in the Army: “If it ain’t broke, don’t fix it”. I am not speaking about my time but about my admirable successor, who has done, and continues to do, such a wonderful job. It would be an absolute crime to waste something that we have and, in particular, to remove a priceless weapon from the hands of Ministers—that is, independent and objective quality assurance of what goes on now and for which they are responsible. That is why I make no bones about these amendments sweeping away all reference to the prisons inspectorate and recommending that we go back to option 7, while by all means merging the other inspectorates. I beg to move.
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.
Of course, Ministers do not put it quite like that. Like other noble Lords, I have been looking at the Government’s policy statement Inspection Reform: Establishing an Inspectorate for Justice, Community Safety and Custody. In the summary on page 3, the Government say:
“A focused, joined up and streamlined inspection regime is needed if inspection is to fulfil its aims and provide the independent scrutiny required by Ministers”.
That may be what is required by Ministers, but I judge that that is not what is required by prisoners, those who administer prisons or those who are concerned by their performance. The noble Baroness, Lady Gibson, described the views of the Prison Service. I am not aware that in any of those quarters there has been any call for the activities of the noble Lord, Lord Ramsbotham, or his predecessors to be streamlined. It is a frightening choice of words: one streamlines in order to secure a smooth passage and to minimise resistance.
As for focus, I do not believe that conditions in prisons are of secondary importance. It is conditions in prisons, not the system—as the noble Lord, Lord Ramsbotham, has just put it—that require the inspector’s exclusive focus. However much turbulence the announced and unstreamlined arrival of the inspector may occasion, surely we can all agree that prisons are quite different in character from the other 10 inspectorates at present in the public sector and that they always will be. That can be seen from the extraordinary inappropriateness to prisons of the following sentence in the policy statement:
“A single inspectorate will highlight the perspective of the service user by providing a single fulcrum for assurance and improvement in every aspect of their experience of the delivery of the system”.
That is a sentence worthy of a prize from a chief inspector of reach-me-down clichés.
I do not think that prisoners—whether or not they view themselves as “service users”—will feel reassured in any significant way by the proposed change to the system that has produced Judge Tumim, the noble Lord, Lord Ramsbotham, and now Miss Anne Owers as inspectors of courage and gloriously unstreamlined independence. Instead, will they not see—and be right to see—the heavy hand of the Chancellor? After all, it was he who announced in March last year that the Government intended to reduce the public sector inspectorates from 11 to four. Why the Chancellor? Was the then Home Secretary not available that day?
I respectfully say that the speech made by the noble Lord, Lord Ramsbotham, was the most devastating that I have yet heard in this House. I trust that the Government will think again.
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.