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Offender Management Bill

Volume 692: debated on Monday 21 May 2007

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.


Clause 1 [Meaning of “the probation purposes”]:

12: Clause 1, page 2, line 22, leave out “Secretary of State” and insert “Lord Chancellor”

The noble Baroness said: I will also speak to the other amendments in the group, which are on the same basis. They simply replace “Secretary of State” with “Lord Chancellor”. Two weeks ago, the Government split up the Home Office and transferred part of it to what is now the Ministry of Justice, which was the DCA. We still have a Lord Chancellor at its head, who sits as a Member of this House. Why does the Bill, which has been transferred to the Ministry of Justice for its handling and line of accountability, still refer to the Secretary of State?

I note that earlier this year when the Legal Services Bill was debated in this House, on the first day of Report, the Government conceded the arguments made by noble Lords that the references to “Secretary of State” should be substituted by “Lord Chancellor”. Why should that not be done in this Bill too? Noble Lords will note that I have not overtaxed the use of paper by trying to table an amendment referring to every single use of the phrase “Secretary of State”. If the noble Baroness was minded to accept the amendment, later amendments could be made. She looks as if she is not going to accept the amendment; oh dear, what a surprise. I beg to move.

I am always hesitant to disappoint the noble Baroness, but I hope that I will not disappoint her on this occasion, because she is quite right—I am unable to accede to her amendments. She will know, as I do, the distinction between this Bill and the Legal Services Bill, which looked directly at the role to be played by the Lord Chancellor, as Lord Chancellor, as opposed to as a Secretary of State discharging other duties. It is important that we concentrate on what this Bill is about, although it is fascinating to examine the changes in the machinery of government that occur from time to time.

This start to our discussions may be a helpful opportunity to consider the creation of the Ministry of Justice, which has generated much interest and debate. I remind the House that this debate is about not the Ministry of Justice but the Bill. Perhaps we should not allow ourselves to be distracted from the real issues that we are here to debate concerning the future of the Probation Service.

The Ministry of Justice came into existence on 9 May with one purpose only—to improve the justice system for the public. We will achieve that by bringing together many of the organisations, agencies and stakeholders who have to work together to deliver a successful justice system under the responsibility of one ministry. The Ministry of Justice provides an opportunity for the whole justice system to work together better than ever before. At a national policy level and at a local delivery level the Ministry of Justice will build on the significant improvements that we have seen since 1997 in how agencies work together and will provide clear leadership within government for the justice outcomes that best serve the public.

I turn now to the implications of this change to the Bill. Responsibility for this Bill has now transferred from the Home Office to the Ministry of Justice, as I said it would at Second Reading. I also made it clear that the Government remain fully committed to the policy provisions in the Bill and I am delighted to have the opportunity to continue to oversee the Bill’s passage through your Lordships’ House.

A number of amendments have been tabled in the light of that change. The noble Baroness has rightly raised this issue at this stage, but my noble friend Lord Judd has also referred to this by proposing a change to the commencement clause at Clause 38 which would substitute,

“Secretary of State of the Ministry of Justice”,

for the current term, “Secretary of State”. I am happy to say that none of these amendments is necessary. There is no legal distinction between the different Secretaries of State and it is a matter of mere administrative convenience that responsibilities are divided as they are, and it is not normal practice to make reference to any particular Secretary of State. So the existing references, though originally drafted with the Secretary of State for the Home Department in mind, can be applied in the same way to the Secretary of State for Justice. The amendment tabled by my noble friend Lord Judd is, therefore, unnecessary.

The other amendments in the name of the noble Baroness seek to merge the posts of Lord Chancellor and Secretary of State. Those posts are quite separate and distinct, although they are, at present, both held by my noble and learned friend Lord Falconer of Thoroton. There are numerous references to the Lord Chancellor—

My Lords, is the Minister saying that the Secretary of State for Justice may not also be the Lord Chancellor?

My Lords, I am not saying that he may not, but the functions of the Lord Chancellor and those of the Secretary of State for Justice are separate. When we looked at what should remain as the core functions of the Lord Chancellor, we decided that they should not be subject to changes in the machinery of government in the normal way and that if the core functions of the Lord Chancellor were to be changed, one would have to come back to Parliament, which would have to speak.

The noble Lord will remember from his days in government as a Secretary of State that machinery-of-government changes can happen very quickly. Indeed, when the noble Lord’s party was in government, I recall occasions when a department was changed and neither the Ministers nor the officials knew anything about it until they read it in a press release. Of course, those days have changed somewhat, but machinery-of-government changes can still take place in that way.

We made a distinction between the Lord Chancellor’s core functions and an ordinary Secretary of State’s role. For example, before the Ministry of Justice changes, the Lord Chancellor retained certain specific functions as Lord Chancellor but he also had different functions as the Secretary of State for Constitutional Affairs. At present, those two posts happen to held by one person but at some future date, if another Administration wanted to do things differently, there would be nothing to prevent the two functions becoming separate because they are quite distinct.

There are numerous references to the Lord Chancellor in the statute book but, as I have tried to indicate, they relate primarily to functions associated with the judiciary. The functions with which the Bill is concerned are not judicial and it is therefore appropriate that they are exercised by the Secretary of State for Justice rather than the Lord Chancellor.

I hope that, in the light of that explanation, the noble Baroness will be content not to press her amendments. I invite her to look at the functions that we set out in the Constitutional Reform Act 2005, as that clearly delineated the functions that would be reserved to the Lord Chancellor and would not be subject to machinery-of-government changes.

I was intrigued by the way in which the Minister said that changes used to happen quickly and without consultation and that things are much better now. I recall, not so long ago, the Government scribbling on the back of an envelope and trying to abolish the role of Lord Chancellor overnight. The next morning, they found that—whoops!—they were not allowed to do so constitutionally and they had to go back to square one. So I do not think that the noble Baroness can claim virtue in that respect.

The noble Baroness talked about the distinction between the two posts. I am very grateful for the probing questions put by my noble friend Lord Waddington because it is important for the noble Baroness to put her clarification on the record. I shall ask my noble friend Lord Kingsland to look through that for future reference to see whether we wish to pursue this matter further.

I also noticed that the noble Baroness said that it is not normal practice to refer in legislation to any particular Secretary of State. She said that in relation to Amendment No. 137, which the noble Lord, Lord Judd, who is not with us at the moment, may wish to move when we reach that stage of the Bill—one knows not. I am not sure whether the Minister is aware of recent developments in the Forced Marriage (Civil Protection) Bill, which purports to be a Private Member’s Bill but has in fact been rewritten by the Government—very effectively in many respects. In that Bill, the Government accepted an amendment proposed by me and put their name to it. That makes it clear that not all Secretaries of State are the same, as some are excluded from having powers under that Bill. So it appears that there can be occasions when it is right to refer to a specific Secretary of State, and that may assist the noble Lord, Lord Judd, later.

I accept entirely what the Minister said was a core point—that is, with regard to this Bill, these are not judicial functions. Certainly, the Lord Chancellor has a variety of titles and it will be interesting to see which ones he continues to use, but I do not intend to press this amendment or to return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

13: Clause 1, page 2, line 24, leave out “or persons to whom conditional cautions are given”

The noble Baroness said: With this amendment, we challenge the Government’s intentions regarding the future use of conditional cautions. The expansion of their use as a punishment could have significant impact on the work of the probation services, which are core to the Bill. The last paragraph of Clause 1 gives the Secretary of State the power to make regulations that can extend the purposes listed in subsection (1), which we debated last week. He may extend those purposes to include other purposes relating to persons charged with, or convicted of, offences or persons to whom conditional cautions are given.

My amendment would prevent the Secretary of State adding extra purposes relating to those who are given conditional cautions. What extra purposes can the Government have in mind? The Minister will recall that, during the passage of the Police and Justice Bill, we expressed our concerns about the Government’s plans to extend widely the use of conditional cautions and in particular to change the purposes for which they can be imposed. I made it clear that we continued to support the provisions launched by the Criminal Justice Act 2003, which introduced conditional cautions intended to facilitate the rehabilitation of the offender or to ensure that the offender makes reparation—note that it provides for rehabilitation and reparation. But in the Police and Justice Act the Government took the power for conditional cautions to be imposed as a punishment. My colleague Nick Herbert expressed our concerns in another place about the extension of the purpose of cautions to include punishment, but at that time, after much consideration, we agreed that the clause should remain in the Bill while we assessed the impact of the new proposals, when implemented, on cautioning.

I also put on the record our concern about the developments in government policy since the clause was debated in another place. Mr Blair had announced the intention dramatically to increase the use of administrative punishment and to avoid the use of the courts. There was no proper public debate on that matter. In March this year the noble and learned Lord the Attorney-General sent me a copy of the consultation on the revised code of practice for conditional cautioning, and I am grateful to him for doing so. When are we likely to see the results of that consultation?

Page four of the consultation paper refers to the rolling-out of the pre-Police and Justice Act cautioning—conditions for rehabilitation or reparation. The Attorney-General’s letter stated that a national roll-out was under way and that the Government were on target to have a conditional cautioning scheme operating in one basic command unit in every force area in England and Wales by summer 2007 and that full implementation of the scheme was planned for March 2008. He added that the Government hoped to introduce the new punitive measures on a phased basis from autumn 2007, so all those changes will take place when the Bill comes into effect and they will have an impact on how contestability in the Bill may operate.

What assessment has been made of the impact of the roll-out on probation services’ resources and their dispersal between the different tasks that the services need to fulfil? What extra funds have been needed so far to cover the supervision of those on conditional cautions? What new funds have the Government set aside to cover all the extra work that will follow for probation services when the conditional caution is used widely as a punishment? One assumes that the costs are likely to be heavier since there will be more resistance to fulfilling any directions that are overtly a punishment as opposed to those intended as part of a system of rehabilitation.

How do the Government intend to use the powers in subsection (5) to extend the purposes relating to conditional cautions? What impact will that have on the probation services and the cost of running the associated services? I beg to move.

In the Bill,

“persons to whom conditional cautions are given”

should not be included with those charged or convicted because they are in a completely different category. I am among those who have supported, and want to continue to support, restorative justice. Conditional cautioning fits in very well with that. On those grounds I support the amendment.

There is a larger underlying point that we should mark as we go past. If we are introducing contestability, the question of how far private providers of services should provide punishment will come up more and more. If a conditional caution is to be defined as a punishment, it raises some awkward questions about the contestability of services. I firmly hold the view that punishment should be provided by the state and its officers, not private service providers. That is something we must debate each time this arises in the Bill.

I support the amendment. As we all know, and as has been mentioned, conditional cautions were introduced in the Criminal Justice Act 2003 and are a form of administrative justice. They offer an alternative to entering the criminal justice system for low-level offending and are greatly to be welcomed as a brake on what can be seen as a recent creeping tendency for sentencing to widen the net and for offenders to become criminalised at an earlier stage.

As we have also heard, when conditional cautions were introduced, their objective was absolutely clear. They were an essentially non-punitive response to low-level offending which gave police the opportunity to press home the unacceptability of the behaviour and to attach conditions which were exclusively focused on reparation and rehabilitation. This approach is greatly to be encouraged as widely as possible, not least because those two objectives also have the best chances of giving satisfaction to the victim and reducing reoffending. We strongly support them.

We had some lengthy arguments during the passage of the Police and Justice Bill when the Government wanted to extend the conditions to include other sanctions, such as fines, which went beyond the original intentions and were essentially punitive. As I understood it, it was then agreed that there would be trials in a few areas to test out the wider approach. On the basis that this would be revisited before being more widely applied, we accepted that situation at the time.

The Bill already allows for probation services to be involved in determining whether conditional cautions should be given—and, if so, which conditions should be attached—and for the supervision of anybody to whom such a caution is given. In that sense, it seems entirely superfluous to include this sentence in the Bill, and raises the worry that it is another way of paving the way to the further extensions that we resisted during the passage of the Police and Justice Bill.

The extension of administrative justice, even to speed up the process of justice, which I know was an issue for the Government at the time, or in a limited form, is absolutely undesirable. It would be welcome if the Minister could categorically reassure the Committee that no such measures will be taken, or included in the Bill, until all the issues have been revisited, as we were last year assured they would be.

The provision is very much seen as a tidying-up amendment. I remind the Committee that it will always be open to the individual to decline to accept a caution. If they do not wish to accept a conditional caution, it is therefore absolutely open to them to go to court and have it dealt with. The noble Baroness, Lady Linklater of Butterstone, is absolutely right when she says that conditional cautions are a useful way of narrowing, as opposed to widening, the number drawn into the criminal justice system. It is sometimes enough to arrest the behaviour by bringing it to the attention of the individual, considering how best to make reparation, which conditional cautions can enable us to do, and then, one hopes, stopping them from continuing to reoffend. The beauty of it is that a conditional caution is significantly different from a full-blown conviction. It can assist greatly in the long term.

We therefore considered the financial element when we last debated this matter. I hear what the noble Baroness, Lady Anelay, says about the caution with which she approached those issues. However, I remind the Committee that Clause 1 is based on Section 1 of the Criminal Justice and Court Services Act 2000, as amended by Section 26 of the Criminal Justice Act 2003. The 2003 Act added the probation purposes. Clause 1(1)(b) of the Bill provides for,

“authorised persons to be given assistance in determining whether conditional cautions should be given and which conditions to attach to conditional cautions”.

We will discuss shortly the regulation-making power in Clause 1(5). However, Amendment No. 13 would remove the power to extend the purposes relating to persons to whom conditional cautions are given. I understand the spirit in which it has been tabled because it enables us to clarify the purpose.

I commend what the noble Lord, Lord Hylton, said about the importance and utility of conditional cautions, which was echoed by all noble Lords who spoke. A conditional caution enables the police and the Crown Prosecution Service to offer a caution with conditions attached. It may be given to an adult when there is sufficient evidence to charge him with an offence that he has admitted. The offender must agree to that caution. If the conditions are not complied with, the offender can be prosecuted for the original offence. It is important to remember that if the offender breaches the conditions, he returns to square one and is then prosecuted. It is for the CPS to decide whether a conditional caution is suitable and to identify appropriate conditions.

Those conditions can include reparative work conditions. The National Offender Management Service is currently working with the respect task force, which is funding the project, and the Probation Service to increase the opportunities for unpaid reparative work conditions in a number of pilot sites. The role of the Probation Service in this project is to identify suitable schemes that can be used, drawing on its expertise from involvement in similar schemes. The pilots are expected to last a year, from January 2007 to December 2007, and will be evaluated to provide information regarding the costs and benefits involved in the use of such conditions. That will help us to make a proper judgment about how best to use them.

When the 2000 Act was amended by the 2003 Act, the amendments did not include conditional cautions in the power to extend probation purposes by means of regulation. However, there are certainly no plans to extend the probation purposes in relation to conditional cautions; nor is there any reason of principle to treat this aspect of provision differently from the others. This is simply a tidying-up provision, which I hope noble Lords will agree is sensible.

The respect agenda is an opportunity to look at how others may be able to assist us in this regard. A number of voluntary sector agencies are keen to assist in some of this lighter intervention to help people to get over some of their difficulties. We see this as a helpful opportunity to move forward. With that, I hope that the noble Baroness will be content to withdraw the amendment.

I accept that this is a tidying-up process, but has the Minister considered the cost implications for the Probation Service? The noble Baroness, Lady Anelay, asked about this. This is the lower end of the sentencing tariff. Why do we want to involve the Probation Service to that extent, bearing in mind that its biggest problems are resources and the financial implications of its work?

I reassure the noble Lord that we are taking cost into consideration. The Bill is an opportunity better to allocate resources and expertise. There are areas in which we need the acuity, skill and experience of the Probation Service, particularly with more difficult offenders, for whose management we will need the greatest period of care. But there is an opportunity for us to develop a lighter-touch intervention with some of the reparative and other work which may enable us to divert people in a way that is quick, effective and successful.

We have talked several times in this House about the importance of intervening early and undertaking a needs-based assessment of what we might best be able to do quickly. I know that the noble Lord has a lot of experience of the work of NACRO, the NSPCC, Turning Point and other charities and organisations. They can assist with some of that lighter work—some at the more difficult end, but especially at the lighter end. We may be able to develop that. That is why we think that it is very important to look at the pilots and the outcomes. The respect agenda is important. Those organisations can assist us with some of the resources involved, and we will be looking very carefully to see what works. That is our template. It is on that basis that we make these proposals.

I am grateful to all noble Lords who have spoken. The noble Lord, Lord Dholakia, was right to pick up the issue of cost. It is an issue that concerns me. I still do not have a feel for how the budgets are working, and how they are being transferred from the Home Office to what was the DCA. As a lot of what the Government are trying to do in the Bill is predicated on trying to use more effectively the money that is available, that worries me.

The noble Lord, Lord Wallace of Saltaire, picked up another issue that worries me as it runs through the Bill. It is why I tabled my amendment that kicked off our first day in Committee last week. That is the future role of probation services with regard to punishment and what we consider punishment to be. Conditional cautions which require punishment will obviously involve probation services, by whomsoever they are provided, in punishing the offender.

I am grateful to the noble Baroness for the way in which she tried to give better clarification. She took us further forward. I am grateful to her for saying that there are no plans at present to extend the purposes of conditional cautions. She will not be surprised if I watch as carefully as I can, given that it is just me, to see that there are no changes. I appreciate what she says about the tidying-up nature in the reference to the 2000 Act. I beg leave to withdraw the amendment, which I will not bring back on Report.

Amendment, by leave, withdrawn.

14: Clause 1, page 2, line 25, at end insert—

“(6) Regulations made under this section may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.”

The noble Lord said: The amendment stands in my name, as well as that of the noble Baroness, Lady Anelay. I shall speak in particular to the regulatory powers sought for the Secretary of State in relation to the provision of probation services.

Before speaking to the amendment, I thank the Minister for the large package of information which was transmitted to us at 5.42 pm on Friday. I was grateful for it, although I must admit to her that I was enormously disappointed when I saw what the corporate allowance was all about—of the 26 organisations, several were charities, two were hotels and one a garden centre. I had rather hoped for more than that.

I freely admit that the basis for the amendment is the concern that a number of us have about an action taken last September, when a statutory instrument was introduced that changed the composition of probation boards and removed magistrates and members of local government from them by stealth, to be honest, because we were given no warning. We did not have time to go through it before it was introduced. Therefore, we are seriously concerned that that might happen again in relation to probation services. I am particularly concerned at the moment about the introduction of probation trusts, about which I wish to conclude.

I spent considerable time over the weekend going through in great detail what was said last Wednesday, particularly by the Minister. I shall, if I may, replay some of her words to her. I think that we are absolutely at one on the intention behind so much of the Bill; it is the method and the detail that cause concern. First, she said that,

“we could do better on reducing reoffending”.

I think we all agree that we would like the figures to be better, but we will talk about what reoffending means later in our consideration of the Bill, so I do not propose to do so here.

Secondly, the Minister said that,

“we are talking about two different systems: the system of commissioning services and that of the provision of services”.

However, commissioning enables provision, so we are talking not so much about two different systems but about two complementary systems. The Minister went on to say that,

“we are introducing a process of commissioning”.—[Official Report, 16/5/07; cols. 225-26.]

Anyone reading that could be forgiven for thinking that commissioning was brand new, but of course commissioning has been in place ever since 1907. The commissioning of services, whether by a probation service or the voluntary sector, has actually happened. The Minister says that the Government are introducing a “process of commissioning”, which is not the same thing at all: we are talking about a different process, not about commissioning itself. It is the process of commissioning being introduced that is causing concern. There is more stealth in this, as I shall outline. That is what causes us concern, because it is what the Government say they want to do rather than what may be necessary.

Here I come to the necessary bits. I was very interested in what the Minister said about what the Probation Service was already doing. She said:

“All the things alluded to by the noble Lord, Lord Ramsbotham,”—

in my amendment about the principles—

“are already part of the framework of what the Probation Service does”.

Noble Lords will remember that that included the partnership between the private, the voluntary and the public sectors in the provision of probation, working in conjunction with local organisations. The Minister went on to say that the Probation Service,

“has gone right to the centre of the criminal justice system”.

If the Probation Service is already at the heart of the criminal justice system, what else do we need from it? The Minister continued:

“Now the Probation Service sometimes drives change and welds the criminal justice system together, an important cultural shift”.—[Official Report, 16/5/07; col. 269.]

If the Probation Service is already at the heart of the system and is welding it together, what change are we talking about that justifies such an upheaval in the method of commissioning?

The Minister then said that,

“compliance with court orders … is an area in which probation performance has improved beyond recognition in recent years. For example, enforcement action is now taken swiftly in over 90 per cent of cases”.—[Official Report, 16/5/07; col. 273.]

If I had a 90 per cent success rate in what I was doing, I would be extremely pleased. We talked so much about the need to improve enforcement and about compliance with court orders being at the heart of what the probation services are doing, but, according to the Minister, a great amount of it is already being done, so what are we actually talking about? Of course we must improve performance. It seems to me that the Bill is not so much about improving performance but about changing the method by which some of that performance is commissioned. That is not necessarily terribly wise, if everything is working as well as the Minister tells us it is.

Having said that, I have three questions for the Minister. The Minister has said:

“We … need to collocate relevant services on a regional basis to provide as efficaciously as possible easy access for those who need it. It makes sense to commission such services more regionally”.—[Official Report, 16/5/07; col. 271.]

How does the Minister propose to collocate private and voluntary sector services on a regional basis when there is no way for the Government to direct the deployment of such services in that way. I think that the Minister means that you need to have local services working together on a regional basis, but that is not the same as collocating them.

At col. 270 on 16 May, the Minister referred to the duty of the Probation Service to provide courts with details of the sentence plan to help them to come to the sentence. With respect, I do not think that that is correct. Until the sentence has been passed, the assessment on which the sentence plan is made cannot happen. The sentence plan cannot be provided before the sentence. Advice is needed by the courts, but a sentence plan cannot be provided as part of the pre-sentence report.

My final concern is that the Minister mentioned that there would have to be personal officers in prisons who would be contacted by offender managers over the supervision of prisoners. I know that there are personal officers in prisons and that that system is under huge stress from overcrowding. Not many prisoners have personal officers, whose job is nothing to do with offender management or sentence planning. I merely question those matters.

This Bill is about a very serious matter—the proper management of offenders and the protection of the public. I am deeply concerned that too much in this Bill is not sufficiently detailed and thought-through in order to enable it to happen. You cannot just let it go. The noble Lord, Lord Judd, put it extremely well when he said:

“I am disappointed, but I hope that she will go away and reflect on what we have been saying … and see whether some adjustments can be made to the Bill to send a clearer signal about its strategic purpose”.—[Official Report, 16/5/07; col. 249.]

I entirely agree.

We also need detail—by that, I mean not just this House but also probation boards and probation staffs. My concern is that those probation boards which wish to be considered trusts have to apply by 4 June. We are told that they will be identified by the end of July and the first trusts will be formed on 1 April 2008. But I have also consulted the probation boards to find out what they think about this, which I have done in the spirit of what I reported at Second Reading; namely, that 638 of the 648 dissenting—or at least critical—verdicts on the so-called consultation paper about probation were against or had some alternative view, and they have been airbrushed. In addition, a very disturbing comment was made by a senior official in the Home Office to the effect that it did not consult senior probation officers on this matter because they were too junior.

The probation boards were asked about this consultation because they are the people who have to put themselves forward. They replied to the Home Office on 17 April 2007. They said:

“We are pleased to provide a response but before addressing the question there are two overarching points we would wish to make. First, we believe that there is a fundamental lack of clarity as to the nature of a trust and how it will be different from a local probation board in real terms and, second, the proposal for trusts to be established in waves is potentially divisive, resulting in two concurrent probation governance regimes that would confuse stakeholders and be bureaucratic and extensive to resource”.

They went on to talk about integrated assessment, on which they were invited to comment.

I have paid close attention to the noble Lord’s words during the 11 minutes that he has been speaking, which have gone back to what he said on our first day in Committee. Is he speaking to his amendment, because I am struggling to understand the relevance of what he is saying to the amendment before us?

It is important to explain why the Secretary of State should be required to use the affirmative resolution procedure rather than what has happened before. That is what I explained when I set out what I proposed to do. I have used the example of what is happening with trusts because it is an area in which something is happening by stealth before being properly thought through. That is precisely what we want to avoid in the better delivery of probation services, which is the whole purpose of this.

I shall not repeat all that is said in the letter, but it is clear that the probation boards are extremely concerned because they do not know who is going to make the judgments on who the trusts should be, what will be the criteria for assessing the quality of leadership, what form will the stakeholder surveys take and so on. In other words, this is not a properly thought-through process. Given that, how do the boards know what they are applying to be on 4 June, who will make the selection and so forth in July, and how something appropriate for the system is going to be put forward next April? I have also consulted the chief probation officers, who are very concerned that budgets have been frozen for three years, which means that they are facing extreme problems given the vast numbers of additional offenders they have to deal with. For example, the chief probation officer of London has had to warn 60 per cent of his staff that they risk redundancy as a result of the cuts that may have to be made. That is not to say that it will happen, but he has given a warning about the impact of the cuts. The Probation Service has lost its headquarters and its national director in all but name, so there is no one now to lead it and be the focal point for chief officers of probation. They are concerned about the fragmentation resulting from that.

I submit that all this is avoidable. However, it should not just be avoided now, it has to be avoidable in the future. That is the purpose of my amendment: to make certain that we discuss these provisions in both Houses before any changes are made which might well impact seriously on the protection of the public, which is of course the major responsibility of the Government. I beg to move.

I want to ask a brief question arising out of my understanding of this amendment, which I see as a probing amendment. As I understand it, the Committee on Delegated Powers and Regulatory Reform gave a cautious report on the delegated powers in Clause 1(5). Under it, the Secretary of State will be enabled to extend probation purposes by order, subject to the negative procedure. Clause 2 requires him to make sufficient provision for probation purposes. The committee observed that the power in Clause 1(5) was similar to that conferred in Clause 1(3) of the Criminal Justice and Court Services Act 2000. But—I emphasise this—without that precedent, the committee would have been inclined to consider that this power should be subject to the affirmative procedure. Can the Minister explain why the negative procedure should apply in this case?

I support the amendment. It is extraordinarily strange that the Secretary of State should be given what is, as it were, an uncontrolled power to change the Bill. We spent the whole of the first day in Committee discussing the first clause, but apparently we were wasting our time because the Secretary of State can change it at any point he chooses.

I thank the Minister for sending the details of the process that has been under way for some time to us over the weekend. Indeed, a second copy arrived this morning. They certainly gave a clearer view of what has been happening. However, they reinforced my concern that there was a need for a Bill of this kind to enable what has been going on perfectly satisfactorily for some time, on more and more of a partnership basis, with recognition that the Probation Service was doing an extremely good job. Some of the details about the cuts in its resources are very concerning indeed. I, too, have heard comments expressed and they should be seriously considered. I look forward to hearing what the Minister can say to justify the need for the Bill.

My noble friend Lady Linklater is right to say that we see this as a probing amendment. The Delegated Powers and Regulatory Reform Committee report states that the department will allow the definition to be extended but not reduced. It further states that the view of the Minister’s department is that this is the appropriate level of parliamentary scrutiny for this provision. Can the Minister give examples of how it came to this conclusion?

When listening to my noble friend Lord Ramsbotham, I was reminded of the reforms undertaken by the Government in establishing the Child and Family Court Advisory and Support Service. They were very well intentioned and it is now going well. But, at the time, many guardians ad litem left the service because the transition was very poorly considered. I think that is accepted by all. The result was that children’s cases were delayed, and delay is critical in the outcomes for children in these matters.

I am also reminded of the recent proposed reforms to legal aid for family courts. I know the Government are thinking very carefully about this, but the current result is that businesses working in this area are closing down and lawyers are talking very seriously about leaving it because of the introduction of fixed fees.

I am sure that the Minister is taking these concerns very seriously. She is trying very hard to explain what the intention is and I hope that she is successful. I would hate experienced probation officers to leave the service because their morale is reduced by the Bill. I hope she can reassure us.

It is perhaps worth reminding the Committee that we are discussing the relative merits of having either an affirmative or negative resolution procedure. We are not—or should not be—focusing on a wider range of issues in this debate. The noble Lord, Lord Ramsbotham, in his customary style, has broadened things out and away from the purpose of this sub-set debate, which, in essence, is what it is; it is a process issue.

I understand that the noble Lord has major policy differences with the Government about the way in which commissioning should work. I understand that he does not like the general thrust of this modernisation, although, of course, on some occasions he likes aspects of it, but that is not what we are discussing here. Many of the arguments he has raised today were discussed very fully at the outset of the Bill, not only at Second Reading but on the first day in Committee, so perhaps the Committee will allow me to run through very carefully the arguments surrounding this issue.

There has been a great deal of discussion under Clause 1, which sets out the various purposes governing the probation services that are to be provided under the remainder of Part 1. The probation purposes describe the nature of the probation services to be provided under the new arrangements. Clause 1(5) enables the Secretary of State to extend, but not to narrow, the probation purposes by regulations which will be subject to negative resolution. I am sure all noble Lords understand that. The amendments would make any extension to the probation purposes subject to the affirmative resolution procedure.

Perhaps it will assist the Committee if noble Lords understand that the same power already exists in the 2000 Act. Taking on the point made by the noble Lord, Lord Dholakia, about providing an example of how that particular power has been of some value and virtue in the past, I should say that it was the means by which purposes were extended in 2001 to include the giving of information to victims. That extension was widely applauded, not just in this House but more generally. It was a sensible, practical measure, and, I think most people would agree, highly desirable. It is possible that similar needs may arise in future that we cannot now predict, but which would be straightforward extensions of the existing power. It is not that, as the noble Lord, Lord Ramsbotham, suspects, we are forcing or foreshadowing some great extension of power other than things such as the provision of information to victims. It is not a stealthy move, as he has perhaps seen it. We might not be able to predict what those smaller steps might be, but it seems sensible to us to have a simple and effective way of making those sorts of changes without placing unnecessary burdens on the House and its time.

The Delegated Powers and Regulatory Reform Committee produced an extremely helpful report, which recognised the precedent that exists in the 2000 Act. The committee does not consider the negative procedure inappropriate at all. I have looked at what the committee had to say about the issue, as has the noble Baroness, Lady Linklater, and it is worth reading it fully into the record. It says:

“Clause 1 defines ‘the probation purposes’ and subsection (5) enables the Secretary of State to extend the purposes by order subject to negative procedure. Clause 2 requires the Secretary of State to make sufficient provision for the probation purposes. The power at Clause 1(5) is similar to that at Section 1(3) of the Criminal Justice Act 2000. Without this precedent, we would have been included to consider that this power should be subject to the affirmative procedure but we do not consider the negative procedure inappropriate”.

That is the committee’s ultimate conclusion. It can see the virtue of the power and the way it has worked for small extensions of powers that have been required, and it does not see some wider purpose to it. For that reason we resist this amendment; otherwise we would be more than happy to have a broader debate and the affirmative procedure used. This is not a Government stealthily taking a power with some sinister import behind it; it is simply a narrow provision that only requires a negative procedure in this House and another place, and the Delegated Powers and Regulatory Reform Committee recognises the strength of that argument. I hope that, having heard that, the mover of the amendment will feel relaxed enough to withdraw it.

I am grateful to the noble Lord for his explanation, particularly for what he said about the negative procedure. I am sorry that he introduced the word “modernisation”, because I do not know what he means by that. This is not modernisation. I am all for modernisation if it means making things better, but sometimes when you are dealing with people certain principles have to be observed. I am not satisfied that this process will necessarily enable people to do their job with others in a better way, and I am therefore concerned that he should introduce the term.

I listened to the Minister and I note what he said about the Government not wanting to take a power by stealth, but I am certain that there will be occasions when the Secretary of State may, in an emergency, have to make some sudden change. Of course I accept that. I remain concerned, however, about the general tenet of what I have been saying. The Minister has not commented on the fact that we have another Committee day on Wednesday but then do not appear again until 5 June, one day after people are meant to have applied for something that is not clear. It is appropriate to draw that to the attention of the Committee so that the Minister has an opportunity to consider whether the process, which was started in the Home Office—it replied on it on 17 April—and is now in the hands of the Ministry of Justice, is still appropriate.

I say that because, since 9 May, the Lord Chancellor and Secretary of State for Justice has had a meeting with the chief officers of probation and the probation boards, which resulted in their saying that they were not happy that there was a vast gulf between reality as they saw it on the ground and the situation as it was being presented. As a result, they have written a letter to the Lord Chancellor, which it is not my business to see, and are seeking another meeting, which he is granting. That means that the Ministry of Justice is already concerned about this.

I have not said all that I was going to say. It is extremely important that we bear in mind the fact that the Ministry of Justice will take the legislation forward—I accept that, as the Minister said, we are talking about the Bill and not the ministry—and that the conclusions about what trusts should do and what should happen to them will be reached by the Ministry of Justice. I accept what the Minister said, and I am prepared to withdraw my amendment, but I look forward to further discussion on trusts during the remaining stages of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

15: After Clause 1, insert the following new Clause—

“Duty to co-operate

The Secretary of State, local probation boards, the Prison Service and such other persons or organisations as the Secretary of State may by order designate shall co-operate with one another in carrying out their respective functions, in so far as those functions relate to the purposes identified in section 1 of the Criminal Justice and Court Services Act 2000 (c. 43) (“the 2000 Act”).”

The noble Baroness said: The amendment would for the first time make clear how the much quoted and welcome notion of “end-to-end management of offenders”, as the noble Lord, Lord Carter, expressed it, can be made a truly effective reality by placing a duty on all the relevant agencies in the criminal justice system in England and Wales to co-operate with one another. This would include the Prison Service, whose role in the process has been mysteriously left out of the Bill.

As has been said in our discussions on the consistent management of offenders from beginning to end, the process must include the Prison Service, particularly when it dominates the lives of so many offenders and impacts so regularly on the Probation Service. That is not to mention its ever increasing overcrowding, its costs and the high reoffending rates.

Moreover, given the general, official perception of a need to be tougher and more punitive, the development of community-based alternatives has simply not had the necessary profile or investment to enable them to do what they could and should be doing. I know that the Government’s payback schemes are in operation, but their impact has been limited and they have not yet had the desired effect. As a result, they do not have the confidence or understanding of the sentencers or the public. This is in spite of the oft repeated mantra that custody must be used only as a last resort for the most dangerous, violent and prolific offenders, the reality of the disproportionate numbers of offenders serving short-term sentences filling the prisons, and the inevitable failure, in the midst of untenable overcrowding, to prevent more than two-thirds of the prison population from reoffending. Prisons, and their crucial relationship with probation services, cannot and must not be left out of this discussion. The amendment would put them under a duty to co-operate.

This follows the Scottish model, which has now been in place for just over a year and was discussed briefly at Second Reading. The differences of context in England do not outweigh the similarities. The response to an early consultation process in Scotland revealed a strong resistance to a move towards a single agency, just as was the case in England and Wales when Restructuring Probation to Reduce Re-Offending was published—fewer than 1 per cent of responses were in favour of the centralising plan. Concerns similar to those in Scotland were expressed, in particular the wish to keep provision rooted in local areas where offending originates and where it must also be tackled if it is to work. The difference was that Scotland listened to the views of the practitioners and has created a system that is just that: rooted in localities.

I shall briefly describe what is being done in Scotland. Eight community justice authorities have been created, which are a regional tier of statutory bodies. They consist of locally elected councillors, who ensure that criminal justice agencies are joined up and fulfil their duty to work with the Scottish Prison Service to reduce reoffending and to form effective local area partnerships to deliver integrated services for offenders both in prison and in the community. Statutory partner bodies are the police, health boards, the Scottish Court Service, significant voluntary organisations, local procurators fiscal and Victim Support Scotland. There is also a wider range of statutory partners. Additionally, there is a parallel plan for MAPPA, with a similar duty to co-operate between all the relevant agencies. Area plans are drawn up based on local need.

At this early stage, the important lesson is that a more creative, responsive way of working is already developing between agencies and generating a lot of enthusiasm. The amendment represents a proposition akin to that of the noble Lord, Lord Carter, to break down the silos and the barriers that prevent constructive partnership from working. It would make end-to-end management far easier, and more shared information means better planning. It is important that we look at such developments and learn from others’ experience, especially when the goals are common and the way of working reflects what most of us believe is essential to good and effective working; namely, that it is rooted in localities and reflects the needs of all members of the community, including the offenders.

Structures are already in existence in England and Wales that have similar potential and play an important part in choreographing local community justice. They include the crime and disorder partnerships and area criminal justice boards. Procedures are in place for local area agreements to bring the relevant agencies together in ways that suit their local circumstances. This is exactly what the LGA is calling for.

Many of us fear that the Bill will create an overcentralised and overbureaucratic system under which providers will find it hard to create real partnerships in the interests of offenders and communities. Contestability in this atypical market could drive a wedge between providers, who should be working together in the interests of offenders and the community, rather than driving up standards as is the hope and belief. The duty to co-operate would bind agencies together in the interests of best practice in offender management and communities.

Many agencies, including Napo and the LGA, already see great value in this way of working. I urge the Minister to give the issue serious thought and not to dismiss it quite as summarily as she did at Second Reading. It has a great deal to offer us. I beg to move.

I support the amendment, which would, as the noble Baroness said, ensure better co-operation between all the relevant agencies. That, in turn, would provide greater safety for the public. The amendment aims to reduce reoffending; it emphasises this rather than competition between the various agencies. I support particularly the reference in the amendment to the Prison Service. The Scottish experience was outlined. As the noble Baroness said, it is a good model to follow.

I support the amendment. I am grateful to the noble Baroness, Lady Linklater, for bringing the Scottish experience into our discussions. I declare an interest as a member of the Scottish Executive’s national advisory board on community justice authorities and convener of the Scottish Consortium on Crime and Criminal Justice.

I, too, very much appreciate the material that was sent round electronically by the Ministry of Justice late on Friday. One paper on the strategy for reducing reoffending says that to deliver results we need simultaneously to tackle the education, employment, financial, housing and health barriers that offenders face while providing support to ensure that they are able to access mainstream services and are effectively reintegrated back into the community. I very much welcome the reference to mainstream services, because once people have been labelled offenders and have been described as the responsibility of one service, mainstream services can be very happy to say, “They are not our responsibility. This is someone else’s business. We are already under enough pressure, thank you”. The idea of a duty to co-operate will overcome any temptations in that direction.

A duty to co-operate can help those supervising offenders to make demands on those mainstream services without which they will not be able to rehabilitate. I refer in particular to the statutory duty on prisons. It is very new in Scotland that prisons should have a statutory duty to co-operate with the community justice authorities, which can therefore make demands on them.

In a sense, the Bill has an emphasis on individuals and their procession through a system, but there is enormous scope for co-operation much more widely than just in relation to the individual pathway of a person through a prison and out into the rehabilitation service. There are ways in which co-operation between institutions can be very beneficial. For example, Edinburgh prison has half a floor devoted to offices where people who resettle ex-prisoners have a desk, a telephone and a lockable filing cabinet. They can be there at any time, and prisoners come to see them. Another way in which co-operation can be beneficial is when prisons make a relationship with the local authority and agree to inform the authority about who is coming out when and what they might need. Those are simply examples of what could flow from a duty to co-operate. I very much support the noble Baroness in her amendment.

I warmly support the amendment and draw my noble friend’s attention to her words from previous deliberations in Committee, when she reassured me and other noble Lords of her total commitment to the objective of rehabilitation. If we are to achieve that, there must be a culture in which everybody shares that purpose. This amendment simply puts the practical pieces in place to ensure that that culture is applied.

It may be helpful to point out that the Government already have this policy with regard to children in the Children Act, under which it is the duty of all agencies to work in partnership towards five clear outcomes for children; there is a children and young people’s plan in each area to guide the agencies in that regard. Will the Minister explain why that works in that scenario and not in this one?

I have been intrigued by the pattern in Scotland, which seems to be a model that we should all bear in mind for the future. On this co-operation and partnership in the work that we hope will be undertaken with offenders and within the local community, my concern lies in commissioning services. There is a difference between one group telling another what it has to do, but not in a partnership way, and the whole approach of the amendment whereby both sides co-operate in partnership to deliver whatever is identified for the good of an offender and the local community. That is what struck me and I would be glad of a reaction from the Minister on that point.

I support the amendment, to which I put my name. At times it is well worth looking not only at the international dimension but at what is happening across the Border. My noble friend Lady Linklater rightly pointed out some of the positive ways in which Scotland has dealt with this issue. My noble friend makes very positive contributions on criminal justice matters, so we should seriously take note of what she says.

The amendment does not take anything out of the Bill but simply adds something very positive. We need to look at how effective such a strategy could be. In the past, the criminal justice agencies worked in a compartmentalised way. While they were effective and adequate in what they were doing, the sum total of what they did often resulted in a service that was not properly co-ordinated. Research into the past will show that that is what happened. However, changes have taken place, for which the Government should take some credit, in setting up local criminal justice agencies, crime reduction partnerships and all sorts of things. For example, at one time, one could hardly get past prison doors, but now we see a number of agencies going into prisons to do something positive. We are looking for that sort of example in how we take this matter forward.

We do not need to be negative here, because there is something very positive in the amendment. I hope that the Minister will take it away to examine carefully how it could supplement the Government’s actions. Perhaps she will come back with it at a later stage to see how we can progress.

I have listened carefully to this debate. I hope that the Minister does not just tell us that the amendment is unnecessary. I suspect that that is what she is about to say, but it would be a great pity if she did. I hope that she will explain what conceivable harm it would do if the amendment was included in the Bill.

I rise not just to support the noble Baroness, Lady Linklater, but to associate myself with what the noble Lord, Lord Dholakia, said about being positive. We are all positive about this. The noble Baroness, Lady Linklater, referred to binding together the two services and spreading good practice. I refer back to what I have said before. It is a great pity that the chief binder in the Probation Service seems to have been sidelined—in other words, the professional head of the service. The ability to spread good practice is determined by whether the structure is in place, with chief officers working to the director. If you do not have that, you have no machinery—and spreading good practice is the best possible way in which to turn good practice into common practice.

The noble Lord, Lord Waddington, has foreshadowed what I am going to say, but that does not diminish the efficacy of saying it. I hope that, when I have finished, the Committee will be reassured that we are very much on the same track. We are in many ways in violent agreement as opposed to disagreement. I shall explain why, taking the point made by the noble Lord, Lord Dholakia, that we have already made some very significant changes in the openness with which we are participating, sharing and working together in these matters. We believe that that has had a very significant impact.

There is no disagreement between us that working together in partnership is absolutely critical if we are to be successful. I am grateful to the noble Baroness, Lady Stern, for highlighting the parts of the note which emphasise our aspirations and the work that we have already done. I say to her that because we wanted to make sure that these issues were mainstreamed I set up the Inter-Ministerial Group on Reducing Reoffending, on which 11 departments now sit. We are working very hard together to make sure that this is the preserve not simply of the criminal justice system but of all government. The issues in the note that the noble Baroness, Lady Stern, highlighted are those with which we are all concerned and to which we are entirely committed.

The Scottish system is attractive but there are some very significant differences between its arrangements and those in England and Wales. The Scottish Act places a duty on Scottish Ministers, the community justice authorities and local authorities to co-operate in carrying out their respective functions in relation to relevant persons designated by order. As the noble Baroness, Lady Linklater, made clear, it is important that the members of the body are all elected. This model is not transferable to England and Wales without making radical changes to our central and local criminal justice structures and does not allow for the introduction of commissioning.

This amendment seeks to place a duty to co-operate on all bodies which deliver offender services, and on other related bodies to be defined by order. I thank the noble Baroness for tabling the amendment because it gives me an early opportunity to talk in detail about our commitment to working in partnership. This is the main purpose of the Bill. A wide variety of duties to co-operate in the delivery of probation services already exists in England and Wales. Some of these are statutory, such as crime and disorder reduction partnerships, through which we have delivered the successful Prolific and other Priority Offenders Programme; others are non-statutory, such as local criminal justice boards, which bring together the heads of all the local criminal justice agencies—police, Probation Service, Prison Service, Courts Service, Crown Prosecution Service and youth offending services—in the 42 areas of England and Wales.

We have also established reducing reoffending partnership boards in every region. These boards, convened by the regional offender managers, are proving very effective in bringing together a range of partners responsible for delivering services from outside the criminal justice system who have a part to play in addressing the wider causes of reoffending. Typical members will include representatives from Jobcentre Plus, the Learning and Skills Council, local authorities, health services and the sentencers. Indeed, on Friday I had the privilege of visiting Doncaster prison, where I spoke to people in the resettlement wing. I saw some very impressive work there. The prison had just received £60,000 from the Home Office for a lithograph printer, which has enabled skills training to be delivered. I am given to understand that there is a skills gap in that part of Yorkshire. Some excellent training is now going on in the prison. Indeed, one prisoner has now left with sufficient skills to enable him to become a teacher trainer of printers and receives a wage equivalent to that of the senior prison officer who trained him. So there is a great deal of sharing of expertise. We are trying to replicate the outside working environment in prisons.

I also saw the Together Women Programme in Doncaster and then moved on to Sheffield to look at the work by the partnership to reduce reoffending. Some splendid work is being done right across the piece. These partnerships are already co-operating and working together. We want to build on the successful work of these partnerships, which have been so painstakingly established over recent years. That is why we welcome the move to place local area agreements on a statutory footing in the Local Government and Public Involvement in Health Bill. I have tabled an amendment, which we will discuss later, to ensure that this applies to the new arrangements proposed in the Bill.

I hope that I have made clear that we recognise that probation services cannot reduce reoffending on their own. Co-operation is crucial to the delivery of partnership working. Clause 3(3)(a) explicitly enables the Secretary of State to authorise or require providers to co-operate with one another and with other agencies involved in crime prevention, crime reduction or work with victims. These expectations will be clearly set out in contracts.

From a wider perspective, the overriding point is that a duty to co-operate with external bodies would not of itself create a change of culture for those delivering probation services. We need to supplement the public sector Probation Service by working increasingly in partnership with the voluntary, charitable and private sectors, and with local communities. I do not see how this would be achieved by this amendment.

I remind the Committee that around 50 per cent of the resources that support offenders come from outside the criminal justice system. The National Offender Management Service is already committed to working closely with all partners at a local level. At the moment the ability of local providers to co-ordinate these resources is hampered and variable. The legislation will give us the freedom to be far more flexible in the way that we do this. To safeguard against fragmentation we will make it a priority for regional offender managers to contract with probation trusts in such a way as to preserve the benefits of coterminosity. We can also make sure that those who commission do so in a way that encourages and enhances the opportunity for partnership rather than the opposite.

The noble Baroness, Lady Howe, referred to commissioning a service in a way that would not enhance co-operation and partnership. I believe that she is wrong about that. The whole purpose of our commissioning is to encourage and enhance co-operation and partnership working. I say to the noble Earl, Lord Listowel, that our work with children is a very good example of how we can deliver that. We have been able to deliver that by working in partnership across the piece. We shall continue to work with our colleagues in DfES to do just that. The test bed areas that we have identified with DfES to look at the skills base and how we can work together will very much help us to embed co-operation and partnership working.

We do not disagree in any way with the ethos; we simply say that this method of working could best be delivered by the structure that we propose. We invite the Committee’s attention to the way Clause 3 is structured, enabling co-operation in a way that we think is proper. Therefore, I ask the noble Baroness to withdraw the amendment.

I am grateful for that explanation. However, there is very little difference between what the legislation proposes and what these Benches propose. There is an analogy with race relations legislation. It was all very well people talking about the Commission for Racial Equality and public authorities eliminating racial discrimination, but hardly anything happened until a duty was in place to promote equality. The same applies here. The provision places a duty on agencies and other bodies to co-operate. The ultimate aim is the same, but the amendment boosts that obligation and will be far more effective. I plead, as others have done, with the Minister to take this back, look at it carefully and see whether those bodies can co-operate much more closely than has happened so far.

I hear what the noble Lord says; that is why I drew the Committee’s attention to Clause 3(3)(a). Perhaps, for completeness, it might help if I read it out. It deals with the power to make arrangements for the provision of probation services. It says:

“Arrangements under subsection (2) may in particular authorise or require that other person … to co-operate with other providers of probation services or persons who are concerned with the prevention or reduction of crime or with giving assistance to the victims of crime”.

That enables us, through the commissioning process, to specifically provide in contracts that those with whom we contract must co-operate. We will look later at the detailed amendments. I have tried to indicate other legislation where we already have a duty to co-operate; for instance, there is a duty on CDRPs to do so. I hope as we go through the amendments that noble Lords will see that duty reinforced again and again. The ability to commission in a way that enhances our opportunity to co-operate is very clear. We can make those provisions. It reserves for the Secretary of State the power to do that appropriately.

The Minister is quite right to draw our attention to Clause 3. It enables the Secretary of State to do certain things, but would it not be much better if the co-operation arose from the local or regional area rather than from the top down?

That is why we are making changes to local area agreements and will be able to put them on a statutory footing. The partnerships that we have created are not restricted to crime and disorder reduction partnerships. Noble Lords will remember that we have local strategic partnerships, local criminal justice boards, CDRPs and the structures that we are now putting in place. Those will all be bound into the structure for putting local area agreements on to a statutory footing. We will be able to identify certain core issues that all local area agreements will contain, but there will be other issues that local areas will be able to better identify to meet their needs in a way that will enhance co-operation and joint working.

I say clearly to the Committee that all the things that we have looked at to date that have worked well have been predicated on various agencies working together. The reductions that we have seen, for instance, in crime and reoffending have been the direct result of conjoined work targeting issues which cause an increase in crime. Our structure gives us a good opportunity to consolidate that and to deliver. I am not saying that we will not take this away, but we have thought about it very carefully and tried to structure it to enable the procedure to deliver exactly what noble Lords wish.

It does, because the whole nature of what we seek to commission is to go across the piece. The Prison Service is incredibly important for offender management when people are incarcerated, but we need to develop services in preparation for prisoners going back into the community. There may be services that we will want to commission that will be part in prison and part in the community, which may be delivered by one entity that will go into the prison and start the work and then continue it outside the prison. It is about seeing offender management as a seamless whole, not separated into different compartmental areas that have no correlation. It is that bringing together which we need to be able to commission across the piece, and it is important for us to do that following a needs-based assessment: we must identify the needs and who could best meet them, and then structure and commission work to enable us to deliver that change.

First, I thank everyone who has contributed so constructively to this short but interesting debate. There has been much expertise from around the Committee. For example, the noble Baroness, Lady Stern, was able to explain the reality in Scotland from her first-hand experience. I was very interested in how the noble Earl, Lord Listowel, referred to children’s services, where there is a parallel. There was also a very powerful parallel with race relations from my noble friend Lord Dholakia. We do not differ so hugely; there are common areas. The fact that there are different structures does not mean that the issues are different. The point that I was trying to make, which the noble Baroness, Lady Stern, drew out, is that there is a real difference when you have the duty to co-operate in the Bill.

I welcome the support shown by the noble Baroness, Lady Gibson, in the first instance, and her question, because I still say that there is an extraordinary lack of mention of the Prison Service, which is a distinct body—we mention other distinct bodies. It is such an important part of the management of offenders that I find it unnerving that the Bill is completely silent in that respect. I was grateful to the Minister for highlighting the capacity and the potential of the structures that we already have. That was part of my argument.

I know Doncaster well. In fact the Butler Trust, which I was responsible for, has given recognition to resettlement work. Resettlement is between prisons and the community, and it has an incredibly important role; it specifically locks the Probation Service in to what we are doing. My belief, which I stick to, is that the duty to co-operate has the potential to change culture, as we have seen in a short space of time in Scotland. While I was grateful to the Minister for drawing our attention to Clause 3(3), the arrangements under that provision,

“may in particular authorise or require”,

another person, so it is still a kind of optional extra.

I thank everyone, including the Minister for her response. I hope that she may indeed consider a little more fully what we have been discussing so interestingly this evening. I may wish to return to this on Report, but for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Responsibility for ensuring the provision of probation services]:

[Amendments Nos. 16 and 17 not moved.]

18: Clause 2, page 2, line 34, after “State” insert “under any enactment (whenever passed or made)”

The noble Baroness said: I shall speak also to the other amendments standing in my name in this group. Last week, I acknowledged the perception that our proposals were an unduly centralising measure. I explained that, in fact, the opposite was true. I want to explore why we have come to that view.

Under the new arrangements, commissioning will be an activity taking place at national, regional, and local levels. We do not envisage regional commissioners directly holding myriad small contracts. In most cases, they will agree contracts directly with lead providers who, in turn, will subcontract much of the delivery of interventions to other providers. Commissioning is primarily a local activity for lead providers to organise for themselves within a framework agreed with the regional offender manager, delivering some services in-house, letting out contracts for others and engaging in partnership with others to secure the necessary services to reintegrate offenders back into their communities.

Working locally means working in partnership. The National Offender Management Service is already committed to working closely with all partners at a local level. As I have said, around 50 per cent of the resources that support offenders come from outside the criminal justice system. We have discussed the multitude of partnership arrangements in which probation services already play a key part. One of the most important developments in this area in recent years has been the establishment of local strategic partnerships—the LSPs to which I have referred. They bring together the public, voluntary, community and private sectors to co-ordinate the contribution that each can make to improving localities by agreeing on the priorities and co-ordinating their delivery. These priorities are developed into a local area agreement. LAAs are three-year agreements that set out the priorities for a local area and are agreed between central government and the local area represented by the local authority, and through the LSP, its key partner.

Probation has been an increasingly active partner in the LSPs. From April this year, all LAAs must include performance indicators to assist the LSP in assessing their progress on reducing reoffending. The Local Government White Paper, Strong and Prosperous Communities, published in October last year, set out fundamentally different arrangements for LAAs. The ambition now is for LAAs to provide local authorities and partners with the flexibility and capacity to deliver the best solutions for their areas by changing the way that central government do business with them and their partners. The LAA will become an outcome-focused agreement based on streamlined priorities and targets agreed between local partners and central government, ensuring effective and efficient services for local people. Some targets will be agreed in negotiation with government and will reflect national priorities; others will be purely driven by the LSP and will concentrate on more local priorities affecting local citizens and communities. Local area agreements will then form the central delivery contract between central government, local government and their partners.

In recognition of the critical importance of local area agreements, legislation currently being considered in the other place proposes to place them on a statutory basis. The Local Government and Public Involvement in Health Bill will place a new duty on the local authority and named local partners, including chief constables, police authorities, local probation boards, youth offending teams and fire and rescue authorities, to co-operate with each other in agreeing the relevant targets in the LAA. Therefore, as regards the earlier amendment, the duty to co-operate will be provided for by that Bill. It also places a new duty on the local authority and named partners to have regard to specific targets agreed in the LAA.

Despite what some people have said, the proposals in this Bill today are entirely consistent with the devolutionary thrust of the local government White Paper and with the proposals in the Local Government and Public Involvement in Health Bill. I hope that noble Lords will recognise that these amendments are proof of that.

Noble Lords might find it useful if I take them through the effect of each of our amendments to clarify how they interrelate. Amendments Nos. 18 and 19 to Clause 2 are minor and consequential. Amendment No. 18 reflects the fact that the Local Government and Public Involvement in Health Bill has yet to be enacted. Amendment No. 19 tidies up Clause 2(1)(c) to make clearer the effect of the cross-references to Clause 2(1)(c) in Amendments Nos. 42 and 133. Amendment No. 42 to Clause 3 states that the Secretary of State may delegate specific functions to other persons in specific circumstances, as provided for in the substantive amendment, Amendment No. 133. That amends the Local Government and Public Involvement in Health Bill by adding the Secretary of State, when exercising his functions for ensuring the provision of probation services, to the list of partner authorities that will be placed under a duty to agree and have regard to local area agreements. That amendment states that the power to delegate, established in Amendment No. 42, also applies in this case.

We have drafted the amendments in this way because we know, after speaking to organisations such as the Local Government Association, that we must ensure that all parts of the commissioning system are accountable under the new arrangements. This would not be achieved simply by transferring the duty to probation trusts or by giving a general duty to the Secretary of State, as the noble Lord, Lord Ramsbotham, has suggested in his amendment. I am sure that he will have more to say on that.

In practice, these government amendments mean that the duties relating to local area agreements will rest on the regional offender manager as the representative of the Secretary of State. The regional offender manager will then delegate that duty to the lead provider, which in most cases will be the probation trust. The lead provider will engage with other partners in the local strategic partnership to agree and implement the local area targets. This will be strengthened by the commissioning process. Regional offender managers will be under a duty to ensure that lead providers are appropriately funded to fulfil their obligations under the LAAs, and lead providers will be under both a statutory and contractual duty to meet those obligations.

The Local Government and Public Involvement in Health Bill also places partner authorities under a duty to provide information and to have regard to reports by the relevant local authority overview and scrutiny committees. Our amendment places both the regional offender manager and the lead provider under a duty to co-operate with the relevant overview and scrutiny committee as regards the relevant targets in the local area agreements—although, in most cases, it will be the lead provider in the first instance. This is crucial, because it ensures that both lead providers and regional offender managers can be scrutinised by local communities for the way in which they deliver the relevant local priorities. The amendments ensure that probation providers will be placed centre stage under the new arrangements to deliver local priorities to local people. On that basis, I hope that noble Lords will feel able to support the amendments.

I have taken a little time in my explanation. When I responded on the earlier amendments, I tried to indicate why the duty to co-operate was clear, but I hope that noble Lords will see how in these amendments we have sought to reinforce and underline that duty so that it will be real, immediate and accountable. I beg to move.

I am very grateful for the care and detail with which the noble Baroness explained her amendments. I do not think that my amendment in any way contradicts what she said. I put it forward in the first place because I was very concerned about the place of local area agreements in the work done locally by probation services. Frankly, I did not see that reflected clearly enough in the Bill and I therefore tabled Amendment No. 127. It was suggested by the marvellous Public Bill Office, whose work I could not praise more, that this was the best place to put in something which did not appear to have another home. The amendment has—rightly, I think—been grouped with those proposed by the noble Baroness because they refer to exactly the same thing.

There is an underlying question about local area agreements which I referred to at Second Reading. One thing that concerns many people regarding the provision of probation services is what is done to supervise low-level offenders. One great government success in the whole criminal justice area is the introduction of youth offending teams run by local government to look after young offenders. For a long time, I have felt that one of the best ways of doing that—and one way of reducing the strain on senior probation officers, making use of the partnerships being developed by all the organisations and trusts mentioned by the noble Baroness—would be to establish separate adult male and female local offender teams, also under local government, so that the partnership was used to do the work which has been so admirably proved by the youth offending teams. The local area agreement would be the vehicle by which to set up those teams. The requirement on local areas to produce them would in any case need to come via a direction from the Secretary of State to make certain that it was a duty, and I suggest that it would come in exactly the same way as it has done from the Youth Justice Board to establish the youth offending teams. I entirely accept that the local area agreements would have to be subject to the agreement of all the players on both the delivery and commissioning sides. Thankfully, the machinery for that exists.

However, I am slightly concerned about the targets for assessing reduction in reoffending, which we will be discussing later. Reduction in reoffending is a phrase that is used a great deal but, in any case, we are not certain what reduces reoffending. We do not know the results of particular programmes in terms of such a reduction, and I should be grateful if the noble Baroness could expand on that. I am concerned about placing targets on something which is impossible to measure in case it derails the very important process of involving local areas in the commissioning of local measures to deal with offenders who live locally.

First, I welcome the Government’s explanation of the amendments in this group. The Local Government Association welcomes the duty to co-operate with the local authority in the preparation of local area agreements. However, since tabling the amendments, has the Minister had any further discussions with the association? The LGA seeks clarity on how this measure will work in practice, particularly with regard to the development of partnerships between local authorities and agencies for the prevention of reoffending and improvement targets in relation to both the supervision and rehabilitation of offenders. This is consistent with the Local Government and Public Involvement in Health Bill and seeks to develop local area agreements as the primary means of achieving joined-up working across agencies to reduce reoffending. I am satisfied with the Minister’s explanation, but will she take an early opportunity to satisfy the Local Government Association about the purpose of the government amendments?

I very much appreciate what the noble Baroness has told us; it certainly helped me to see my way through these complexities. I am very glad that we have now got round to talking about where decisions should be made, whether nationally, regionally or locally. I preface my remarks by confessing that I have a preference for things being as local as possible, and I would be in favour of a much more localised criminal justice system. It would help local people to understand and trust the system, and local and visible criminal justice activities would be likely to raise confidence in it. It would enable us to have much more diverse provision because crime is very local. We know that the home addresses of those who are convicted are concentrated in certain areas, and that calls for an extremely specific and localised approach. If criminal justice were more local, it would encourage local services to have ownership of their ex-offenders. It would also enable the money that is spent locally to be assessed to see whether it really benefits the local area.

I hope that the Minister can help me here, as I did not quite understand her explanation. I understood—although I am probably wrong—that a local area agreement is a decision between the centre and a local area that money from a government-devised programme will be passed to a local area and incorporated into its budget so that the local area can decide how it is spent, provided that outcomes are set out which are acceptable to all those involved. I certainly thought that that was what local area agreements implied. From what I have read about them in the past, they are a transfer of decision-making power from a central department to the local level in return for an agreement about outcomes. Is that what the noble Baroness was saying? There is certainly a lot to be said for local decision-making by people who live with the problems: they should have the ability to decide. However, I did not hear the noble Baroness say that there would be local decision-making. I have heard that the commissioning will be done by a regional person who is the agent of the Secretary of State. I understand that, in the end, local people and local structures can be involved, but there is nothing local about this system at all. Ultimately, Whitehall decides. I should be grateful if, in responding, the Minister could tell me whether I am wrong—or not, as the case may be.

Where does this leave the role of the regional offender managers? The explanation given by the Minister suggested a secondary, possibly even a minimal role for regional offender managers in this process—certainly not one that justifies the substantial staff they are getting. If I heard her correctly, I also heard her say that regional offender managers can be scrutinised, but I was not quite clear how that process will operate. Since that is the core of a lot of our concerns about the Bill—the degree of local autonomy and the extent to which the commissioning authority is being shifted up from the local to the regional level, and thus to the national one—it is an important point.

I am grateful to the Minister for pointing out the local arrangements, and government Amendment No. 42 will allow the Secretary of State to delegate his role as the provider of probation services to any such person that he decides is appropriate.

This issue is of some concern, as will become clear during the debate on our amendments in the group beginning with Amendment No. 34. We would like to see the role of the Secretary of State as provider of probation services categorically restricted. However, as I will make clear, it will be very important to maintain the role of the Secretary of State as overseer of overall provision. Amendment No. 42 seems to enable the Secretary of State to relinquish direct responsibility for the provision of services in,

“providing for the delegation of that function”.

What safeguards will support the amendment?

I support Amendment No. 127, tabled in the name of the noble Lord, Lord Ramsbotham, on local area agreements being developed as a primary means of achieving joined-up working across agencies, to reduce reoffending and to hold those agencies to account. I was very interested to hear what the Minister said.

As we know, there is already a level of integration between offender management and LAAs, and of course local partnership working is key to tackling reoffending. The Local Government Association is strongly behind this, as are we, not least because it is a means of tapping into an established structure and process, and does not require reinventing the wheel. As I have already argued, the duty to co-operate on offender management between probation services and providers would help move the reduction of reoffending close to the mainstream and change the culture of local partnership activity by integrating offender management with LAAs and LSPs. Importantly, that would also ensure that these services were more accountable to local people.

This echoes exactly my earlier Amendment No. 2, in that the detail is vital. More clarity is needed on how this will work in practice, especially on how partnerships will be developed between local agencies and the agencies for the prevention of reoffending, and the targets for the supervision and rehabilitation of offenders. Just as the Scottish model has begun to implement, this will involve joined-up working across agencies, and it echoes our discussions earlier in this Committee and our concern that what must be in place is a coherent strategy generally and properly understood, so that confusion, overlap and fragmentation do not occur. It will also require a certain cultural change that will be both challenging and welcome.

Like my noble friend Lady Stern, I was grateful to the Minister for explaining the government amendments. Nevertheless, I think I am right in saying that she said that some services would be commissioned at regional or national level, and would then be subcontracted down towards the local level. I am not a lawyer, but I can foresee that considerable questions might arise of legal liability and responsibility for all those services. Therefore, any subcontracts would need to be crystal clear and make it very plain who was responsible for what, particularly if both statutory and commercial bodies were involved in this process.

Turning to Amendment No. 127, spoken to by my noble friend Lord Ramsbotham, I state my support for what he is trying to achieve, and perhaps put into his mind the possibility of including the prevention of not only reoffending, but offending in the first place.

I thank the Minister for the clear explanation that she gave earlier of the Government’s intentions, which I look forward to reading in Hansard. Perhaps she can give an example of how it might work with psychiatric services, for instance, and how the local primary care trust will be drawn into it. That would be helpful for me.

I thank all those who have contributed, especially the noble Lord, Lord Dholakia, for raising the issue in relation to the Local Government Association. Noble Lords will know that as the Bill went through the other place, there was intensive negotiation and consideration for a number of partners, not least the Local Government Association, because we very much wanted to clarify the position in a way that would help to give confidence that we meant what we were saying. As the local government Bill was going through the other place, it was a good opportunity to reflect that arrangement here. I very much take what the noble Lord says, and I shall be happy to ensure that there is continuing satisfaction with local government on that basis.

Much of what we are now doing is predicated on the work that has already been done with local partners through the local strategic partnerships for the creation of the local area agreements. The LSPs have been very important because they bring together agencies from across the spectrum, which have worked with increasing intensity and with increasing success.

Turning to the point made by the noble Baroness, Lady Stern, the local area agreement will include a limited number of local improvement targets—around 35—which have been agreed collectively across central government and with the local partnership as being the highest improvement priorities for the area. In addition, there will be up to 18 pre-existing statutory educational attainment targets, together with the 35 others, which will be called the designated targets and will be drawn from the national indicator set described in the 2006 local government White Paper. That will give the call, but it will allow sufficient flexibility to enable those issues that are germane and pertinent to a local area to be better addressed, better targeted and better understood.

I shall deal with the question about PCTs raised by the noble Earl, Lord Listowel. There is a better opportunity, through the local strategic partnerships and the local area agreements, to jointly commission services. I will give an example. The regional offender manager for the south-east, Sarah Payne, is now working with the regional commissioner at four PCTs to look at how they can jointly commission health services to assist those who offend. There is an opportunity to link the local commissioning in a way that will add significant value to it. The agreement, to which I referred, will set out the priorities for the local area agreed between central government and the local area, represented by the local authority and through the local strategic partnership—its key partners—as I tried to make plain. The importance of the regional offender manager is that the manager will be responsible for doing the needs-based assessment to identify with whom he or she will need to contract.

The majority of the work is therefore likely to be contracted through the local probation trust. However, there may be regional and national services which it would be more efficacious to commission nationally or regionally. The noble Baroness, Lady Howarth, gave us an indication of where that might be so—services directly attributable to sexual offending, for instance, where a regional structure may be better able to meet the needs of the client group than a local structure when the local area may have few offenders who fall into a category with that specialist need. You will therefore have to look at commissioning a service in a regionally specific point, maximising the opportunities of a number of different areas having access to it. To take up the point of the noble Lord, Lord Hylton, it is not just the subcontracting—although that is important, which is why the contractual terms will be important. Being precise about the contractual terms, to clearly define which role will be provided by which entity, is also important. I agree with the noble Lord that contracting is important.

We already have some good examples of how CDRPs are influencing delivery on the ground. Again, I give an example of the CDRP I visited in Sheffield on Friday. I spoke to a number of partners—police officers, local authorities and others—who say that they are looking at things in a different way. The assistant chief constable—the chief constable was also there—told me about how they analyse the education issues, such as where the problem schools are, and correlate with the accident and emergency units. They are pooling this information, so each agency is now taking into account information that it would not hitherto have done, in order to set its priorities. The 44 action areas identified for the CDRPs are looking at the hot spots, which are usually for health, education and crime, and trying to work together. The local area agreements also allow them to do that.

I hope that the Committee feels that the ability to work through local strategic partnerships and local criminal justice boards, and using the new local area agreement process, will help us to deliver better services and scrutiny at local level. The scrutiny committees are there to give oversight and a better view. That is why the local government Bill places the partnership authorities under a duty to provide information and have regard to the reports by the relevant local authority overview and scrutiny committees. Our amendment means that both the regional offender manager, as I said earlier, and the lead provider will be placed under a duty to co-operate with the relevant overview and scrutiny committee on the relevant targets in the local area agreements. In most cases, of course, the lead provider will be dealing with that in the first instance.

I hope that that clarifies the issues, and that the amendment can now meet with the Committee’s assent. I hope it is also clear that I do not think that the amendment of the noble Lord, Lord Ramsbotham, is necessary, because it is assumed within the government amendments.

I have already referred to the duty to co-operate, which will be in the local government Bill, not this one. It will be in the Bill setting up the CDRPs and the Bill going through the other place referring to the local area agreements. Clause 3 of this Bill, which I referred to, will bind the Secretary of State. The Secretary of State will be bound to co-operate by the clauses in the local government Bill, as I have indicated. If the noble Baroness would find it helpful, I can send a note correlating the bits of this Bill and the local government Bill so that noble Lords will see how the two fit together and how what they wish to see will be delivered in practice.

I am slightly confused by one thing that the Minister said, which was that the regional offender manager Sarah Payne was commissioning health services for offenders at a regional level. Surely it is not the case that people under the supervision of the Probation Service lose their access to the local NHS and must have services commissioned for them separately at a regional level.

No. The noble Baroness has either misunderstood me, or I have been less clear than I should have. I said that the regional offender manager, Sarah Payne, was working with a health commissioner, Dr Jo Nurse, to look at provision issues. Two sets of people are commissioning at the same time—the National Health Service and the regional offender management. Working together, those two commissioning structures have an opportunity to ensure and better define how we meet the needs of some vulnerable groups, one of which is offenders. We wish to enhance our ability to deliver services to them.

Members of the Committee will also remember that the health service is now responsible for delivering health provision, both in prisons and the community. Working together in partnership is critical if we are to better understand what each must commission to meet the identified needs of the population it serves. I was merely giving that as an example of how working together will, we hope, deliver better results.

Is the noble Baroness aware that Napo, the probation officers’ organisation, strongly believes that moving to a regional or national model will undermine important public protection work with significant partners such as the courts, police, health service and local authorities? It believes that, instead of a centralised control model, the future direction of probation should be a further shift to local accountability. That is the view of people who already work in the Probation Service.

I hope that what I said earlier underlined how much we agree with my noble friend that local delivery is important. The amendments make clear that we will be enhancing the ability to deliver locally. The regional offender manager, as I hope I clarified, is likely to use the lead provider, likely to be the probation trust, as the first port of call for delivery of local issues. However, there are needs which may or should be better met nationally or regionally. The regional offender manager will be in a position to consider how those needs can best be met. The procedure we are adopting will not pool things in the centre. The way in which we have structured it will enhance local delivery and accountability.

That is why I hope that what I have said will be reassuring to Napo and other organisations that might be concerned that local flavour is being diluted or diminished. Our case is that it is not; in many ways, it is being enhanced. The overview and local scrutiny, the binding of local area agreements into a statutory model, the accountability, the duty placed by the Bill on named partners—including the chief constable, the police authority, the local probation board, the youth offending teams and the fire and rescue services—to co-operate with one another, and the placing of a duty on the local authority and the named partners to have regard to the specific targets will enhance local accountability. The fact that the Secretary of State will be included means that we will also bind the regional offender managers into that structure.

Is the Minister satisfied that the plans she outlines sufficiently take into account the financial implications? Many of the organisations that she listed have tight budgets. I have experienced organisations working through the first nine items on an agenda very satisfactorily, but people somehow having meetings that they have to get to just before the item about sharing the cost comes up.

I know that the noble Lord speaks from painful experience. I have found the change in culture helpful. I can give the Committee the example of creating local criminal justice boards, which mean that partners understand each others’ difficulties better. Two years ago, I knew that we had succeeded when a chief constable lobbied me very hard indeed for more resources for the CPS; I knew that we had arrived. There are other examples; for instance, on Friday, I was talking to the CDRP in Sheffield. Most of the partners were there, and they were talking energetically about what they needed to do together. There was evidence of them having pooled resources. They had identified things that none of them could afford, but as each of them had a little money, they put it together and achieved real results. I have had chief constables saying that they are working in partnership with colleagues from the DfES and local schools and are pooling money. One must not be too pessimistic. Partnership working has started in good spirit and has encouraged the pooling of resources on a voluntary rather than an enforced basis, because local partners have seen that it made sense locally.

I am grateful for what Members of the Committee have said about this and about my amendment. I shall make two specific comments before commenting generally. First, in answer to the point made by my noble friend Lord Hylton, my amendment does not mention reoffending because I am concerned about the measurement of reoffending, but I take his point about the prevention of offending. Secondly, the Minister will not be surprised that I was pleased to hear what she said about the regional offender manager in the south-east talking with primary care trusts in the south-east, because I presume that there might now be some hope of speech and language therapists being introduced to make the proper assessment of young offenders; all primary care trusts would be encouraged to introduce them, and they are of huge benefit in the management of young offenders.

I take the Minister’s point about the partnership, and I have no argument with it. One of my purposes in tabling my amendment was to make certain that there was a better description of what local area agreements are all about, because it is not immediately clear from the Bill. The Minister explained precisely what has been going on in the local government Bill and so on, which will not be immediately apparent to those who pick up this Bill. Therefore, I ask that what I have set out in my amendment is taken into account and that consideration is given to including it as an explanation to help people understand what we are trying to achieve.

On Question, amendment agreed to.

19: Clause 2, page 2, line 35, leave out “section” and insert “paragraph”

On Question, amendment agreed to.

[Amendment No. 20 not moved.]

21: Clause 2, page 2, line 37, at end insert—

“( ) The Secretary of State must liaise with representatives of all sentencers to—

(a) provide information about programmes and performance from all providers of probation services; and(b) consult with representatives of all sentencers before making or renewing a contract with a provider of probation services.”

The noble Viscount said: Amendment No. 21 is tabled in my name and that of my noble friend Lady Anelay, and I am grateful to the noble Lords, Lord Judd and Lord Ramsbotham, for adding their names to it. We tabled it in response to concerns expressed by the judicial policy and practices committee of the Magistrates’ Association about liaison with magistrates. It requires the Secretary of State to liaise with representatives of all sentencers to provide information about what is happening on the ground regarding the quality and availability of probation programmes. It also requires the Secretary of State to consult with representatives of all sentencers before he or she makes or renews a contract with any provider of probation services. Local benches can have an invaluable role to play in ensuring that the provision of probation services meets local needs. I beg to move.

I support this amendment for practical reasons. I served as a magistrate, and one of the most interesting developments was the probation liaison committee in which magistrates and probation officers met regularly. That allowed us to know about programmes being promoted by the Probation Service in the area, which were tailored to individual need, and about the performance of individuals within programmes. Sentencers, particularly magistrates, benefited from those liaison committees and from knowing about the work of the Probation Service and about what was happening to individuals.

When such an arrangement has been established, we need to be very careful, particularly when talking about contract renewals. It is important to find out what has worked, what has not and what needs to be done in future before renewing a contract. The suggestion in this amendment is worthy of consideration by the Government.

I support this amendment because it re-emphasises the important link between probation and the courts, which has been at the heart of the delivery of the Probation Service since it was formed. It is important to maintain that and, as the noble Viscount, Lord Bridgeman, said, to make certain that the voice of sentencers, particularly magistrates in a local context, is properly heard in the assessment of the provision of services.

I support this amendment because it is essential that sentencers understand the implications of what they are doing and are informed about the possibilities. That is essential to the policy of good sentencing, and this amendment is a practical, sensible step in that direction.

One cannot underestimate the importance of the influence of judges and magistrates in the development of the Probation Service. Over the years, their involvement has been crucial. It is unfortunate that one of the consequences of the new scheme is that the direct involvement of judges and magistrates will be lost. We must somehow make sure that we do not finish up with their expertise being ignored. In spite of these changes, we must devise a way in which their influence can still be brought to bear. We must ensure that there is a procedure whereby sentencers can make known their views on the performance of providers. This amendment is crucial.

I, too, support the amendment wholeheartedly, not least because it reflects exactly the work that we have been doing with Rethinking Crime and Punishment, an organisation which I chair in the Thames Valley. I reassure the noble Lord, Lord Waddington, that we have been finding constructive ways of doing precisely what he suggests.

It is an important amendment because it reflects the reality that currently there is all too often insufficient information and understanding about what sentences or community penalties are available to sentencers—in particular, about their quality and effectiveness. That is a constantly changing picture because such provision represents an organic process, often defined by the people who make it work. Of course, that is never static.

Judges and magistrates are very busy people, and keeping in touch with the realities of what their briefing papers may say involves direct contact and dialogue with providers. Our experience in the Thames Valley has demonstrated that that is a very rewarding process—essential to developing confidence in community penalties as alternatives to custody.

The key to that is that the communication between the sentencer and the provider is at first hand, at the point of delivery, on a human level, so that the relevant issues can be understood. While that may seem burdensome at first glance, our experience is that judges have been coming back for more, so rewarding have their experiences been.

The requirement in the second part of the amendment on the Secretary of State to consult with sentencers before making or renewing a contract ensures proper communication and should, if properly done, ensure that best practice is indeed promoted and clear ideas of what works can be developed.

The only caveat to this excellent and essential amendment is that, along with so much else in the Bill, it requires resources of both time and money to ensure that it works as envisaged. I hope that we can have some reassurance on that from the Minister.

I certainly support the amendment tabled by the noble Viscount, Lord Bridgeman. It takes me back to when I was a juvenile court magistrate chairman for many years. Before the Children and Young Persons Act 1969, we had such a partnership with probation, social services and other experts sitting together and going through the whole process. As has been pointed out, that is a mutual learning process. You can certainly take in other views but, above all, you are following the effect that it has on the young offender. I very much support that.

I also support the point made by the noble Lord, Lord Waddington, that that brings back into one's mind the concern about who will serve on probation trusts, if the name is to be changed and the grouping of people on them is to be very much reduced. I am not even certain whether members of local government will be serving, or whether that will be only where it is practicable. Someone from the local authority ought to be present, but so ought others with direct experience who can follow through the process as they can now.

I very much support the amendment and I hope to hear more about who is likely to serve on the trusts, if they change from probation boards to trusts, so that we can be gradually reassured on that point.

The amendment touches upon this crucial issue, and I am grateful to all noble Lords who have contributed to this short debate. There is not much disagreement between us about the importance of ensuring that sentencers have that important relationship with probation staff. That relationship cannot be overstated. I was interested to learn of the long history behind this. Reflecting on my experience in this field some years ago, I appreciate and understand why noble Lords place such a high importance on it.

It is for that very reason that we have worked hard to ensure that arrangements are and will be in place for liaison with sentencers. Existing and effective local liaison arrangements allow sentencers and probation managers to meet to discuss local issues and address local operational difficulties. These will, of course, continue under the new system, and work is under way to adapt them to the new configuration.

I also hope that noble Lords will be reassured that we will ensure through a protocol that regional offender managers have continuing appropriate links with sentencers at the regional level, which will inform their decisions about which services to purchase at a regional level best to meet the needs of offenders. The terms of the protocol are currently being agreed between NOMS and the senior presiding judge. An important communication, understanding and information exercise is under way at that most senior level. The voice of sentencers is critical in helping commissioners to develop their plans nationally, regionally and locally.

However, we must draw the line at formal consultation with outside parties on decisions about to which organisation to award a contract, as those must follow proper commercial and procurement procedures. For that reason, we need some flexibility to ensure that those commercial and procurement procedures are properly constituted. We entirely agree with noble Lords who expressed their support for the important relationship between the service and those involved in sentencing. We intend that that will continue.

Later, we will debate the issue of magistrates on boards or probation trusts and we can have further reflection on that then. In that context, it is perhaps worth saying that in the recent recruitment round from members of current boards, we undertook actively to encourage sentencers to apply, with the result that the majority of recruiting boards will have at least one member who is a magistrate or justice of the peace. That link is already reflected in our approach and we hope that noble Lords will find our assurances in line with their thinking on the matter. I do not think that there is much between us on this issue.

Can the Minister explain what structures there are with sentencers at regional level with whom it would be possible to consult about provision?

The regional offender management structure will develop those links. We think that that structure will command importance and that is where there will be the scope for input, whose value we all recognise. If the noble Baroness would like, I am happy to set out more detail in writing, so that more shape is given, and share that with the Committee.

I am grateful for the wholly constructive support from all around the Chamber for the amendment. I find the Minister’s reply slightly disappointing. He refers to arrangements being in hand for liaison, and so forth. The purpose of the amendment is to see that enshrined in the Bill. We shall go back to the Magistrates’ Association on this, and it is very likely that we shall revisit the matter later in our consideration of the Bill. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

22: Clause 2, page 2, line 37, at end insert—

“( ) In carrying out his functions under this Act the Secretary of State shall—

(a) if he is not sworn of section 6A of the Promissory Oaths Act 1868 (c. 72) act in every respect as if he had sworn and was bound by the oath set out in section 6A(2) of that Act;(b) undertake no action to advantage the probation services by transferring, or threatening the transfer of, resources from those necessary for upholding the independence and effective functioning of the judiciary;(c) in reaching his judgment on the appropriateness of his actions under paragraphs (a) and (b) above, consult the Lord Chief Justice of England and Wales as President of the Courts of England and Wales and lay before both Houses of Parliament any representation from the Lord Chief Justice that he is not conforming with his duty under this section.”

The noble Baroness said: The amendment goes in a slightly different direction from that taken in the debates that we have just had about the provision of services per se. The Government’s plans for contestability in the Bill, and their creation of the centralised NOMS/ ROMS bureaucracy, have significant budgetary consequences. The transfer of these functions from the Home Office to the Lord Chancellor creates new tensions in the budget of the Ministry of Justice. We fear that effective management of the extensive bureaucracy created by the Government to run the centralised contestability system would endanger the delivery of budgets to those who really make the difference—not, of course, the ROMS managers but the probation service providers on the ground. Costs may burgeon to pay for the centralised system. Our concern is that the transfer of the management of offenders to the Ministry of Justice could lead to funds being redirected from existing spending requirements in the old DCA to the needs of the NOMS/ROMS model and more generally to the running of the prisons.

The amendment would ensure that the Lord Chancellor in the newly created Ministry of Justice did not allocate his budget in such a way as to remove from the court system the funds that are required for upholding the independence and effective function of the judiciary and the magistrates. This matter has been touched on twice very recently, the first time on 26 April, in a statement in this House on the creation of the Ministry of Justice. At that stage, the noble and learned Lord, Lord Woolf, put the matter clearly when he asked,

“is the noble and learned Lord aware—as I am sure he is—of the concerns of the judge in charge of the Central London County Court as to the lack of resources? As I understood it, the statement that he made was certainly not only in relation to maintenance; he referred to a crisis in the civil justice system”.

The noble and learned Lord the Lord Chancellor rather batted that away, but did not address the central objection. He said that,

“judgments have to be made as to where you have to spend your resources to ensure that there is a legitimate and fair justice system”.—[Official Report, 26/4/07; cols. 769-70.]

How exactly will that be done, particularly given that the prison and probation services have been transferred to the Ministry of Justice?

In the same debate, the noble Lord, Lord Thomas of Gresford, reminded the House that the revised oath for Lord Chancellor in the Constitutional Reform Act 2005 reads as follows:

“I … do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”.

The noble Lord, Lord Thomas of Gresford, then asked whether the noble and learned Lord the Lord Chancellor was,

“prepared to give us an assurance that the resources for the courts will be ring-fenced and that the resources available to the judiciary and court system will not be reduced by the demands of the prison population”.—[Official Report, 26/4/07; col. 767.]

The noble and learned Lord the Lord Chancellor refused to give that assurance, so understandably my noble friend Lord Kingsland took up the cudgels in a further statement on 9 May, at col. 1454. I shall not repeat what he said, as the Committee may read those words. He reinforced the argument put by the noble Lord, Lord Thomas of Gresford, by asking how we could be sure that the money will be ring-fenced to ensure that judicial independence remains and the demands of prison and probation do not drive the policy governing judicial independence.

I note, of course, that the Judicial Executive Board and the Judges’ Council endorsed the position that the noble and learned Lord the Lord Chief Justice and other members of the judiciary have taken to date, and expressed their support for the continuing efforts to reach agreement. Last week, on 16 May, the noble and learned Lord the Lord Chief Justice issued a press statement saying that there had been a meeting between the Judicial Executive Board and the Judges’ Council to consider the present state of the working group discussions between members of the judiciary and senior Ministry of Justice officials on the constitutional safeguards to protect the independence of the judiciary and the proper administration of justice. The noble and learned Lord the Lord Chief Justice had to report to the meeting that no agreement had been reached with the noble and learned Lord the Lord Chancellor. I therefore thought it right that we should table this amendment, particularly in light of the fact that the noble and learned Lord the Lord Chief Justice is due to appear tomorrow before the Constitutional Affairs Select Committee of another place and that he will present a full report on the current position to Parliament. That report will address the whole issue of judicial independence, which is the background to the amendment.

Will the Minister tell the Committee exactly what sums her right honourable friend the Chancellor of the Exchequer, who is soon to be Prime Minister, is transferring from the Home Office budget to the Ministry of Justice budget to cover the cost of NOMS and ROMS? How much has already gone since the Ministry of Justice took over these powers, and how much will be transferred in the rest of the financial year? Will the Government reconsider their position on ring-fencing so that we can be assured that there will be sufficient resources to uphold the independence and effective functioning of the judiciary? I beg to move.

I express the gratitude of Members on these Benches to the noble Baroness, Lady Anelay, for raising this very important issue once again. The question is really about resources. Will there be enough to have a fair and effective judicial system, or will the judges be constrained by their budget in certain important ways, the most important of which being the sentences that they pass? If the Sentencing Guidelines Council has to take resources into account when determining appropriate sentences, and if judges must take available prison places into account in order to be able to send people to prison, we will have introduced a very new concept into the sentencing policy that has heretofore governed the English legal system. Judges have always regarded it as their duty, not to mention their prerogative, to sentence offenders as they think fit. It is then for the Government of the day to provide the resources necessary for those sentences to be put into effect. A clear distinction has therefore been drawn between the function of the Home Office, in providing prison places, and the judiciary, who are to sentence according to the justice of a particular case and not according to what resources are available.

Will the Minister be good enough to share with us the thinking behind the transfer of the prison and parole system to the Ministry of Justice? What was the purpose of that? Why did the Home Office not retain it? We on these Benches have been taxed from time to time in the past few weeks by the fact that the creation of a Ministry of Justice has for some years—someone said 60 or 70 years—been the policy of the Liberals and the Liberal Democrats. Only yesterday, I discovered a paper that we had written on this topic 30 years ago. Very relevant it was; Liberal policies do not die away. The proposal did not, however, include the transfer of the penal system, whether incarceration or probation, to the Minister for Justice whom we had in mind. There are great dangers in this, as the judiciary have warned. A working party has been set up, although it has not reported. There is still a lot of work to do. At this stage, I have only two questions. First, why were prisons and penal matters transferred to the Ministry of Justice? Secondly, can we be assured that any ring-fencing will not impinge on the administration of justice in this country?

I have found this debate interesting, but perhaps I may gently remind the Committee that machinery-of-government changes are within the province of the Prime Minister. With this Bill, we seek to understand how the clauses will operate. It is important to differentiate between the role that will be played by a Lord Chancellor and the role which will be played by a Secretary of State for Justice. During our debate on the first group of amendments, which I do not think the noble Lord, Lord Thomas of Gresford, had the opportunity to enjoy, we discussed the difference between the two.

However, it may be important for me to do so again because the concern underlying this amendment seems to be that bringing together the responsibilities for probation with those of the judiciary will jeopardise the ability of the Lord Chancellor to exercise his responsibility towards the judiciary. I want to reassure the Committee that that is not the case, because a strong independent judiciary is fundamental to any criminal justice system. The Lord Chancellor and Secretary of State for Justice has a clear statutory duty to uphold the independence of the judiciary in a way that is proper, as set out in the Constitutional Reform Act 2005, which my noble and learned friend will continue to do.

On this occasion, the substance of the amendment is misconceived, although I understand why the noble Baroness uses it as a vehicle through which to have this debate. Either the Secretary of State is the Lord Chancellor, in which case he has responsibility for the judiciary and is bound by the Lord Chancellor’s obligations to the judiciary, or the Secretary of State is not the Lord Chancellor, in which case he has no responsibility for the functioning of the judiciary anyway. The Lord Chancellor has a statutory responsibility under the Courts Act 2003 in regard to the courts and the judiciary to,

“ensure that there is an efficient and effective system to support the carrying on of the business of”,

the courts,

“and that appropriate services are provided for those courts”.

He is required by the 2003 Act to ensure, in consultation with the Lord Chief Justice, that there is an efficient system to support the exercise of the business of the Supreme Court—that is, the Crown Court, the High Court and the Court of Appeal—and county and magistrates’ courts, and that appropriate services are provided for those courts. Under the Act, he is also required to take steps to ensure that lay justices are kept informed of matters affecting their areas and that their views are taken on issues affecting them.

The Lord Chancellor exercises that function in line with his duty under the Constitutional Reform Act 2005 to have regard to “the need to defend” judicial independence,

“the need for the judiciary to have the support necessary to enable them to exercise their functions”,


“the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters”.

The functions of the Lord Chancellor in respect of the judiciary and the financing of the courts are entrenched in the office of Lord Chancellor; that is, they cannot be removed and given to another Secretary of State without primary legislation, which we referred to earlier. The only way in which the Secretary of State responsible for the Probation Service could be both not the Lord Chancellor and responsible for the justice system would be if Parliament had agreed that this should be the case. Given that clarification, I hope that the noble Baroness will be content to withdraw her amendment.

I am delighted that the noble Baroness recited the oath that the Lord Chancellor has to take when he accepts that office. It is a powerful oath, which is aided by the only four words that she did not read out and which some may think that he will need it: “so help me God”. That is the burden placed on the Lord Chancellor.

Members of the Committee are right to say that there has been progress. There is progress in the working group and attempts have been made to reach agreement on how to expand the role of the judiciary in budget setting. Those processes are continuing and the Judges’ Council has expressed its support. We do not think that ring-fencing is appropriate, as the Lord Chancellor may from time to time, depending on priority and need, have to transfer money from one part of the system to another. Crucially, he is under a statutory obligation to provide adequate funding for the effective and efficient functioning of courts. No matter what allocation he makes, his duty as described in the Act will be maintained. As I explained earlier, the functions were transferred because it was felt that that would make for a more efficient and effective criminal justice and justice system.

Of course, the Office for Criminal Justice Reform remains. The conjoining of the work between the Attorney-General, the Home Office and the Ministry of Justice remains. Therefore, the ability to deliver a just and fair system, we believe, is greatly assisted and enhanced. The figures in relation to resources will be published in the ordinary way.

I am grateful to the noble Baroness for telling me that the answer to my question on why the Prison Service has been transferred to the Ministry of Justice was debated earlier; I shall read about that in Hansard and, no doubt, learn from it. But I end up rather confused. I thought that the Secretary of State who would be called the Minister for Justice would be the Lord Chancellor. However, from what the Minister said, there appear to be two separate roles; namely, the Lord Chancellor, being true to his oath, providing resources for the judges and ensuring that the rule of law is maintained and so on, and a Minister for Justice, who was referred to as a Secretary of State, fulfilling a different function. Did the Minister say that? If she did, is this news for what is about to happen when the Prime Minister-elect takes office? I understood that the noble and learned Lord, Lord Falconer, was at the moment fulfilling both functions.

I say again that I am sorry that the noble Lord was unable to be with us to enjoy our earlier debate. As I made plain then, currently the Lord Chancellor and the Secretary of State for Justice is the same person, which may remain the case in perpetuity. However, it does not necessarily have to be so. Machinery-of-government changes are possible in relation to all offices, save the office of Lord Chancellor. The noble Lord will recall that, when we were dealing with the provisions relating to the Lord Chancellor, it was determined by both Houses that the critical core responsibility of the Lord Chancellor should not be amenable to normal machinery-of-government changes. Before any change could be made in relation to the discharge of that role, it would have to be done by primary legislation. Therefore, although those functions that are currently discharged by my noble and learned friend the Lord Chancellor and Secretary of State for Justice are conjoined, it would be possible at any stage to remove those functions that do not fall into the core functions of the Lord Chancellor into another department led by the Secretary of State.

Noble Lords know that over time innumerable changes have been made, in accordance with machinery-of-government procedures, which have moved functions from one department to another—and sometimes back again. But those functions are separate from the core functions that are set down in statute as belonging to the Lord Chancellor, which could not be changed. It is for that reason that the Lord Chancellor takes the oath that was read out so elegantly by the noble Baroness, Lady Anelay. No doubt in due course she will have aspirations of saying it in fact. If her party ever gets back into government, possibly in the year 3000, perhaps that will be the case.

I know that I have reached a milestone birthday this year, but even taking the pills I will not last that long. Under the great leadership of my right honourable friend Mr Cameron, I am sure that I will not have that long to wait. It is not that I aspire to be Lord Chancellor—I would not be learned enough—but I should certainly like to serve the country in some capacity; even from these Benches it is an honour to do so.

I am grateful to the noble Lord, Lord Thomas of Gresford, for pointing out the dangers that are inherent in the transfer of some of the functions—probation and prison services—to the Ministry of Justice. The Minister has said again very properly, as she did earlier today, that changes to the machinery of government are the responsibility of the Prime Minister. I have to say that since the Prime Minister is about to change, we can all hold our breath and hope that Mr Brown might think again about some of the recent changes and perhaps about the progress of this Bill.

The Minister says that the budgets will be published in the ordinary way. The problem is that that is too late for our consideration of the Bill. That is one of the undercurrents causing problems for noble Lords. We do not have a feeling for what costs the Government will allocate to the commissioning processes.

The noble Baroness says that the Lord Chancellor takes an oath, which it is true I read out in part, and therefore she is sanguine and can say. “All will be well; he will protect the independence of the judiciary”. Of course we have to have faith in the fact that any Lord Chancellor would look first to maintaining the independence of the judiciary, but we have to take note of the fact that the current Lord Chief Justice and his judges have concerns about these matters. If they are concerned, so am I. I will read with care the evidence given by the noble and learned Lord the Lord Chief Justice tomorrow. I make no prejudgments tonight as to what action I should take regarding this amendment. I will consider carefully what he says and what the noble Baroness has rightly put forward on behalf of the Government today before deciding whether I should resuscitate this amendment, in spirit but perhaps redrafted, on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume. In doing so, I suggest that the Committee stage begin again not before 8.35 pm.

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

House resumed.