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Police and Justice Bill

Volume 685: debated on Tuesday 10 October 2006

My Lords, on behalf of my noble friend Lady Scotland, I beg to move that the Bill be now further considered on Report.

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

Clause 16 [Conditional cautions: types of condition]:

[Amendments Nos. 64 and 65 not moved.]

Leave out Clause 16.

The noble and learned Lord said: My Lords, I wish to paint in the background of this matter as it is a long time since it was considered in Committee.

I start with the police role in cautioning young offenders. That role was overhauled by the Government in 1998 and put on a statutory basis in the Crime and Disorder Act of that year. But we are not dealing with young offenders today so I say no more about that. The police role in cautioning adult offenders has never been put on a statutory basis but it is of very long standing. It has been regulated by successive Home Office circulars setting out the National Standards for Cautioning Offenders. I believe that the most recent was issued in 2005.

Cautioning has always been a very valuable tool for dealing with low-level offenders. Its essential features are well known: the offender must admit his guilt and be willing to accept the caution. It has always been vital that cautioning rather than prosecuting should be in the public interest. It goes without saying that cautioning does not involve punishment.

The simple caution was always very useful and it still is. Then in 2003 the Home Office came up with an idea that cautioning could be made even more useful in some cases. It depended on the offender being willing to make reparation for his offence and on the victim being willing to accept reparation. The idea was that the offender and the victim should be brought face to face—always if the victim was willing—and the offender would then make amends either by repairing any damage which he had done to the victim’s property, paying the victim compensation or, indeed, just apologising. The evidence was that this,

“can reduce reoffending and improve victim satisfaction with the criminal justice system”.—[Official Report, 29/10/03; col. 362.]

Those are not my words but those of the noble and learned Lord the Attorney-General on Report in 2003. He referred then to this as a very exciting new idea. I agree that it was. The criminologists refer to it by the name of “restorative justice”. But I do not believe that anyone ever thought that conditional cautions of that kind would be useful except in a small number of cases.

The other condition which could be imposed, again with the consent of the offender, was that he should undergo some form of treatment. Again, it would obviously apply in only very few cases. The code explaining the purpose of conditional cautions, as contained in the 2003 Act, stated at page six:

“Rehabilitation: this might include taking part in treatment for drug or alcohol dependency, e.g. attendance at self-help groups”

and so on. Attendance at anger management courses is another example given.

On reparation, the code says that,

“this might include repairing or otherwise making good any damage caused to property (e.g. by cleaning graffiti), restoring stolen goods, paying modest financial compensation, or in some cases a simple apology to the victim.”

That was the idea, and, if I may say so, a very good idea it was. If, during his speech in 2003, the Attorney-General had been asked, “Why do you not extend conditional cautions so as to include the possibility of imposing a fine?”, he would, I believe, have answered: “But that is the very opposite of what we are trying to do. How can a fine help the victim? How can a fine rehabilitate the offender? There is nothing restorative in a fine, and there is no reason to suppose that it will reduce re-offending. If a fine is the appropriate remedy, it should be imposed in the usual way by magistrates”. I do not know whether that is the answer that the Attorney-General would have given in 2003, but it is very different from his answer now. I need not say that I find his 2003 speech a great deal more persuasive and convincing than the one he made in Committee on 6 July, which I have read with the greatest care.

I oppose Clause 16 on the following grounds. First, it is wrong in principle for the prosecution to determine the level of punishment. Indeed, it is wrong for the prosecution to have any say in the sentencing process at all. Sentencing has always been for the courts, at least since the Bill of Rights of 1689. No amount of Home Office guidance on how this proposed fine should be made a condition, and no amount of safeguards that could be built into the Bill at this or any stage, can get away from that basic objection.

The point can be illustrated from a very different field: the mandatory life sentence for murder. Traditionally, the Home Secretary justified his claim to have the last word on when a prisoner should be released on the ground that he was not exercising a sentencing function at all but he was only determining when the prisoner should be released. That fallacy was exposed finally and firmly by the House of Lords in Anderson, of which I am sure the noble and learned Lord the Attorney-General will be well aware. At the other end of the scale, in support of this provision, reliance is sometimes placed on the fixed penalty for parking illegally or for not wearing a seat belt. But fixed penalties are entirely different. The amount is fixed by statute or by-law; it does not in any way involve the prosecution’s discretion.

My first objection being the straightforward objection on the ground of principle, my second is that the existing conditions under the 2003 Act are entirely consistent with the basic concept of a caution. Punishment, however, is entirely inconsistent with that basic concept. Indeed, the notion of a punitive caution could almost be said to be a contradiction in terms.

When the Government say in their various documents that they are only extending conditional cautions, widening their scope or filling a gap, it sounds harmless enough. But it is not harmless, because Clause 16 does much more: it creates something “radically new”. Those are not my words, but those of Hazel Blears in Committee in the other place, where she said that this new concept could affect as many as 30,000 individuals a year. My objection is that the two ideas, a caution and punishment, are inconsistent with each other.

Thirdly, I fear that if fines are capable of being made conditions, they will soon in practice replace the other conditions, because they are much easier to monitor and enforce. If that happens, all the good done by the 2003 Act, which should continue, might be driven out by the bad done by the 2006 Act.

Fourthly, if we are introducing something “radically new”, as Hazel Blears said—and I certainly believe that—should we not have had proper consultation before we were asked to do that? The noble and learned Lord the Attorney-General has expressed regret that there was not more consultation, but he says that he and the Lord Chancellor discussed the matter with judges, magistrates and officials—although I do not know who they may be. I, too, have discussed the matter with judges and magistrates and I found no one in favour of this proposal—certainly not the magistrates, judging from their views expressed as recently as March 2006; nor do I read Lord Justice Auld in his 2001 report as favouring what is now proposed. In its recent paper, Liberty made a strong case against the proposal.

Lastly, there is surely an overwhelming case for waiting until the results of the 2003 experiment are available, so that we can know whether it is working. What is the urgency? The answer, we are told, is the pressure on magistrates’ courts and the need to divert 30,000 cases at whatever cost in terms of constitutional principle. Conditional cautions under the 2003 Act were progressive, beneficial and based on principle. The current proposal is not. It is yet another example of expediency driving out principle, and I hope that we shall oppose it. I beg to move.

My Lords, I have added my name in support of the noble and learned Lord, Lord Lloyd of Berwick. During our debates in Committee in July on conditional cautions, I made it clear that we continued strongly to support the provisions launched by the Criminal Justice Act 2003. That, as the noble and learned Lord pointed out, introduced conditional cautions intended to facilitate rehabilitation of offenders or ensure that they made reparation for the offences. But now the Government wish to impose conditional cautions as a punitive measure.

My colleague, Nick Herbert, expressed our concerns during the debates in another place about the extension of cautions to punishment, but at that time, in spring this year, we said that we would not oppose the clause while we assessed the impact of the new proposals on cautioning. I put on record in Committee our concern about developments in government policy since the clause was debated in another place. This summer, the Prime Minister has announced that he intends dramatically to increase the use of administrative punishment and avoid using the courts.

We are deeply concerned that the Government are taking our judicial system down a route that may be convenient to them but that certainly has not been proved to serve the victim and the public well. As the noble and learned Lord made clear, there has as yet been no proper public debate on this matter. He put forward strong arguments for removing this clause.

The Minister is of course aware of the concerns expressed about these measures by the Magistrates’ Association, for one, which I thank for its courtesy in coming to the House during the Recess to provide me with further briefing on its views on the matter. The association remains obdurate against the inclusion of the clause.

Fair trial safeguards and the involvement of the independent court in the delivery of punishment are also in the wider public interest and in the interest of victims of crime. The rigours of an open trial help to ensure that the right person is convicted and demonstrate publicly that justice is being done and that the state will not accept criminal behaviour. An open trial provides a public warning against offending. A publicly observed objective process in the criminal justice system can also be of great value for victims. I do not see how punitive cautions would deliver those additional benefits.

If we were to remove this clause today, we would keep to the current legal position on conditional cautions. The system has not yet been running long enough to prove its own merits or demerits, but we certainly hope that it will prove to have merits. Indeed, in Committee, when I asked the noble and learned Lord the Attorney-General about the reoffending rate for those who have accepted conditional cautions, he said that,

“the scheme has been going for an insufficient length of time to give a meaningful answer to that question”.—[Official Report, 6/7/06; col. 378.]

He also said that, if he could improve on that answer, he would write to me, and I am grateful to him for so doing at the end of last week. However, as he will know, my gratitude has to be somewhat tempered by the fact that his letter basically said: “I’ve got nothing more to tell you. There isn’t sufficient information to give a robust interpretation of the impact of the 2003 measures”. I have the letter in front of me and I give a précis of it, but the noble and learned Lord, while trying to be helpful, was not able to provide robust information to persuade me that the original cautions are working in the way that we hope.

It seems only sensible that, before further changing the law on conditional cautions, we should wait to see how the current law has operated in practice across England and Wales. After all, as the noble and learned Lord said, when Hazel Blears introduced these matters in another place she acknowledged that they were an “innovative and radical departure” from the current law. That was way back in the spring—on the morning of 23 March, at col. 167. I have nothing against innovation, radical or whatever; if it is done for the right reasons, I would welcome it. But the Government have not yet proved their case on Clause 16, particularly in the light of the policies that they have headlined over the summer. They have themselves accepted that this is a significant matter that requires wider public discussion and consultation. I noticed that the DCA’s paper Delivering Simple, Speedy, Summary Justice, which was published in July this year, says at paragraph 7.7 on page 40, that,

“we need to engage with the judiciary, criminal justice practitioners, communities and the public in general about where the balance lies between simple and immediate responses to low level misbehaviour and fast, efficient and modern court processes”.

I would certainly agree with such a consultation, but the wider debate called for in the DCA’s paper has not yet taken place. If we truly value accountability to the public and the victim, that consultation should proceed before we plunge in and include the clause.

My Lords, I support the amendment. The extension of conditional cautions beyond reparation and rehabilitation to include wider punitive conditions is highly undesirable, as we have heard expressed so eloquently by the noble and learned Lord, Lord Lloyd. We entirely endorse the current principle of conditional cautions, which is that the only conditions that may be applied are those that will facilitate the rehabilitation of the offender or ensure that he or she makes reparation for the offence.

That underlines the very important principle that cautions are meant to be an alternative to entering the criminal justice process, and it is also a means of encouraging the person not to reoffend while still at the lowest level of offending. Indeed, I believe that reparation and rehabilitation constitute constructive punishment. Making good damage to a person's property or being required to attend a rehab clinic, for example, is much tougher than simply paying a fine, which allows the offender to walk away from the reality of what he has done.

Every means of keeping people out of the criminal justice system is to be encouraged, particularly where younger people are concerned. Never has this been truer than it is today, when people are criminalised earlier and earlier compared with 10 years ago, as is well documented. That has, in turn, contributed to the catastrophic situation in our prisons today, which is due in large part to the slippery slope on which petty offenders find themselves at an early stage and to the Government’s misguided belief that prison is the only way to be tough rather than their recognising the failure that it largely is. It is important that we find ways of diverting people from offending at the earliest possible stage, which is why the conditional caution is such a constructive tool in the process.

However, as we have already heard, the extension of conditional cautions to include wider punitive conditions is another matter entirely. This clause allows inclusion of specifically punitive conditions, which at the moment might include a fine of up to £500 or a community-based order of up to 20 hours, described, as has already been heard, by Hazel Blears as an innovative and radical departure affecting up to 30,000 people a year.

We have already voiced our concerns in this place about this extension of administrative justice to punishments imposed by the police and prosecutors rather than the courts because we believe that, as a principle of justice sentencing and punishment should be imposed by an entirely independent tribunal and not a biased prosecutorial authority. There is a real risk that these proposals could be seen as allowing the police and the CPS to act as investigators, prosecutors and judges. In addition, there is a further risk that the powers could be used to deal with high-level offending. My concern is how the proposals could affect younger people or those with special needs, who are very unlikely to understand or fully appreciate the implications of what is being offered and will have little idea of where to go for legal advice. Such people are, by definition, vulnerable, and a fear of prosecution and, in particular, the idea of having to go to court is enough for them to agree to anything, whether they are guilty of anything or not.

Any extension of more punitive conditions not only has alarming implications for the extension of administrative justice in this country but runs a risk of tipping vulnerable people into the criminal justice system. I feel that that is an unacceptable price to pay for simple, speedy, summary justice. It is not only potentially hazardous to the life chances of such petty offenders but it has serious implications for the management of the criminal justice system as a large number of people are likely to be sucked into it. They, society as a whole and our system of justice risk being damaged by it.

We entirely endorse the Government's policy to make reparation and rehabilitation a central feature of policy, and it seems to us that the current legal position on conditional cautions is a creative way of embedding it. We support the amendment and the retention of the current position on conditional cautions.

My Lords, this group includes government Amendment No. 145, and I shall speak to that as well as responding to the speeches on whether the clause shall stand part. I shall do that first as, in part, it responds to at least one of the points made by the noble Baroness.

A concern touched on in Amendment No. 65, which was not moved by the noble Baroness, Lady Anelay, relates to the financial limit that is set out in the Bill and how that might be changed. I detected agreement between us on two points: first, that this policy—certainly this is the Government’s intention—is not intended to deal with high-level offending but with low-level offending and, therefore, it is right that there should be a financial limit; but, secondly, it was also acknowledged that financial limits, when set in primary legislation, need to have a mechanism for adjusting them. We responded to the concerns expressed about how that adjustment should take place by recognising that it would be appropriate to have as an additional safeguard for a change in the financial limit that no change should be made save by order subject to affirmative resolution.

Amendment No. 145, to which I now speak, seeks to ensure that any changes to time or financial limits on punitive conditions are subject to the affirmative resolution procedure. Therefore, it would require, as is obvious, any changes to those limits to be subject to a vote in both Houses of Parliament. That applies to the financial penalty and to the number of hours that an offender could be required to attend. I shall move that amendment formally when it is called.

I turn to the substance, which is the conditional cautioning scheme. I recognise, with appreciation, the support that has been expressed in all three speeches for the concept that we tried to introduce and have introduced in the Criminal Justice Act 2003. We believe that it was not enough to have simply a stark choice between a caution, which amounts to saying, “Don't do it again”, and an appearance in court, with all that that entails and with a penalty attached to it. We wanted to find ways to deal with low-level crime fast and effectively that would meet the needs of everyone, including the needs of victims when they are present. I believe the noble and learned Lord, Lord Lloyd, reads too much into what was said previously to say that this was all about victims. Certainly, a face-to-face meeting with victims is one way of dealing with a disposal, but it is certainly not the most usual way of dealing with a disposal. It certainly is not the most usual way of dealing with conditional cautions.

We also wanted to find quick and effective ways of dealing with the offending behaviour of the individual. The noble and learned Lord spoke about the rehabilitative condition, saying that he thought that that would apply to only a very few people. I beg to differ with him. The number of people in this country who commit relatively low-level crime as a result of problems with drugs, with drink and with other issues of that sort, such as anger problems, is quite high. One only needs to visit a magistrates' court any day of the week or, even more so, to visit a police station to see how often those issues arise.

However, once the scheme started to operate, it became apparent to those who were operating it that there were certain limitations in the scheme. The experience of operating it has been positive, but there are limitations in the cases where it can be used. I shall give one or two examples of that in a moment, as I tried to do in Committee when we dealt with clause stand part.

The noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Anelay, spoke of the time that we have had. There has not been enough time to reach any conclusions on the reoffending rate, but the scheme has been operating in parts of the country sufficiently to know that it is well worthwhile—I have had that directly from those operating it, who have also reported to me what the victims involved have said—and that there are limitations in how it works. I do not want to focus on the financial penalty first, but on the other condition referred to: the number of hours worked, which is looked at rather clinically. I shall give a good example, although this is not how it might operate exclusively.

You could come across an offender who has been spraying graffiti around the town. If you can identify the particular place that that offender has been spraying graffiti, you can invite him to agree that, instead of going to court, he will clean it off under the current scheme. That is reparative, because it relates to the specific graffiti he dealt with. Noble Lords might think that a good way of bringing the consequences of his behaviour home to the offender—“If you go around spraying graffiti, somebody must clean it off and you will be that person on this occasion”—and helping with his future behaviour.

However, if there is an instance where the graffiti for which he was responsible cannot be identified, although you know that he was the offender and he admits that he was, or it has already been cleaned off by the wall’s owner, you cannot say “We want you to clean graffiti off another wall instead”. In our view, that is not possible under the Bill because it is not actually repairing the specific damage he did. In terms of the benefit to him of seeing the effect of his offending behaviour, I believe that that would be an appropriate and proper response, although noble Lords may disagree. However, we could not do that without making the amendment.

My Lords, can the Minister explain how that argument would apply in the case of a fine, which is also, of course, covered?

My Lords, I am absolutely not going to shy away from that, and will come to it. It may be at the heart of the issue rather more than the point of work. It is important that noble Lords understand—this is why I take the liberty of explaining it—that the removal of this clause does not just deal with the fine element, but the sort of example I have given: that you cannot ask someone to clear up graffiti without being clear that he is responsible for it.

Where somebody has been drunk and disorderly, causing a nuisance in the community—goodness knows, I am afraid that happens a great deal—one might think that to say, “Right, you should help clear up the street on a Sunday morning, perhaps the street littered with beer cans from the night before”, would be an appropriate response. It would be a good way of bringing his offending behaviour home to him, and a good thing for the community. You cannot impose that under the current conditions. Nor can magistrates impose it, because they have a lower limit of 40 hours for community service, and cannot impose it unless it is of sufficient seriousness, which this would not be. We are missing a whole range of response.

I shall give an example of where the fine is appropriate. We currently have a system under which fixed penalty notices can be imposed by the police not just for driving offences or the sort of thing the noble and learned Lord referred to, but also, under schemes approved by Parliament, for things like drunkenness and public disorder offences. Let us take the example of someone who, on a Saturday night or whenever, drinks too much, comes out of the pub and starts with very bad behaviour. If he kicks in a door, you can invite him to repair the door if the owner of that property wants him to. Some owners of property will say, “We don’t want that person repairing our door. We don’t want him anywhere near our house”. You can suggest to him that he should go on a course to deal with his alcohol or attend self-help groups to deal with anger management. The police could impose a fine without going to court at all. It is important to recognise that, and, contrary to what the noble and learned Lord says, they have discretion—not on the amount, I accept—whether to impose a fine. What you cannot do at the moment is to say, “What this really needs is your agreement to deal with your problem by going on some sort of course, but you also need to recognise the wrongness of your behaviour by paying a relatively modest financial penalty”. You cannot at the moment do both.

The prosecution could give a conditional caution to deal with alcohol management or anger management and the police could impose a penalty. Both those things could happen outside court, but you cannot do both. This provision would enable both to be done.

What are the safeguards? This is important because the first point raised by the noble and learned Lord was a constitutional concern that punishment should be imposed by the courts. I am a little surprised that no noble Lord who has spoken has referred to the fact that this is not an imposition at all. It remains for the courts because no offender will be required to accept a conditional caution. It cannot be imposed on him against his will. He will have free legal advice on whether to accept the condition. If he does not accept the condition, he can simply say, “I will go to court. I will plead not guilty in court”, or, “I will plead guilty in court and I would rather have the court deal with it”. It is not a case of giving the prosecutors the power to punish because it is for the court ultimately to do that. A condition is being offered which differs from fixed penalties, which are a punishment imposed not by the prosecutor but by the police. I give way to the noble and learned Lord.

My Lords, I am grateful to the noble and learned Lord the Attorney-General. Is what he is saying in accordance with how human nature works? Is not the power of the prosecutor, or indeed the police, to say, “We are going to do this to you; of course you can go to court” a very powerful arm-twisting power, and does it not have to be kept under very close control?

My Lords, the noble and learned Lord will perhaps not be surprised to hear that I do not disagree with him about not having arm twisting. That is why the safeguards are important. Let me enumerate them. The first and most important is that nothing can actually be imposed. The offender does not have to admit his guilt. He can go to court. He does not have to accept the condition. He can go to court and leave it to the court to decide. But there are further conditions. This does not apply unless the proposed response is appropriate and proportionate. That is in guidance.

Secondly, the offences for which the conditional caution could be given are limited by guidance, not from the Home Office but from the Director of Public Prosecutions and approved by the Attorney-General. That will not just cover which offences are considered, it will also control the way the scheme is operated. A detailed matrix will be developed following consultation that will set out which offences could be considered for a financial penalty condition and provide guidance on the level of that penalty, again to be approved by the director and me.

Thirdly, before the condition can be proposed, there must be sufficient evidence to prosecute. The prosecutor needs to be satisfied about that. The noble and learned Lord and others will see the distinction, for example, from a fixed-penalty notice for drunkenness which does not involve a prosecutor being satisfied on the evidence; a police officer could just impose it. The House might think it would be better to have the involvement of the independent prosecutor.

Fourthly, one of the key tests to be applied to the decision to offer a conditional caution will be whether it is in the public interest to divert the offender from prosecution. That is clear in the Code for Crown Prosecutors. It identifies cases for a conditional caution as follows:

“while the public interest justifies a prosecution, the interests of the suspect, victim and community may be better served by the suspect complying with suitable conditions”.

Fifthly—I mentioned this point previously and it directly relates to the concerns expressed by the noble and learned Lord, Lord Lyell of Markyate—free legal advice will be available. As I said in 2003, that may be telephone legal advice, but legal advice will still be available to someone as to what is the effect of a condition, whether to accept it and whether that is the right thing to do.

As I said, the conditions must be proportionate to the offence; they must be suitable to the offender; and they must be achievable. I hope that I gave reassurance previously that they would take into account the means of the offender, for example. That will be clearly set out. The offender has to admit his guilt before a condition can be agreed. There is no sanction for breach of a conditional caution. If the offender does not meet the condition, he gets taken to court, not for breach of the condition but for the original offence.

My Lords, to what extent will offenders be given clear notice of the fact that free legal advice is available? Furthermore, what information will be given as to their right to proceed to court to have the matter adjudicated there?

My Lords, both will be made clear to the offender. I have made that plain throughout.

I want to bring my remarks to a conclusion because there is much more business to deal with. I have tried to emphasise, first, why I believe that the current scheme does not deal with cases where victims, the community and the public will benefit from having a speedy response to low-level crime, and, secondly, that substantial safeguards are available to protect against the concerns that have been expressed. I agree with the noble Baroness that all ways—I noted her words—of keeping people out of the criminal justice system are to be encouraged. This is one way to do that.

I want to make one final point. A lot of the debate has focused on the financial penalty. As I have made very clear, that is by no means the whole of it. I believe that there is a strong case for having that financial penalty. However, some of the debate seems to have focused more on the possibility that that might be the only condition imposed. I have given examples of where we would want it to be together with other conditions, but I recognise that that may not be clear from the way that the Bill is drafted. If that is noble Lords’ only concern, we may be able to give further thought to that, but I strongly urge the House not to reject what may be a really helpful way to deal with low-level offenders in the interests of everyone, without infringing constitutional principle, because the constitutional principle is that, at the end of the day, it is the courts who decide. The courts will decide here, because they are not being excluded in any way. The offender can go to court if that is what he wants to do.

My Lords, I regret to say that the noble and learned Lord the Attorney-General has not dealt to my satisfaction with the basic point here, which is that it is contrary to principle that the level of sentencing should be set by the prosecution and not by the courts. In one sense, that may be regarded as a small point but, nevertheless, it is one of some importance on which I wish to take the opinion of the House.

*[See col. 147]

Clause 18 [Local authority scrutiny of crime and disorder matters]:

Page 13, leave out lines 31 and 32.

The noble Viscount said: My Lords, this amendment seeks to remove the exclusion of county councils from the definition of “local authority” in Clause 18 and therefore include them within the community call to action.

As noble Lords will be well aware, county councillors are democratically accountable—I certainly do not have to say this to the noble Lord, Lord Bassam—to their local communities and work closely with local partners to ensure their community’s needs are met. These include youth offending teams, drink and alcohol teams, as well as social, education and environmental services, not to mention their work for local strategic partnerships and local area agreements. Indeed, the county council is a responsible authority for community safety services under the Crime and Disorder Act 1998 and plays a key role in this area, as the Home Office review of partnerships arising from the 1998 Act acknowledges, and yet this has failed to be translated into the Bill.

The Minister suggested in Committee on 6 July 2006 (Hansard, col. 410) that the inclusion of county council members in the community call to action could result in overlap, duplication of effort and confusion about local accountability. I put it to your Lordships that including county councils would enable powers to deal with all implementation issues and, as a result, encourage the development of local approaches which are both flexible and responsive to local needs. Inclusion will enable discretion and scope for existing local arrangements to identify where issues are best dealt with.

The County Councils Network (CNN) has suggested that the confusion the Minister referred to is more likely to occur if the exclusion of county councils is maintained. The reason is that the current proposals make community disorder reduction partnerships accountable to the district council’s scrutiny committee. That would mean that the county council services exercised through the CDRP become nominally accountable to a district council committee, therefore infringing issues of accountability.

The CNN goes on to highlight:

“In many counties there are up to eleven or twelve districts and therefore the same number of CDRPs, raising the possibility of the Police and County council being accountable to twelve different bodies”.

Surely this has the potential to lead to more confusion and less direct accountability, not the other way round. For example, county councils hold regular surgery sessions to meet local people, at which community safety issues are often raised. If excluded from the CDRP, a county member would not be able to address an issue about which he is likely to be knowledgeable. Instead, local people may face delay and frustration for a further referral elsewhere and a lack of cohesion in local service delivery.

Involving county council members would instantly strengthen local democratic arrangements and enable a read-across to the functions of larger service providers and partners such as the police. By excluding county councils, we are excluding local representatives for 80 per cent of England. I beg to move.

My Lords, Amendments Nos. 68, 70 and 73, which complete the selection initiated by my noble friend Lord Bridgeman, seek to apply the requirements of Clause 18 for local authorities to set up oversight and scrutiny committees for crime and disorder matters and what we have learnt to call the “community call for action” to the particular circumstances of the City of London.

It will be no surprise to your Lordships to learn that specific provision is needed. “Unique” is an overused description; I know, however, from having had the honour to represent the City for 24 years before entering your Lordships' House—which made me the third longest serving MP for the City since 1283—that the City can genuinely be described as a class of one. I am conscious that your Lordships' House is anxious to proceed to more contentious matters, but the uniqueness of the City of London, in more senses than one, confers certain complications, which I need to explain and hope to resolve.

I do not presume to offer your Lordships a magnum opus on the City’s constitution, but it is worth recording that the City is a corporation by prescription and not a creation of Parliament. Within the City of London, one of the three executives of the City Corporation, namely the Common Council, has, however, been given the functions conferred elsewhere on the statutory local authorities since their creation as part of the 19th century reforms for local government. It is appropriate to mention, because it has particular relevance to the need for these amendments, that the City’s internal structure bears little relation to that of a local authority. It is also worth noting, bearing in mind that the subject matter is crime and disorder, that the City itself incorporates the functions of a police authority.

These features are important because when what is now Clause 18 was inserted in Committee in another place to capture councils not operating the new style executive arrangements, with which those of your Lordships with experience of local government will be familiar, the then Police Minister, Ms Hazel Blears, noted that the clause was intended to be all-encompassing as an alternative to seeking,

“lengthy drafting amendments to the Bill”.—[Official Report, Commons Standing Committee D, 23/3/06; col. 204.]

Inherent in the intention appears to have been the assumption that the local authorities to which the clause was to apply would have an overview and scrutiny committee which the clause would complement. That was a reasonable assumption for local authorities in general because even where a local authority has not adopted the new executive arrangements, which most are required to do under the Local Government Act 2000, regulations still require those authorities to establish an overview and scrutiny committee.

That is not, however, the case for the City of London. Unlike local authorities, the City does not have an oversight and scrutiny committee. Oversight and scrutiny functions are applied by the Common Council itself, and through its committees and sub-committees. There is therefore no existing structure to which the requirement in Clause 18 can relate. A practical consequence of applying the clause would be to require the City to reform its existing committee structure and its membership. It would require the creation of another committee to scrutinise crime and disorder matters, which are overseen also by several other committees, including the committee overseeing the police functions. It would result in confusion and duplication of functions between committees, and would certainly not enhance the efficiency of oversight and scrutiny of crime and disorder issues.

As for the detail, I shall concentrate on Amendment No. 73. Amendment No. 68 to Clause 18 and Amendment No. 70 to Schedule 6 are consequential. The object of Amendment No. 73 is to achieve the scrutiny and accountability requirements anticipated by Clause 18, without requiring the creation of additional, unhelpful administrative machinery.

Subsection (1) would confer on the Common Council the powers of oversight and scrutiny conferred by Clause 18(1), but without requiring the City to set up a new committee. These powers would be exercised through the Common Council's existing administrative structure. Subsections (2) and (4) would apply the requirements of transparency contained in Clause 18(2) and (7).

Subsection (3) would apply the requirements of Clause 18(3) in respect of members of local authorities to the members of the Common Council. Subsection (5) would impose the same obligations for follow-up action on crime and disorder matters as those imposed by Clause 18(8).

Subsection (6) applies the provisions of Clause 19, dealing with guidance and regulations issued by the Secretary of State, but subject to any modifications necessary to deal with the City's administrative structure. Subsections (7) and (8) set out the definitions.

The new clause admittedly extends the text of the Bill by a few lines, but the need to provide for the City's particular circumstances is not unusual. It is perhaps worth noting that, in relation to oversight and scrutiny in health service matters, specific provision was made to deal with the City through Section 10 of the Health and Social Care Act 2001.

I understand that these amendments have emerged following productive discussions between the City and Home Office officials, which I take this opportunity to acknowledge. I hope that the Minister will feel the amendments to be a reasonable way to approach the application of Clause 18 to the City.

My Lords, there are two distinct sets of amendments here, which I shall deal with in turn. I turn first to the amendment moved by the noble Viscount, Lord Bridgeman, with his customary courtesy. I know that he will not be terribly happy with my response, but I trust that he will not take it as a slight—it is certainly not intended as a slight in any sense on county councils or their network.

The purpose of the community call for action is to enable a person to raise community safety issues of local concern with local councillors. In a two-tier area, this simply should be a district councillor responsibility. My view today is the same as it was in Committee; that is, to do otherwise would lead to public confusion, as a person could raise their concerns with county and district councillors.

It needs to be recorded that the community call for action is designed to enable the public to engage with local issues of an essentially operational nature. These issues are best handled at the district level. To extend the definition of “local authority” for the purposes of this legislation to include county councils could also bring strategic issues within the ambit of the community call for action, which has never been our intention—nor is it the intention of the draft legislation.

Of course, that does not rule out county council involvement. County councils will have a very important role. If the issue raised by the community call for action relates to matters within the sphere of the county council, it would be reasonable and proper to expect the district councillor to whom the matter was referred to discuss the issue with the local county councillor or the county council itself. Furthermore, I would also expect a county councillor to be co-opted on to the district council overview and scrutiny committee so that the views of county councillors can be fully taken into consideration in any committee report.

Given the assurance that the county council voice will have the scope to be heard, I hope that the noble Viscount will feel able to withdraw his amendment. County councils will be well looked after in these arrangements and their constructive role will be brought within the ambit through the route that I described.

I now turn to the issues quite properly raised by the noble Lord, Lord Brooke of Sutton Mandeville. I have good news for him, because not only do I fully appreciate the points that he made about the committee structure that already exists in the City of London, but it is certainly not the Government’s intention to require the corporation to create a new scrutiny committee that cuts across existing arrangements. We are more than happy to accept these amendments, in principle.

The important point is that the crime and disorder reduction partnership in the City should be subject to appropriate scrutiny as with such partnerships elsewhere, and that there is an appropriate committee that can consider the community call for action. I am sure that the noble Lord will appreciate that. It is not an expression of arrogance on our part, but we would like to offer our own draft of the noble Lord’s amendments and get the parliamentary draftsmen to look at the drafting of a suitable amendment. If the noble Lord is happy not to press his amendments to a Division—he has already conceded that they are defective in part—we will happily bring forward our own at Third Reading and perhaps even table them jointly with the noble Lord.

So I can offer some comfort to the noble Viscount and a great deal more comfort to the noble Lord, Lord Brooke of Sutton Mandeville.

My Lords, I am most grateful to the Minister for attempting to reassure me about the county councils, but there is a big difference between discretionary involvement of county councils and statutory involvement. However, I shall read the Minister’s remarks carefully in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

Leave out Clause 18.

The noble Lord said: My Lords, in moving Amendment No. 69 I wish to speak also to Amendments Nos. 71, 72 and 74. If passed, they would have the effect of deleting Clauses 18, 19, 20 and 21. While that might seem like radical surgery to the Bill, it is proposed with the intention of being entirely helpful to the Government.

In your Lordships' House we all know that the Home Office is in the vanguard of progressive government thinking and that the way in which government operate is totally seamless, that different government departments talk to each other and that proposals emerge having been considered by all the relevant parts of government and parts of the government machine. That is the normal process, but I have the suspicion that on this occasion that process was perhaps not as perfect as would normally be the case and that the vanguardism of the Home Office has gone away at a slight tangent from some of the other thinking that I understand is going in the Government.

We have been waiting for some while for a White Paper on the future of local government, and it may have been that we would have had that White Paper in advance of our detailed consideration of these clauses if things had gone according to plan. However, that has not yet happened, although one understands that the White Paper is imminent. I am told that drafts of it may exist and may shortly be considered by the Cabinet.

Perhaps we are being slightly premature in bringing forward changes in the way crime and disorder reduction partnerships, scrutiny committees and co-options work, in advance of knowing with clarity what the Government will be proposing more generally for the future of local government. For example, we have just heard some points being raised about the position of county councils and the Corporation of London. It may be that those matters are dealt with effectively as part of the forthcoming White Paper.

I assume—because it would be very surprising if a White Paper on the future of local government did not consider such matters—that we will be looking at the function and role of the local elected representative. Implicit in these clauses is the new community call for action. I think this could be a useful step forward, in terms of giving a new explicit role to local councillors as advocates for their local communities, working with communities to move along public services.

If that is to be the case, however, and if the stories that are emanating about what may or may not be in the White Paper are true and similar community calls for action are to apply to other aspects of public services, we need to see whether the arrangements proposed in this Bill for the way crime and disorder matters will be treated can be read across effectively into the other areas of public services that might be affected by similar powers. Perhaps the Government are being premature. It may be that in a week’s time the Minister will be able to stand up and tell us what will be in the local government White Paper, but my understanding is that it is unlikely that will happen in the next few days.

Given that the purpose of the White Paper, we are told, is that there may be substantial legislation on the future of local government and its precise internal arrangements in the next parliamentary Session—although obviously we cannot prejudge what might be in the Queen’s Speech—it would surely be sensible to round up all these provisions as part of that at the same time. For example, there are some provisions in these clauses for co-options, and apparently there will be regulations to specify what those might be. At various times noises have emerged from the Home Office suggesting that police authorities should have a co-opted place on overview and scrutiny committees dealing with crime and disorder matters in the various local authorities in their area. Passing over for a moment the workload implications of that for police authority members, you then have to consider the relative status of a co-opted member of a police authority—or, for that matter, a co-opted county councillor sitting on a district council overview and scrutiny committee. What will be the relative status of those individuals compared with the sitting members of that principal council’s role in terms of overview and scrutiny? Are you not diluting the representative, community advocacy role that we understand the Government want to create as part of the local government White Paper?

Those matters have to be thought through very carefully. No doubt there are officials in government departments who have had towels around their heads and considered all these matters, and are coming forward with proposals of an intellectual clarity and brilliance that we will all wonder at when we hear them. In advance of seeing those proposals, however, it seems strange to set up a process that involves unspecified co-options with unspecified status. It is unclear where they will fit in.

We have here some convoluted, rather obtuse wording that does not work well. It is trying to fit square pegs into round holes, and they do not really fit. It is hard to see how the clauses will operate. There will clearly have to be reams of regulations afterwards to try and turn them into something that will work at an operational level. In the interests of trying to help the Government out and avoid a situation where we legislate in the next Session to unpick bits of this Bill because the prevailing thinking on local government has moved on in that time, would it not be better for the Government to wrap all this up together, to think again and not to press these clauses at this time? I beg to move.

My Lords, the proposals coming out of the CDA review, as encapsulated by this Bill, are looking, as the noble Lord, Lord Harris of Haringey, has so eloquently put it, more unworkable and more and more resource intensive. The wording on how CDRPs will function is just plain confusing. It tries to articulate a split between the levels of the CDRP that will set strategy and the levels that will deliver on this strategy. But because of the reluctance of the Government to commit anything to primary legislation, in the name of flexibility, this has been left so vague it is obtuse.

The community call for action is intended to be a mechanism of last resort, but how can we be sure that it will not be a mechanism of first resort unless safeguards against this are placed in primary legislation? And if not there, then how are safeguards to be managed and guaranteed? How do we know that overview and scrutiny committees will not be overwhelmed by matters referred to them, whether genuine or motivated by political skulduggery, extremist agendas, single issue obsessions or just plain nuisance value? How will these committees be trained, resourced and supported if there are to be many hundreds of them at district level as is proposed? Who pays—and does this represent value for money?

Police authorities will also have a particular problem, as the noble Lord, Lord Harris, has pointed out. Most consist of only 17 members, but they must find members to sit on all the strategic level CDRPs in their area and different members to sit on all the overview and scrutiny committees that will link to the CDRPs in their area. A case study that the Association of Police Authorities has supplied to me illustrates what would happen in Surrey. It states:

“There are currently 11 CDRPs in the county area discharging funds of approximately £2.5m. If the proposals for a strategic/operational split are taken forward each partnership would be overseen by a group at member level, whilst operational delivery would continue through groups similar to [those] currently in existence. The result would be to introduce an additional 11 groups to the structure of governance for community safety in the county.

There is also a recommendation that these bodies co-operate at a county level to ensure that the relevant LAA targets are delivered. It is therefore likely that at least one further group will be introduced to provide that co-ordinating role.

Each local authority would then have an oversight and scrutiny committee responsible for community safety. In the case of Surrey there would therefore be 12 such committees. The county council already has a dedicated oversight and scrutiny committee, but at district level most currently operate only loose scrutiny arrangements that would require new structures to meet the requirements of the review. As a result a further 11 groups would be introduced to oversee community safety in the county.

These committees would be responsible for considering applications under the ‘Community Call for Action’ provisions and, if necessary, triggering action. When considering applications the committee would be obliged to involve representatives from each of the responsible authorities.

The majority of funding to support community safety within the county is provided through the individual agencies, each having their own governance structure. The police are accountable through the chief constable to the police authority for their contribution. Local authorities are accountable through the portfolio holder to the Executive and to the full council for their contributions. Similar arrangements are in place for all other partners.

Furthermore, a number of issues being addressed by the CDRPs, e.g. domestic violence, require input from other partners in the wider criminal justice system and third sector requiring different governance and accountability arrangements”.

Police authorities must have a seat on these committees if police accountability in delivering the community safety strategy is to be meaningful. It would seem to leave room for a lead role for local authorities in setting community safety strategies. On the surface, that seems like a noble and democratic aim, but it is likely to erode the accountability of the police to police authorities, and that would not be helpful. Local councils and local councillors have a vitally important role to play as advocates and voices for their communities, but that leaves room for confused accountabilities, with BCU commanders pulled in many directions by many different interests. On top of all this confusion, as the noble Lord, Lord Harris, has reminded us, a White Paper is shortly to come out dealing with reforming local authorities; yet the provisions of this part of the Bill are substantially about local authorities. We really do need to wait and see what the White Paper has to say on this, or we will be back amending this Bill by the time the ink is barely dry on its cover.

My Lords, my speech on this occasion will be much shorter than my last, but it provides me with an opportunity to thank the Minister for the nature of his response to my earlier amendments. The noble Lord, Lord Harris, made a sympathetic reference to the dilemmas of the Corporation of London. I, too, feel profoundly sympathetic to the points that he powerfully argued at this juncture. Your Lordships’ House is in his debt for having done so.

My Lords, I have listened with some care to the comments that have been made in your Lordships’ House this afternoon, and I shall attempt to reflect on those as the Bill proceeds. I was amused to be described by extension as a vanguardista by the noble Lord, Lord Harris. It is well past my student years since that description was bandied around in a rather heated debate about something that seemed terribly important at the time. I appreciate the spirit in which the noble Lord approached his amendment. Some important points have emerged in the debate, but in the end I return to the position that we as a Government would find the amendment pretty much impossible to accept, although some of the issues raised are clearly very important.

It is worth saying that the partnership landscape, which noble Lords have discussed at several points during debates on this Bill, has moved on and changed substantially since the crime and disorder reduction partnerships, which are also known as community safety partnerships in some parts of the country, were officially created in 1998 by the Crime and Disorder Act. There is common agreement that they have played an important part in helping to achieve significant reductions in crime across England and Wales. We need to build on that success story by ensuring that the partnerships are as effective as they can be in reducing crime—there is a commonality of view that that is right—and in particular in dealing with crime and disorder, misuse of drugs, alcohol and other substances and anti-social behaviour. We have moved on, and there is much more of a consensus around those issues.

It is common knowledge too that the Home Office undertook a review of the partnership provisions of the 1998 Act in collaboration with key stakeholders, including ACPO, the Association of Police Authorities, and the Local Government Association. The findings of that review informed the provisions in the Bill which these amendments now seek to remove. The provisions in the Bill will ensure that key tools and good practice examples, such as effective information-sharing and intelligence-led interventions, are used to optimum effect by all partners. The provisions in the Bill allow for the Secretary of State to issue regulations to define how these proposals will be implemented by the crime and disorder reduction partnerships. The provisions are there to provide the flexibility to which the noble Baroness, Lady Harris, referred.

I understand some of the concerns raised by my noble friend about the implementation of some of these measures and I heard his ironic comments about the apparent seamlessness of Whitehall and, in particular, the role of the Home Office. I know that he would like to have seen some of the proposals as set out in the Crime and Disorder Act review made in primary legislation. For good reasons, we think that the detail should be left to regulation and guidance, and that will provide us with an opportunity to reflect further and to have more discussions and debate.

We do not underestimate the importance of ensuring that any such secondary legislation is fully informed by practitioner expertise and the involvement of partners. For that reason, we have gone out of our way to conduct extensive consultations on the detail, with more than 1,000 practitioners across England and Wales, and we will continue to work with stakeholders as we develop the proposals for implementation.

The amendment seeks to remove wholesale the provisions aimed at improving accountability arrangements for local community safety bodies by extending the remit of overview and scrutiny committees, requiring them to review and scrutinise the functions of crime and disorder reduction partnerships. These provisions also provide for the introduction of the community call for action. This will enable local communities to seek answers from the police, local authorities and their partners where they have failed to deal effectively with a community safety problem in their area. The provisions also give ward councillors new powers and duties to act on behalf of their communities to seek a resolution to those problems. This package of measures gives communities an opportunity to have both a voice and a role in community safety.

A number of councils have already undertaken reviews of crime and disorder which have changed the way that services are delivered, with tangible benefits for local people. Overview and scrutiny committees are in a strong position to tackle complex and cross-cutting issues and support partnership working as well as to assist in driving up performance. We want this approach to become standard practice for community safety.

Together these provisions form a package of measures that will enable crime and disorder reduction partnerships to continue to deliver positive community safety outcomes as well as become more visible and answerable to local communities and local politicians, who are well placed to ensure that they are well served. We reject the noble Lord’s amendments for those reasons.

These measures have not been put together in isolation. We are fully cognisant of developments in other parts of Government. We have been working closely with the Department for Communities and Local Government in implementing Crime and Disorder Act review measures, and the White Paper will complement that work. Rather than stall an important process that needs momentum and development, it is important to put in place, at least in outline, measures that will strengthen crime and disorder reduction partnerships and take forward work which has been widely acknowledged successful. I understand the concerns raised by the noble Baroness and the noble Lord. Discussions can continue on those issues, but I urge the noble Lord to withdraw his amendment.

My Lords, I am enormously grateful to my noble friend for his thoughtful response and I am pleased to hear that I have reminded him of his lost youth—that was entirely coincidental. I am also grateful for the support that my amendment has received from various corners of this House.

My noble friend said that the process of making regulations provided an opportunity for further reflection. I take that as an acceptance of my point that considerable further reflection is required. Although I understand the Government’s desire to move forward by putting this framework into legislation so that the regulations can follow, it might be better to reflect earlier rather than later on precisely how this might work.

I am absolutely committed to the idea of crime and disorder reduction partnerships, with local government, the police service and all the other relevant agencies combining on these matters. But we know that the White Paper on local government will take a fundamental look at how partnership working operates in all matters of interest to the future of particular localities. I am also committed, as I think my noble friend is, to the important role of individual elected councillors as community advocates. But, again, the White Paper will, we understand, extend and look at that in all sorts of other areas.

I am attracted to the idea of the community call for action and interested in how that might operate but, given how it will interact with overview and scrutiny committees, we would benefit from knowing precisely what the overall package will be. I digress for a second by saying that we understand that there are also to be major changes in the network of patients’ forums, to create what I think will be called local involvement networks, which will work to local authority overview and scrutiny committees. There will be changes as a consequence of that. These changes will graft all sorts of material on to the work of overview and scrutiny committees, so we are trying to legislate on something that is moving rapidly.

My noble friend said that he planned that reflection should take place between the enactment of the Bill and the introduction of regulations, but I hope that that can be brought forward. I hope that the Government will consider over the next few days whether it would perhaps be better to revise these clauses dramatically, or even withdraw them, given the forthcoming White Paper. In the next few days, the Government may internally be clearer about their direction that they are following for local government. If that view diverges from what is being presented to us today, it is important that we are not faced with having these clauses on the statute book. However, given my noble friend’s offer to reflect further on these matters, albeit at the wrong stage—I hope that he will take my encouragement to reflect further now as opposed to after the Bill has been enacted—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

My Lords, I have to inform the House that the number of noble Lords voting “Not-Content” in the first Division this afternoon was 146, not 145 as announced.

Schedule 6 [Further provision about crime and disorder committees of certain local authorities]:

[Amendment No. 70 not moved.]

Clause 19 [Guidance and regulations regarding crime and disorder matters]:

[Amendment No. 71 not moved.]

Clause 20 [Joint crime and disorder committees]:

[Amendments Nos. 72and 73 not moved.]

Clause 21 [Amendments to the Crime and Disorder Act 1998]:

[Amendment No. 74 not moved.]