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Offender Management Bill

Volume 692: debated on Tuesday 5 June 2007

House again in Committee.

69: After Clause 6, insert the following new Clause—

“National standards for the management of offenders

(1) The Secretary of State shall continue to publish national standards for the management of offenders.

(2) The national standards may in particular include standards relating to the management of offenders held in custody.

(3) In exercising his powers under section 3(2) the Secretary of State shall have regard to the need to secure, so far as practicable, that the arrangements in force from time to time provide for the national standards to have the same effect in relation to every provider of probation services carrying out the activities to which the standards apply.”

The noble Lord said: This substantial group of amendments deals with the key issue of standards. Let me begin by introducing the amendment tabled in the name of my noble friend Lady Scotland. Amendment No. 69 seeks to add a new clause to the Bill covering national standards for the management of offenders. It has been clear for some time that real concern exists about the effect of our proposals on the standards of probation services. There have been anxieties that the introduction of commissioning and contestability will lead to some providers cutting corners and diluting standards, to reduce costs and gain a competitive edge.

Our ministerial colleagues in the other place and we in your Lordships’ House have consistently emphasised that we want to achieve the opposite effect—that the aim of the proposals is to raise standards rather than lower them—but concerns have remained. That is why we gave a commitment in the other place, and reiterated it at Second Reading in this House, to give statutory effect to those assurances. That is what this amendment seeks to do.

Proposed new subsection (1) requires the Secretary of State to continue to publish national standards for the management of offenders. National standards for the Probation Service were first introduced after the implementation of the Criminal Justice Act 1991. They have been revised twice since, most recently in 2005 in response to the Criminal Justice Act 2003. In their various forms, they have proved a crucial tool in raising performance in the service. The amendment ensures that this will continue.

I ought to note that the noble Baroness, Lady Anelay, has proposed an amendment similar to ours, which makes specific reference to,

“the provision of reports to courts and to the Parole Board”.

I confirm that those activities are covered by the reference to “management of offenders” in the proposed new subsection and that national standards covering those activities will be produced.

Proposed new subsection (2) in the Government’s new clause makes clear that the standards may also include those relating to the management of offenders in custody. That will ensure that standards are able to support properly the development of the end-to-end management of offenders, whereby the Probation Service is involved with an offender from the beginning to the end of his or her sentence, including any period spent in prison. However, publishing standards is not enough on its own—we need to make sure that they are applied—so proposed new subsection (3) links the standards to the Secretary of State’s power to enter into contractual and other arrangements with providers. The Secretary of State is required to have regard to the need to ensure that those arrangements provide for national standards to apply to all probation providers, so far as is practicable. In other words, the standards will apply equally, regardless of whether the provider is a probation trust or from the voluntary, charitable or private sectors.

We want to encourage innovation and creativity in the way that services are delivered and to maximise value for money. But we also want to see a consistent level of minimum standards across the country. Key to that is the development of contracts that fully reflect and enshrine national standards and ensure that only providers who can clearly demonstrate that they can meet the required standards will be commissioned to deliver those services.

When they are enshrined in contracts, national standards will be one of the benchmarks against which performance is assessed by the commissioner. Failure to meet those standards will generally lead to penalties incurred by the provider. A range of sentences will be available, including financial penalties, and termination of the contract will be the ultimate sanction.

Stipulating penalties in the Bill will limit the commissioners’ flexibility to implement other sanctions that may be more appropriate in improving the delivery of probation services. By their nature, those services cover a wide range of offender needs, and prescribing penalties in advance may focus the providers’ efforts on ensuring that they deliver against those specified performance measures while allowing the quality of other important elements of the service to slip. Normal contracting arrangements will allow commissioners to incorporate a flexible package of incentives and sanctions that not only cover the wider probation environment but cater for regional and local complexities, which the use of centralised penalties may make more difficult to implement.

The amendment tabled by the noble Lord, Lord Judd, would add qualifications and training to the areas covered by national standards. We made clear the importance that we attach to training when we debated the previous group of amendments, but I remind noble Lords that we explained that we did not think that excessive top-down prescription was helpful.

The amendment of the noble Lord profoundly misunderstands the purpose of national standards, which are aimed at practitioners and are all about delivery. They set out, for example, the level of contact required with different categories of offender, how quickly an assessment must be made after the release from custody of a prolific and other priority offender, and so on. National standards are not the vehicle for dealing with training requirements.

The addition of our new clause on national standards is a significant improvement to the Bill and puts beyond doubt our commitment to ensuring consistency, across the country and between providers, in the standards to be expected and delivered. I hope that the House will support that approach. I beg to move.

I shall speak to my Amendment No. 82 in this group. I thank the Minister for his exposition of the Government’s amendment that puts national standards into the Bill. It is welcome, although I suspect that many noble Lords will see it only as a first step. I am grateful for the noble Lord’s assurance regarding subsection (2) of my amendment. I had wished to ensure that the standards to be achieved should include the provision of reports to courts and the Parole Board. The Minister assured me that those would be covered and I am grateful to him.

I understand why subsection (3) of the Government’s amendment is not prescriptive on standards across the different providers and uses the term, “so far as practicable”. I realise that that may meet some resistance by noble Lords, but I can understand the legal and practical context in which the Government are working and why they have adopted that terminology. That subsection is a great step forward from the current position whereby the Bill is silent on the importance of training, and because the Government are covering all providers. The more the Government talk about using a similar approach to all providers, the more reassurance they may convey—although we have some way to go.

My Amendment No. 82 ensures that national standards must be met in the provision of reports to courts and the Parole Board. The Government dealt with that. Subsection (3) would require that those who fail to meet proper standards of probation provision should pay a financial penalty. I was very interested to hear what the Minister said. I listened most carefully when he talked about incentives and sanctions being part of the process. I agree with him entirely. One wants to provide incentives in the contract to ensure that people want to bid and to make them feel proud of the work that they are doing and that there is a can-do mentality. One wants voluntary organisations, in particular, to offer their services in the expectation that they will be able to make a real contribution to outcomes in the probation world. Equally, I am certainly aware that if there is to be any kind of contestability with any meaning, there must be sanctions.

When I tabled my amendment, I was contacted by Third Sector magazine, which asked me to comment on why I had done so. I was asked to provide a quick response as there were only 24 hours to go before the magazine was due to be published. At the time, I was working on the Serious Crime Bill—noble Lords will be able to hear the violins. I tried to turn round a story but then the magazine did not reply, so unfortunately the article appeared in Third Sector magazine without the benefit of my contribution. I tried to explain in an e-mail that my views could be read in Hansard, and of course my honourable and right honourable friends in another place had given their views.

I understand that voluntary organisations may fear that penalties—financial or otherwise, such as the curtailment of their activities—might damage their standing. I refer not just to their professional standing among their peers but also their financial standing, and I was certainly told that charities were concerned that their financial position could be endangered.

I was also told that some charitable providers felt that they would become risk-averse and would not be as flexible and willing to enter the arena in the first place. I was concerned about people worrying that they would become risk-averse because I do not see probation providers being risk-friendly. All probation work carries some risk but one weighs that up against the outcome that one is going to achieve and the kind of people one is using. Anyone who hopes to win a contract to provide probation services will not be taking risks at all. They will have gone through a very careful evaluation, and the work that I have done with charities has shown that that is what they do if they are to enter a commercial relationship.

Therefore, I was not concerned that my amendment would be a threat to charities or in any way undermine their flexibility and their ability to respond. However—I have had conversations around the House about this—I believe that charities may have misunderstood the implications of contestability for them, and that is what lies beneath my tabling the amendment. Charities have been enthusiastic about contestability because they have seen the income stream that it will guarantee them. Their views have been jaundiced when trying to get money from the Home Office in the past, or perhaps when their contracts have not been renewed or they have not been paid the full amount. They see this as some kind of security for the future but it is not all going to be like that, and I think that small charities, in particular, may find that they are not quite in the position that they had hoped for.

I have worked in a local part of a national charity. We changed it into a company limited by guarantee and bid very successfully for a series of contracts under what would have been contestability by any other name—not in probation but in a related field. I have seen the success of that operation but it has changed the way that the charity is operated—as it had to. The range and remit of the charity changed, although its core principles did not change, but it had to accept penalties if it entered into the arena.

Perhaps I may make a simple point. I hear what the noble Baroness says on this issue and I understand it from my own experience in the field, but I think that she is describing the development of professionalism within smaller charities. I would argue that, in this instance, that is most welcome and we should encourage it. I understand that penalties can seem scary, but we have to have some form of sanction to ensure that we get the standard of service that I think we all agree we require.

Throughout the Bill, we have heard the noble Baroness, Lady Scotland, say that there is not much between us and this time I can say it—it is true for once. I appreciate that, if there is to be any success in the rollout of contestability, there have to be penalties. I still think that there will be a change in culture among some charities. That may not necessarily all be unwelcome, but it will be a very hard experience. I hope that we end up with charities that are stronger, because they have the most marvellous abilities.

Amendment No. 83, in the names of the noble Lords, Lord Judd and Lord Ramsbotham, and the noble Baroness, Lady Stern, provides a very helpful enlargement of the scope of my amendment. If I were to vote on mine, I would say yes to Amendment No. 83 first. At the beginning, I made it clear that I welcome what the Government are doing as a first step—I suspect that others may wish to press them further—and I certainly support Amendment No. 69 and shall not press mine.

I would like to speak to Amendment No. 83. I thank the noble Baroness for the generous comments she has just made about it. I always find her remarks fascinating, but I found her remarks in speaking to her amendment particularly interesting, informed as they were by direct experience. I agree that this is a very serious undertaking for anyone who enters into a commitment to provide probation services. We cannot overestimate the damage that could be done. That is why the training is so important. They have to be able to understand why people are and have become criminals and how they see life. Apart from anything else, it is a psychologically demanding task. It is important to remind people just what a serious undertaking they are entering into. I am with her on that.

Amendment No. 83 provides the means of fulfilling subsection (1) of Amendment No. 82. I do not quite see the point of making provision for standards to be achieved unless one says how that is to be done, including the necessary training. That is why I believe that that needs to be in the Bill somewhere. I hope my noble friends on the Front Bench will forgive me hammering away at this point, but I believe that is essential and will give credibility to the whole thing. I say to my noble friend who has spoken to the government amendment that I respect his commitment and understanding, but I believe that this point has to be in the Bill. This is another opportunity to make the point and, therefore, I make it. I shall move Amendment No. 83.

I am extremely glad that the noble Baroness, Lady Anelay, has raised a very important point about charities and their accepting contracts. My noble friend Lord Listowel mentioned earlier the presentation to the Cross-Benchers by the chairman of the Charity Commission in which she introduced her report Stand and deliver. In that she pointed out the dangers of charities changing their missions to respond to direction from funders. If they did, they risked their charitable status and their trustees would be liable for the changes. I looked in vain at the regulatory impact assessment to see whether there was any mention of the likelihood of an impact on the voluntary sector for accepting contracts under terms like this and what it might do for them and I found none. It is an important point which has to be thought through with great care before one launches into the wonderful idea that one can contract the voluntary sector to do all kinds of things which are desirable in a partnership sense, but one has to think of the integrity of the charities that are employed.

I briefly go again into the lion’s den, to support these amendments which follow on from our previous discussion. The regulation of standards is yet another area where the Bill is curiously silent, particularly on the provision of reports, the monitoring of content, the supervision of offenders and financial penalties for those who fail to hit government targets, as we have just heard from the noble Baroness, Lady Anelay. The Secretary of State must have a duty to set standards as well as revise them. Without the amendment, there will be no specific body to set standards for probation practice. Amazingly, I have discovered that the National Probation Directorate was established just six years ago and is currently being abolished by the Home Office. Perhaps we could hear more about that from the Minister.

Before my noble friend replies, I take up a point of the noble Lord, Lord Ramsbotham. The noble Lord has put his finger on an important consideration of the Opposition’s amendment. I have just said that one cannot take too seriously the commitment into which any agency enters in undertaking to provide a service in this sphere because of the damage that could be done without the right kind of understanding and professionalism, however enthusiastic and well intentioned it is—and perhaps all the worse because of that. In that sense, I commend the Opposition’s amendment.

However—and I am glad that the noble Lord, Lord Ramsbotham, prompted me into making this observation—in saying that, I do not want to be taken as one of those who has joined a dangerous trend towards a subcontracting culture in the voluntary sector. There must be hard talking between any agency and the Government before the contract is sealed. There must be an understanding that a good agency with real experience and something to offer will bring something to that situation which must be taken seriously. There must be hard talking. What comes out of it must be a partnership, not just between the contractor or subcontractor and the Government, but one forged through honest discussion. Once it is entered into, it becomes a serious commitment to deliver. I do not believe that that point can be over-emphasised.

I thank the Government for bringing forward this amendment to set national standards for the management of offenders. It is crucial to ensure that there is a proper, professional framework for those working on the front line.

I was somewhat disappointed when the Minister said that he did not wish to take a top-down approach or talk about training in these minimum standards but preferred to set broad parameters, although I understand the motivation. In children’s homes, for instance, there is a minimum standard whereby there is an obligation to provide someone on the front line with one or two hours of supervision with a senior practitioner once a month. When they first start, there is obligation to give them even more. That is where this could make such a difference.

We have seen that supervision decline in social work. In children’s homes, that is the worst case scenario: where things have gone to pot and there has been no professional framework. If one looks to the Continent, one can see a huge disparity between those working with the most vulnerable children and young people in this country and abroad. There is a danger that, in seeking to implement the Bill—even with all the good intentions behind it—standards could go down in the transition. Having national minimum standards for quality and quantity of supervision clearly set out, for instance, would be very helpful indeed if we could go that far. That might be along the lines of the amendment of the noble Lord, Lord Judd.

Finally, we talked about contracting to private and voluntary suppliers, and not being prejudiced about doing so. We should absolutely not be prejudiced about it. However, the most important supports for people on the front line are supervision and the opportunity to stand aside and reflect on what they are doing and their relationships with their clients, but that is almost invisible. I cannot help but observe in other areas where services working with vulnerable people are contracted out, it is unfortunate that those supports are often cut when costs are being considered because their value is not apparent, especially not to companies that do not necessarily know about the business. There are good private companies, which are often run by people who have worked in the business, know it very well and relish the independence, freedom and creativity of running their own business, but venture capital or large business bases often do not understand what is the key to the business and they cut back on support and training for staff, and staff turnover goes up and the ability to form relationships, which is fundamental to success in this area, is in question. I highlight that concern, but I welcome the fact that some national standards are being proposed.

I rather approve of all the amendments in this group for different reasons. They bring together the framework in which standards can be maintained. I was particularly struck by the fact that the Minister’s amendment has the slightly weasel words “as far as practicable”, which give the Government a let-out, whereas the amendment tabled in the name of the noble Baroness, Lady Anelay of St Johns, relates to penalties.

Returning to the contribution of the voluntary sector, which we all agree is so important in this, and the danger of it getting too much into the national framework of what a Government do, I am reminded of the noble Lord, Lord Dahrendorf, who was on the advisory committee of NCVO on which I sit, who constantly warned against any reduction in the innovative and constant regeneration of ideas to meet modern problems that the voluntary sector is there for.

It is likely that there will be contractual arrangements with voluntary organisations, and I am sure that that is absolutely right, and, if the amendment tabled by the noble Baroness, Lady Anelay, is accepted in principle, there may well be penalties, but what about the other way? What if the Government do not live up to their contribution to get the contract entered into delivered on time? Have the Government thought about that? I picked up an idea from an earlier comment that they might well be prepared to renegotiate the terms and conditions of the service. Should there not be a little bit of give and take both ways? Should penalties not operate in both directions? I will be interested to hear what the Minister has to say.

I support my noble friend’s final comment. One of the concerns I have had in this short debate about these amendments is the rather one-way track. Having been part of a service delivery that was assessed as one of the best in the country in the voluntary sector for treating, in conjunction with probation, some of the most dangerous sex offenders, I sometimes think we have things a little skewed when we think that the only good services come from the statutory services. I say that as someone who worked in local government for years, and who believes fervently in local government and statutory and probation services.

We need a balance. I am unhappy about penalties for very much the reason that the noble Baroness, Lady Howe, said; I do not know how you get it two ways on. A number of voluntary organisations are waiting for large amounts of money from the Home Office—and I criticise the Government for that. It is really penalty enough to lose your contract; that should be the penalty. Contracts should be given for long enough periods but with review dates. Those review dates should mean that the contract can be withdrawn if the provisions are not being met.

I, too, am interested in what happens if it is not happening the other way on—I love the answer to that question. However, I am not happy with that form of amendment because of the difficulties it will create within the relationship as it is one-way.

I support what my noble friend Lord Listowel was saying a few moments ago. It strikes me that government Amendment No. 69 says nothing about supervision and support of front-line workers, whereas if you take Amendments Nos. 82 and 83 together, that would fall within their terms of reference.

I, too, follow what my noble friend Lord Listowel said. I support the idea of national standards but I worry very much about their content. It would be fair to say that the current national standards are very narrow in their conception. They concentrate on processes—the number of days that must elapse before something happens and the time that has to be devoted to something. Does the Minister have in mind standards that would really constitute a professional framework, and which would cover matters such as personalisation and individualisation of the service offered, the amount of contact with the home and the family, home visits that are made, complaints procedures for the people being supervised, and whether the requirements of the Human Rights Act will apply?

Is that how the Government see national standards or will we just have a rehash of current ones which are process-driven and do not really tell you anything about the quality of the experience received by the person who gets the service?

This has been a very interesting debate. I have listened carefully to all the contributions made. I am trying to draw the threads together. I thought the points offered by noble Lords sought to find a golden thread but were at the same time disparate. I was also encouraged by what noble Lords said. We are all searching for something of a holy grail about how the contract and commissioning process should work and to find a way in which we can ensure that things improve and that we get that constant process of improvement. I am greatly encouraged by that.

It is particularly nice to hear my noble friend Lord Judd offering some words of understanding and, I think, praise for the approach being adopted. The noble Lord appreciates with his vast experience, particularly in the voluntary sector, the way in which the voluntary sector and non-governmental organisations can bring innovation and fresh approaches and ways of working.

Having heard all of that, I then listened very carefully to the noble Baroness, Lady Stern. She said that she was very much in favour of national standards. I made it clear in my earlier commentary that we were in favour of minimum standards. But then she went on to say that while she was a supporter of those she was worried that the Government would apply those standards too narrowly and that we would regress in some way.

I invite the Committee to have a more encouraging view of what we are trying to deliver here. We all understand that there is the same set of problems, and we are all after the same set of objectives—to improve the way in which we care for, treat and approach the management of offenders. There is an understandable fear that somehow we will not be rigorous enough in applying terms of contracts; but that, on the other hand, we may get the disbenefits of flexibility. That is why I am more than happy with the way in which we have argued through our amendments.

To try to pick up some of the points to which the noble Baroness, Lady Anelay, referred on her amendment, the first part of it requires standards to be made by regulation. We think that that is inappropriate. It is not consistent with current practice. I recollect that practice is very much informed by standards that the Secretary of State has set out, and that has worked well in the past. What we have tried to achieve is based on wide consultation within and across the service and we think that we have always approached this openly and transparently. We have benefited from that. In essence, we are building on current good practice.

The noble Baroness also made the case for financial penalties—over and above other penalties, it seemed to me. I would argue that our approach is more graduated. I argued earlier that financial penalties are appropriate, and I am very familiar with that culture; I had to implement CCT, and I did not always like it. However, although we could ultimately end the contract, before we got to that point we could exact a financial penalty. We could also seek to negotiate to vary the terms of the contract if that was sensible in the light of experience because the service was not as it had been described in the original documentation.

In his amendment, my noble friend Lord Judd seeks to qualify the areas covered by the national service agreement. That takes us back to our previous debate. Here, I argue that my noble friend misunderstands the purpose of standards, which are primarily about delivery. Of course he is right that the quality and experience of those trained to carry out the contract, their work, their background knowledge and so on is very important, but we cannot begin to stipulate that in legislation. That is where we need to strike a balance and I argue that we have the balance about right. This is not a perfect science; it is an iterative process; it is something that we have to turn to at all times. However, we have adopted an approach that means that we set minimum standards, set in essence by the Secretary of State; that we set them at the highest possible level; that they are understood across the service; and that we build on experience based on current provision.

The noble Baroness, Lady Howe, asked: could the provider get standards changed? Would there be room for negotiation? Of course it would be open to any provider to suggest to NOMS at headquarters level that a standard or standards be changed if it thinks that that would help to improve performance. That goes back to the issue to which I referred earlier. In the operation of a contract, in the light of experience, it is important and necessary to reflect on that and, perhaps, to vary the way in which the standards of service are to be delivered. Ultimately, that will be for the Secretary of State to determine based on the advice of those who are closest to the service and understand exactly how the service should operate.

The noble Baroness, Lady Linklater, asked about the operation of the old National Probation Directorate. In essence, the headquarter functions that the National Probation Directorate used to carry out are now carried out at the centre of NOMS in the Ministry of Justice. They have not gone away—they are still there and are still very important—and the director of probation remains the line manager for the 42 chiefs of the Probation Service.

I think that I have answered the various points that were made in this debate. It was a very valuable debate, and it will inform the way in which we operate this policy. However, we should ensure that we retain the necessary flexibility. Because of that, it would not be right to put the standards into the Bill in the way in which noble Lords have argued. Indeed, it would be extremely unusual if we were to do so, particularly in the light of my experience of operating contracts at local government level. The noble Baroness will be well aware of those issues from her own political experience in the past. I understand some of the concerns that have been expressed about the way in which the service will operate through the commissioning and contract process, but, with the knowledge and experience that we have gained in this field and in other parts of the criminal justice system, which have benefited from this approach, we can have considerable confidence in the way in which this policy rolls out.

On Question, amendment agreed to.

70: After Clause 6, insert the following new Clause—

“Annual plans etc

(1) The Secretary of State shall at least once in every year consult the Welsh Ministers, and such other persons as he thinks fit, about the provision that should be made for the purposes mentioned in section 2(1) for the following year.

(2) The Secretary of State shall, before the end of each year, publish an annual plan for the following year which sets out the way in which the Secretary of State proposes to—

(a) discharge his functions under section 2(1) and (2) during that year; and(b) carry out any arrangements which he expects to be in force under section 3(4) for that year.(3) The Secretary of State shall have regard to the annual plan published under subsection (2) for any year—

(a) in discharging his functions under section 2(1) and (2) during that year; and(b) in making or carrying out arrangements under section 3(4) for that year.(4) Arrangements made by the Secretary of State under section 3(2) with a probation trust shall require the trust to publish an annual plan for each year in which it expects to carry out any specified activities.

(5) Arrangements made by the Secretary of State under section 3(2) with a person other than a probation trust shall, if the Secretary of State thinks fit, require that person to publish an annual plan for each year in which it expects to carry out any specified activities.

(6) In subsections (4) and (5)—

“annual plan” means a plan setting out the way in which the probation trust or other person (as the case may be) proposes to carry out any specified activities during the year to which the plan relates;

“specified activities”, in relation to a probation trust or other person with whom arrangements under section 3(2) are made, means activities of a description specified in those arrangements for the purposes of subsection (4) or (5) above.

(7) In this section “year” means a period of 12 months ending with 31st March.”

[Amendments No. 71 to 81, as amendments to Amendment No. 70, not moved.]

On Question, amendment agreed to.

[Amendments Nos. 82 to 84 not moved.]

Clause 7 [Officers of providers of probation services]:

[Amendments Nos. 85 to 87 not moved.]

Clause 7 agreed to.

Clause 8 agreed to.

Schedule 2 agreed to.

Clause 9 [The inspectorate]:

[Amendment No. 88 not moved.]

[Amendment No. 89 had been withdrawn from the Marshalled List.]

Clause 9 agreed to.

Clause 10 [Approved premises]:

90: Clause 10, page 6, line 25, leave out “approved premises” and insert “probation and bail hostels”

The noble Baroness said: I hope that I can be relatively brief. Amendment No. 90 is intended to probe the consequences of a statement made by the Minister Mr Sutcliffe in the Committee that considered the Bill in another place on 18 January 2007. He was responding to the same amendment, which was moved by my honourable friend Mr Edward Garnier. My honourable friend was concerned to press the Government to give assurances about the standard and training of those who would run approved premises— the old probation and bail hostels—in the future. The names have changed, but we want the same standards.

Clause 10 gives the Secretary of State very wide powers to approve accommodation and set regulations on their management. When the Minister responded, he stated:

“There are issues about accommodation in addition to approved premises which I am sure we will come back to when we consider the outcome of the child sex offenders review that the Government are currently undertaking. There are a great many issues around resettlement”.—[Official Report, Commons Standing Committee A, 19/1/07; col. 157.]

Indeed there are. The Bill has now progressed some five months, although perhaps the Minister might feel that it has not progressed quite far enough, given that we are only at Clause 10 after three days; but we are getting there, we really are. I say this with the Chief Whip in front of me. We will get there one day, just not this day.

What further work have the Government done on this issue and what stage has the review of child sex offenders reached? What assurances can the Minister give regarding the standards that will have to be met in resettling sex offenders after the passage of the Bill. I beg to move.

I thank the noble Baroness for putting her amendment in that way because I was a little perplexed as to why it was there, not least because, as she rightly says, there was a very full debate in the other place on those matters. The review to which the noble Baroness refers is imminent but I cannot say whether it will be completed before Report stage. I hope that it will but I cannot give a definite date. However, we absolutely understand the importance of taking appropriate steps to make sure that where sex offenders are placed, they are placed safely and securely, and that the sanctions and conditions which apply are sufficiently robust to guarantee public safety as far as is reasonably practicable. Those issues will continue. All our concerns to ensure that the approved premises are working appropriately and have the appropriate safeguards continue to exist.

As I am on my feet, I say to the noble Baroness, Lady Howarth, that I compliment again the work which non-governmental organisations such as the Lucy Faithfull Foundation have done in this regard. In the past, they have demonstrated real excellence. As for the 104 approved premises—some are in the voluntary and private sectors but the majority are in the public sector—what we have said remains true and standards will be applicable to all providers. There will be no differentiation between public, private and voluntary.

I am grateful to the Minister. I am sure that she will understand our concern that we ought to return to such an important matter. I appreciate that the review is not yet ready for us to consider. I also appreciate that the Government are pressing ahead quite rapidly with the Bill and that it may leave this House before the Summer Recess. Obviously, we will keep our eyes open to see whether it is possible to return to it within the rules of debate on Report, although I suspect that it would not be so at Third Reading. On this occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Disclosure for offender management purposes]:

[Amendment No. 91 not moved.]

92: Clause 11, page 7, line 21, after first “to” insert “—


The noble Baroness said: Amendments Nos. 92 and 93 are probing amendments to ask the Minister to clarify a point made in paragraph 71 of the Explanatory Notes. On this occasion the Minister will not be able to say, “Well, this was fully debated in another place”, because those debates did not touch on this. Clause 11 is intended to clarify the power of certain bodies to share data for any purpose that is listed in subsection (4). The list is very wide. It includes,

“the probation purposes … the performance of functions relating to prisons or prisoners … and any other purpose connected with the management of offenders (including the development … of policies relating to matters connected with the management of offenders)”.

Subsection (3) provides the power to share data,

“but only if the disclosure is necessary or expedient for … the purposes mentioned in subsection (4)”.

Paragraph 71 of the Explanatory Notes states:

“That enables the bodies listed in subsection (1) to share data with one another. It also enables disclosure between those bodies and the bodies listed in subsection (2). The clause has no application to disclosures between bodies listed in subsection (2)”.

But it goes on to say that,

“there may be powers elsewhere that cover these”.

I found the words “may be” a very strange indication. Are there or are there not such powers elsewhere? If so, where are they and what impact will they have on the operation of the powers in the Bill? I beg to move.

Clause 11 seeks to put beyond doubt the different organisations, public, private or third sector, that can share information with each other to ensure effective offender management. It clearly sets out the reciprocal rights of data-sharing between organisations and states that information can be shared only for certain defined purposes—I am sure the noble Baroness understands that—namely, probation, the performance of functions relating to prisons or prisoners, and the management of offenders, which also includes research, development and assessment of policies connected with the management of offenders. In practical terms, this means that one prison operator can inform another operator of security information that might be relevant to handling a prisoner when he is transferred from one company’s jail to another, or that a provider of probation services will be able to share an assessment of an offender’s risk factors with a local authority that will provide him with housing. Not only will it enable the system of managing offenders to function more effectively, it will also provide better research data. Additionally, it will enable us to evaluate and more effectively tailor rehabilitation programmes for offenders to reduce reoffending.

The amendment would provide that another item set out in the subsequent amendment can be listed in this clause. The insertion proposes that a listed party should be able to share information with another listed party. My understanding is that the proposed disclosure of information using this clause will have to be fully compliant with the Data Protection Act 1998, Article 8 of the European Convention on Human Rights and the common law of confidence in the usual way. We argue that the amendment is unnecessary, and that to allow those bodies with a lesser interest in offender management to share information with one another under this clause would risk creating the potential for confusion and, I would argue very firmly, the inadvertent misuse of the power. That is precisely what the clause itself is designed to avoid. Listed bodies are unlikely to need to share offender information with one another on a routine basis, and if information is required, it is much more appropriate that they speak directly with the source of the information from the agreed list.

Exchanges between the two parties as suggested in the subsequent amendment would not be authorised by this clause, and giving them the power to do so would raise real concerns that perhaps the noble Baroness might share. The purpose of the clause is to make clear that nothing in any way removes or modifies the legal safeguards to which any proposal to share data is automatically subject. I am sure that the amendment is probing in nature, but those are the reasons why we could not accept this approach and why Clause 11 is included in the Bill.

It is still as clear as mud, but the Minister was trying to be helpful. He gave an answer as to why my amendment is not necessary, and I understand that he has done so in order to put it on the record. It certainly is a probing amendment just to tease out what the Explanatory Notes actually mean. I shall have a look at Hansard to see if the response means more to me tomorrow than it does tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

[Amendment No. 94 had been withdrawn from the Marshalled List.]

95: Clause 11, page 8, line 2, leave out “(whenever passed or made)” and insert “passed or made before the end of the Session in which this Act is passed”

The noble Baroness said: Clause 11(7) provides the Secretary of State with the power to amend by secondary legislation any legislative provision which prevents or inhibits disclosure that the clause seeks to authorise. As originally drafted, that power applies to existing and future legislation.

In its recent report to Parliament on the Bill, the Delegated Powers and Regulatory Reform Committee recommended that the clause be amended so that it no longer covered future legislation. After considering the points made by that committee, we take the view that we should amend the clause to remove the power to amend future legislation. We accept that such a power is unusual and that the nature of the other powers conferred by this clause does not clearly justify a wide amending power.

However, in this amendment we wish to retain the power to amend legislation passed in previous parliamentary Sessions and in the same Session in which this Bill receives Royal Assent. Such a power is not unusual. Indeed, the Delegated Powers and Regulatory Reform Committee did not recommend that we remove this element of the amending power. If the amendment is accepted, the Secretary of State will have available an appropriate flexible solution if, in the future, we identify other legislation that prevents disclosure for no obvious reason other than it was not drafted in the knowledge that the Clause 11 power would subsequently be enacted.

We wish to re-emphasise the safeguards in the clause on how such a power to amend might be used. Any changes we seek to make to existing legislation so that it does not prevent the proper use of the Clause 11 power would need to be made by way of statutory instrument, subject to the affirmative resolution procedure. That will allow, therefore, an opportunity to debate all relevant issues in both Houses, and for a vote if it is thought appropriate.

We will also, of course, consult other government departments that have ownership of the legislation we might seek to amend. We recognise the real concerns that might be raised by the kind of information-sharing envisaged by the clause and wish to make clear, once again, that nothing in the clause removes or modifies the legal safeguards to which any proposal to share data is automatically subject. Consequently, any proposed disclosure of information using this power will have to be fully compliant with all appropriate legislation, including the Data Protection Act and the Human Rights Act.

I hope that I have fully explained why our amendments offer a sensible way forward. I beg to move.

I am grateful to the Minister for tabling the amendment. She introduced it by saying that the power the Government had been seeking was unusual and that they have ended up with a power that is not unusual. To say that the power originally sought was unusual is certainly an understatement. These, of course, are Henry VIII powers and, as the Delegated Powers and Regulatory Reform Committee said, it looks especially carefully at powers which enable the amendment of future Acts, as the full scope of the power cannot be ascertained when it is given.

We also look very cautiously and carefully at such matters and we were surprised that the Government sought such a power in this case. The power as originally tabled was sufficiently broad to enable the Data Protection Act 1998 to be overridden and, of course, to amend future Acts. As the Delegated Powers and Regulatory Reform Committee pointed out, the power to amend future Acts requires sufficient justification, which it found had not been provided on this occasion.

I am glad that the Government thought fit to respond properly to the recommendations of the Delegated Powers and Regulatory Reform Committee, but it shows that both that august committee and the House need to keep an eagle eye on the Government to make sure that they do not try the same thing again.

I add only that what happened with the Bill was extraordinary, and it is entirely appropriate that the Government should respond in that way to the Delegated Powers and Regulatory Reform Committee’s report. We therefore welcome the amendment, and hope that the Government will continue to operate in such a flexible way, recognising that when reasonable criticisms are made they should make adjustments.

I hope that, by virtue of all the amendments we have accepted, that is absolutely clear.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

[Amendment No. 96 not moved.]

Clause 12 [Power to repeal section 4]:

97: Clause 12, page 8, line 29, leave out “4” and insert “4(2)(a)”

The noble Lord said: We have a number of amendments relating to Clause 12. In addition to the two amendments I have tabled with the noble Lord, Lord Judd, which are largely textual, we have given notice of our intention to oppose Clause 12. Then there is Amendment No. 99, in the name of the noble Baroness, Lady Anelay, which contains a new clause for new procedures. I am in some difficulty over the order of these. We have spent considerable time today debating Clause 4 and all its problems, and the need to have clearly stated what the real probation issues are that should stay firmly in the hands of the public sector. We have been through all that, and we have reached considerable consensus about which items are likely to be put out to tender after three years, which might be tendered in the future and which might be tendered immediately.

I hope that, in the spirit of concession that we have just heard over the previous clause, the Minister will take away what has been said today on the whole issue of Clause 4, which we could then perhaps debate in more detail on Report—in which case I suggest that Amendments Nos. 97 and 98 should be taken in the context of Clause 4 as a whole. Therefore, although we have it down that the Secretary of State may repeal, that also ought to be considered in great detail when we discuss the issue of Clause 4 itself. That is a somewhat draconian measure, which is why I suggested that the Bill should not provide that the Secretary of State should be able, by order, to eliminate or change something that has had the full and undivided attention of this Committee for several minutes, almost hours, this afternoon. I stand by my recommendation, but I suspect it is too late to start debating the very important amendment in the name of the noble Baroness, Lady Anelay, and am fully conscious that we should reserve the rest of the Clause 12 discussion until we resume next Monday. I beg to move.

I made it clear at Second Reading, as reported at col. 128 of Hansard on 17 April, that I regard the limitation in Clause 4 to be fundamental to the Bill. I chose my words very carefully. It is a matter of policy, as the Delegated Powers and Regulatory Reform Committee observed at paragraph 28 of its report. The committee was right to say that, and we find it strange that the Government have also inserted the means for removing the safeguard in that clause by statutory instrument in Clause 12.

I gave a commitment at Second Reading that we wished to look at Clauses 4 and 12 very carefully in Committee. The noble Lord, Lord Ramsbotham, is right that we should be looking at Clause 12 through the gateway given to us when we talked about Clause 4. The difficulty is that we have not yet heard the arguments of the noble Lord, Lord Judd, who wishes to remove Clause 12 altogether. We may yet reach Clause 12 stand part tonight, in which case we may have the opportunity to hear from him, although it may not be until next Monday.

Any progress towards contestability should proceed cautiously. When the Government made the concession on Clause 4 at the 11th hour in another place—on Report—the Minister, Mr Sutcliffe, said that it was brought forward in that spirit. He said (at col. 960 of the Official Report of 28 February 2007) that he accepted that the House still had concerns about the pace and scale of change, and about what might happen in the future. That is an understatement if ever I heard one.

The reality was clear: the amendment was brought forward only because the Government Whips thought that they would lose the Bill at Third Reading if they did not and it was the only way of heading off a significant rebellion from their own ranks at the time. Clause 12 has the air of something rushed into a Bill to enable the Government to get their legislation via the secondary route that they would not have achieved by the primary route.

My honourable friend Mr Edward Garnier made it clear that we would not argue about what should be subject to contestability and at what stage we were happy for it all to be open to contestability under the proper conditions. Those arguments lie at the core of objections to the removal of Clause 4 by the statutory instrument powers in Clause 12.

The difficulty today is that so far we have not heard from the Government their justification for Clause 12. This is their opportunity to give that justification. The one given in another place smacked of a Government throwing a provision into the Bill to get out of a hole. There has to be a better justification than that for the statutory instrument route in Clause 12 and I hope that the Government will take this opportunity to give it. It is extremely opportune that we have reached this amendment at this stage; it means that I will have the opportunity to reflect between now and next Monday on the appropriateness of my Amendment No. 99, which would take a significantly different route in trying to square the circle. It tries to find a way out of the impasse between those who do not want Clause 12 at all and those who do.

It is important that the Minister gives us the justification for using the route the Government have here for removing something as significant as Clause 4 from primary legislation. I agree with the Delegated Powers and Regulatory Reform Committee that it is fundamental to the Bill.

We on these Benches support what has been said; at this late hour, I will not add more to that beyond saying that this is a very important issue for the Bill. We wait with interest to hear how the Government will explain it. I am happy that we will be able to return to it on Monday as well as on Report.

So much of the ground that I wanted to go over on clause stand part has been covered that it seems appropriate to say at this juncture, as part of this general debate, that I had reached the same conclusions and reservations as have already been very well expressed but came to the conclusion that the matter was so central and important that the clause ought to be removed altogether rather than tinkering with it. That is why I wanted to oppose the clause standing part. I give notice of that and then when we come to it I can perhaps deal with it formally.

Clause 12 confers a power on the Secretary of State to repeal Clause 4, either partially or in its entirety, by means of an order. The order-making power under Clause 12 will be used if—and I emphasise if—at a future date the Government decide that it is the appropriate time to open up all or part of this area of work to non-public sector providers. An order under this power will be subject to the affirmative procedure by virtue of Clause 33(3)(b) to ensure that such a decision is subject to the appropriate parliamentary scrutiny.

In practice, this means that the Secretary of State will not be able to contract with providers from outside the public sector without further votes, both in this place and in the other. As I have said, we would bring forward such a proposition only if we were fully satisfied that appropriate safeguards were in place, and we would have to convince both Houses that this was the case.

I hope that in the explanations we have had throughout today and earlier in Committee we have all recognised that these proposals represent a significant change in the way that probation services are delivered. By these proposals, I mean the ones set out in this Bill. While we are eager to reap the benefits that the changes will bring, public protection remains our number one priority. Nothing must interfere with the day-to-day management of offenders. We intend therefore, as I have said on a number of occasions already, to proceed cautiously and carefully. The new arrangements will be introduced in a phased and measured way to achieve that.

Part of the process of getting this right is to ensure that we listen carefully to all those involved in implementing the proposals. One of the most consistent concerns expressed has been in regard to the work that probation does in relation to courts, especially in preparing reports. That has been echoed throughout our debates but it was strongly there in debates in the other place too. Therefore it is imperative that we retain the confidence of the court in the report writer. The courts rely, as a number of noble Lords have said in earlier debates, on the expertise that probation staff can bring to bear in assessing the risk posed by the offender, the circumstances of the offence and the appropriate disposals. This bond of trust is an integral part of ensuring that the offender receives the most appropriate sentence. We fully sympathise with these concerns and we have listened.

I hope that I have explained as clearly as I can that we will not seek to open up the core offender management work to competition until at least 2010. However, we recognise that there are particular issues around the work that probation does in relation to courts. While we do not rule out for all time the possibility of some of this work being done in the voluntary, charitable or private sectors, we recognise that those in the public sector are currently the experts and it will take some time before providers in other sectors are in a position to deliver this service to the standard that we require. So we agree that it would not be appropriate to open up this part of the work to other providers until such time as we can be sure that the necessary safeguards are in place.

Perhaps if I just finish this part it may answer the question that the noble Lord anticipates.

Clause 4 and Clause 12 were added to the Bill at Report in the other place following a lengthy debate to meet the particular concerns expressed there. That was not because that was not our intent but because we were trying to explain that that was how this was going to work in an incremental way. It was clear that because this was the process that we had alighted on anyway, it would greatly assist to reassure other colleagues around the House that this was actually going to happen in the way that we all intended. It was for that reason that it did not come, as the noble Baroness suggests, almost at the last minute but as confirmation and consolidation. Perhaps the noble Baroness should look back at what my honourable friend Gerry Sutcliffe and my right honourable friend the Home Secretary said. To put it colloquially, the response was, “Prove it. Put it in the Bill. If you think that it will take this length of time and you are going to do it in a graduated, considered way, what safeguard can you demonstrate that this is in fact your intent”? It was with that in mind that these provisions were introduced.

I merely stress that the writing of court reports takes us close to an issue to which we shall have to return on a later amendment; namely, where the boundaries between the public and the private should fall in our mixed economy, and the question of how far some functions need to remain public functions because they are concerned with the choice between liberty and detention—the sort of punishment which is engaged. I just mark that this takes us very close to that philosophical but also extremely important legal question.

I hear what the noble Lord says about that but I ask him to reflect that we are already undertaking that sort of work in partnership in a mixed economy. The close alignment between the work done now by the voluntary sector and the public sector in particular, is being done in a conjoined, partnership way. I know that the noble Lord is not suggesting that we take a step backwards. We have to accept the reality that bodies in other sectors have developed the level of expertise which enables them and entitles them to do this work now. We are hugely grateful to those people for doing that work with us and for us.

Clause 4(1) provides that the Secretary of State may make contractual or other arrangements for “restricted probation provision” only with a probation trust or other public body. Clause 4(2) defines “restricted probation provision” as the giving of assistance to courts in determining the appropriate sentence to pass, or making any other decision, in respect of a person charged with or convicted of an offence.

The provision is therefore cast quite widely. As one would expect, it covers advice on sentencing, in the form of pre-sentence reports, but it also covers the provision of general advice, bail information and advice on enforcement issues through the prosecution of breaches of community orders. That is quite wide.

Clause 12 provides for this restriction to be lifted by means of an order subject to affirmative resolution. Clause 12(1) provides a power to repeal this clause in its entirety. Clause 12(2) clarifies that the order repealing this clause can specify that it does so only in relation to specific aspects of court work. As this situation develops and there is a growth, which we expect, in expertise in other fields which is appropriate and safe, it gives an opportunity for the Government of the day to come back to Parliament and say, “On the following basis we now believe that it is appropriate for this limitation to be removed in relation to all, part or any of the matter”. That gives us flexibility and an opportunity which we think is very valuable because, if both Houses thought that it was appropriate, it would allow, through the affirmative resolution procedure, for there to be a gradual lifting of the provision if that was deemed to be the most appropriate development in the circumstances that prevailed.

Amendments Nos. 97 and 98, tabled by the noble Lord, Lord Ramsbotham, would restrict that power. They would mean that the power to repeal would apply only to Clause 4(2)(a) rather than to the whole of Clause 4. Clause 4(2)(a) forms part of the definition of “restricted probation provision” in Clause 4. It makes clear that “restricted probation provision” must be provision which is made for a purpose in Clause 2(1)(a) or (b). Clause 4(2)(b) clarifies that this provision must also relate to the giving of assistance to courts. The noble Lord’s amendments would restrict all the work that probation does in relation to courts to the public sector for all time.

That is not a sensible way to proceed. It is right to leave open the possibility of some or all aspects of court work being contracted outside the public sector in due course, as other providers develop their expertise and the new arrangements bed in. That may be appropriate but it is absolutely not on the agenda at the moment, and the current arrangements would be changed only if the Government were able to persuade both Houses of Parliament that it was the right thing to do. That strikes a sensible balance. It gives a cast-iron guarantee, to those inside this House and outside it, that we will take a responsible and measured approach to implementing the changes.

I know that many in the voluntary and private sector believe that we are being timorous, and that we should be more bold and go more quickly into the issue. We have listened to that but, where we are dealing with such a sensitive issue and have to build confidence and make sure that people feel comfortable about the change, this is the most appropriate and proportionate way forward. It gives us a balance. We get the safety and security that we need for the moment, allow the market to develop, build the relationships and partnerships, have the standards, deliver in a way that makes sense to people, and then think that—if we end up being where I certainly hope we will be—we will have built a consensus to enable us to move forward. Members of the Committee need to be very conscious that the affirmative resolution procedure is a powerful opportunity in a situation such as this where we allow a part-evolution, because it allows both Houses to say yes—or no—to this development and speed in a way that makes a great deal of sense.

For that reason, I hope that my noble friend will feel content not to oppose the stand part Question in due course; that the noble Lord, Lord Ramsbotham, will not pursue the matter tonight, and that he may consider not doing so on Report or Third Reading; and that I might persuade the noble Baroness, Lady Anelay, to think really carefully about whether she needs to exercise herself unduly on Monday.

I always enjoy exercise in response to the noble Baroness. I hope that the noble Lord, Lord Ramsbotham, will excuse me if I make a couple of points.

The noble Baroness had to address herself to two issues, both policy and process. My questions were predominantly about process—whether this was the right constitutional way to go about removing a clause that is fundamental to the Bill. I do not feel that she has yet assured me on that point. She referred to the fact that the Government putting the clause into the Bill was very much part of how they were bringing their planned policy forward, and that it was in response to her right honourable and honourable friends in another place saying, “We don’t believe you, our Government—prove it”. What a thing to have your own colleagues say that. The Government put Clause 12 in as their get-out to provide flexibility, as she said. That was not overwhelmingly popular with her honourable friends in another place, as she will know, but I suspect that it was seen as better than nothing.

We must consider whether or not the affirmative procedure is appropriate. That will happen when we consider my Amendment No. 99. I am conscious not only of the time, as the Minister looks at the clock, but of the fact that my Chief Whip is sitting behind me. If I were to start voting against every Home Office affirmative order that I thought was plain wrong, I do not think that I would be long for this life. I hear what the Minister says and I know that she has done all she can to argue the Government’s case. We remain adrift.

Next week, if the noble Lord, Lord Judd, is persuaded not to oppose the Question that Clause 12 shall stand part of the Bill, when we reach my Amendment No. 99, I would be grateful if the Minister could show me any recent Home Office legislation in which the Government have sought to remove by order a clause that is fundamental to a Bill. We shall have to see whether that fits neatly with what they are seeking to do in this Bill. I could not research that, given my resources, but, no doubt, the Minister will have the facts at her fingertips.

I was interested that the Minister talked a lot today about proceeding with considered caution. Yet she closed using the motto of my regiment, “Swift and bold”, in moving forward. I have listened with care to what the noble Baroness, Lady Anelay, said and I am sure that she is absolutely right that we should consider precisely what has been said in this interesting debate. I am glad that the Minister has described all that she has been trying to achieve. We have a great deal to consider on Clause 4 and on Clause 12 when we return on Monday. In that spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 98 not moved.]

House resumed.