My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
99: After Clause 12, insert the following new Clause—
“Procedure for orders under section 12
(1) The Secretary of State must not make an order under section 12 unless—
(a) a draft of the order has been laid before and approved by a resolution of each House; and(b) each of the resolutions for approving the draft was agreed more than 60 days after the day on which the draft was laid before the House in question.(2) No draft order under section 12 is to be laid before Parliament unless—
(a) the Secretary of State has prepared and published a report containing a proposal for the making of such provision; (b) the report sets out the Secretary of State’s reasons for making the proposal;(c) the report has been laid before Parliament and each House has approved the proposal contained in the report, either with or without modifications; and(d) the draft order gives effect to the proposal so far as approved by both Houses.(3) An approval given in either House satisfies the requirements of subsection (2)(c) only if it was given in that House on the first occasion on which a motion for the approval of the proposal was made in that House by a Minister of the Crown after—
(a) the laying of the report; or(b) if more than one report containing that proposal has been laid before that House, the laying of the one laid most recently.(4) In reckoning a period of 60 days for the purposes of subsection (1), no account shall be taken of a day for which—
(a) Parliament is dissolved or prorogued; or(b) the House in question is adjourned as part of an adjournment for more than four days.”
The noble Baroness said: My amendment would require the Secretary of State to publish a report setting out his reasons for believing that the time was right to expose the core offender management tasks, such as writing court reports, to the new process of contestability, which lies at the heart of the Bill. It would do so by applying the super-affirmative procedure to the statutory instrument that would remove Clause 4. Noble Lords—at least those who have been involved in the Bill—will recall that Clause 4 prevents the Secretary of State from opening up core offender management work to contestability. That protection, however, can be whisked away by a statutory instrument laid under the powers given to the Secretary of State in Clause 12.
The Government have said that they will not expose services such as the writing of court reports to contestability until they are sure that the time is right to do so, or at least for the next three years. The Committee has debated Clauses 4 and 12 in some detail and has set out its considerable concerns about how they will operate. Indeed, the greater part of our debates in the first four days of Committee on the Bill has been dominated by the concerns of noble Lords about the way in which the Government intend to push ahead with their policy of contestability without first being adequately clear about its operation. My Amendment No. 99 has been proposed to find a way forward that may satisfy all sides of the debate. We believe that only the process recognised by the Delegated Powers and Regulatory Reform Committee as being the most stringent secondary legislation mechanism available should be used to remove the protection for core services in Clause 4.
So how would the amendment work and why do we think that it is right for this Bill? If the Secretary of State wished to bring forward a statutory instrument to remove Clause 4, under my amendment he would first have to publish a report containing his proposals and giving his reasons for them. The report would have to set out why the Secretary of State believed that the time was right and it would have to give details of what had happened so far in exposing other non-core work to contestability, to enable the House to judge whether the time was right to let Clause 4 wither and die. The report would be laid before Parliament and both Houses would be required to approve it before the statutory instrument could proceed.
Effectively, the amendment would give this House what it so often calls for; that is, the opportunity to have an amendable statutory instrument. That would be superior to the existing position whereby instruments can be only accepted or rejected. Members of the Committee will be aware of how cautious I always am with regard to statutory instruments and how cautious noble Lords are generally. We have one recent example of a statutory instrument being rejected—the casinos statutory instrument. It was an extraordinary occasion; I think that it was only the second time in living memory that the House has rejected a statutory instrument. That course of action is taken very seriously and not lightly. If Members of the Committee check the list, they will see that I did not vote on that occasion. The Opposition were not whipped to vote. I followed the line that I always do; that is, if this House has given its approval to the primary legislation, it is a matter of great concern if we are in the position of having to vote against secondary legislation. It is not a matter in which I would wish to take part, except as a very last resort.
Why is this procedure right for this Bill? I believe that it is a way forward that would resolve some of the major concerns about the Bill as a whole. It is of course a novel procedure. The Government first tried to introduce it during the passage of the Identity Cards Act. At that stage, I objected to its use on two grounds, both of which can be ignored for the purposes of this Bill. First, I said that the procedure was wrong for a change of constitutional significance to the liberty of every citizen, as the change to all-out compulsion for ID cards in the Identity Cards Act would be. Secondly, I did not believe that the Government were serious about abiding by the implications of the process of the super-affirmative procedure. My suspicions were based on comments made by the Minister in another place, Mr Andy Burnham, who effectively said, “Well, it does not really matter what the House of Lords do. We will have supremacy anyway, so it is not really an amendable regulation”.
The first matter does not apply here, so this is not the wrong process for this Bill. My second objection was resolved clearly by the noble Baroness, Lady Scotland, in this House. I am grateful to her for her clear assurance at Report stage of the Identity Cards Bill on 23 January 2006, at cols. 990-94 of the Official Report. She made it clear that, if this House did not agree to an amended form of a statutory instrument under the super-affirmative procedure, the only way forward for the Government would be by primary legislation. She did the House a service for the future by making that so clear.
I believe that the limitation in Clause 4 is fundamental, as I made clear at Second Reading and in Committee. It is a matter of policy, as paragraph 28 of the report from the Delegated Powers and Regulatory Reform Committee observed. For a matter as fundamental to the Bill as the limitation in Clause 4 and the allied proposals in Clause 12, the super-affirmative procedure would be the appropriate course to take. I hope that the Minister will agree and will accept the amendment. I beg to move.
I understand that Napo supports this amendment. As has been said, Clause 4 exempts court work from the threat of contracting out. Napo fully supports this clause and believes that there would be a conflict of interest should the private sector be involved in giving information to the court. Currently, the Probation Service provides nearly 200,000 reports for the courts, including pre-sentencing reports and fast-track reports, which are normally provided on the day. It seems essential that the Government should ensure that there is no conflict of interest.
The super-affirmative resolution would provide a number of safeguards to ensure that the exclusion of court work could not be reversed merely by statutory instrument. The main safeguards would be that a draft of the order would have to be laid before each House and a report containing the proposal would be published. The Secretary of State would have to give reasons for the proposal and the report would have to be approved by each House. I support the amendment.
As has been stated on many occasions during our debates in Committee, the restriction of court work to the Probation Service is important and necessary. Among other matters, there is a potential conflict of interest. Just to rehearse that argument, should a person be giving information or advice to the court on, say, tagging when he works for a company involved in the provision of electronic tagging equipment, there would be a clear conflict of interest, which would be challengeable under Section 6 of the Human Rights Act. Since the Probation Service currently provides nearly 200,000 reports annually for the courts, it is clearly essential that the Government should ensure that there is no such conflict.
Given the importance that we have attached, in all our discussions on the Bill, to the restriction of this area of work to the Probation Service, Clause 4 should not, as the noble Baroness, Lady Anelay, said, be able to be repealed by the Secretary of State without that first being given the fullest consideration and debate in both Houses of Parliament. Indeed, it is no wonder that there has been so much concern about the way in which the Bill and its provisions are presented out there in the community at large when the powers of the Secretary of State are such that he can give with one hand and take away with the other by statutory instrument under one of the shortest clauses of the Bill.
We therefore particularly support the introduction of the super-affirmative resolution procedure, with its safeguards, to ensure that the exclusion of court work is not reversed merely by statutory instrument. The safeguards are that a draft order would have to be laid before each House, the report containing the proposals would have to be published, the Secretary of State would have to give reasons for the proposal, and the report would have to be approved by each House. Anything less would simply not be acceptable.
I, too, support the amendment, partly on the grounds that have been advanced—the potential conflict of interest. Also, I suspect that, despite the advantages that may flow from the introduction of other agencies in probation work, certain features of the justice system belong to the state; that is, they should be part of the public activity of the state. Sentencing in particular is the passing of judgment in the name of the state on right and wrong. The aspect that concerns me in this is pre-sentencing reports. We may move away from the notion that sentencing is a judgment on right and wrong pronounced in the name of the whole of society to its being influenced by private interests. It is important to keep certain aspects of the system strictly part of the public exercise of justice. That would be my anxiety if Clause 4 was to be repealed, so the careful safeguards being proposed against its repeal should be supported.
I, too, support the amendment for the reasons that have been given. I am particularly glad that the right reverend Prelate has just spoken in those terms because, as a part of the criminal justice system, the work of the Probation Service is carried out within the community and this sort of safeguard needs to be attached to the tasks that are peculiarly its own and that it carries out on behalf of the state. I am also glad that the noble Baroness, Lady Anelay, has laid out this amendment with her traditional clarity. It enables me easily to withdraw my suggestion that Clause 12 should not stand part, which is a blunt instrument. This proposal is entirely positive and sets out all the arguments with admirable clarity.
In Clause 4, it is proposed that Parliament should lay a restriction on the way in which the provisions of the Bill are applied and, in Clause 12, it is proposed that the Secretary of State should be allowed, on his own initiative, to dispose of that restriction. My noble friend and her supporters are proposing only that he should not be allowed to do that on his own motion, but that Parliament should retain the discretion to dispose of Clause 4 on his recommendation if he thinks fit. The amendment would ratchet up the control that Parliament has on the Executive rather than letting too much of it go free. I am wholly in favour of the amendment.
I strongly support the amendment. Clause 4 was added to the Bill because of the pressure that the Government were under at the time. It is doubly important that, if and when Clause 4 is removed by Clause 12, everyone should be satisfied that it is the right time for contestability to come on to the scene.
I do not want to add to the arguments that have been advanced. However, can the Minister confirm whether the judiciary and the legal professions have been consulted about this matter and whether they indicated any potential conflict of interest? Is there likely to be any problem in terms of membership of the judiciary on a probation board or probation trust?
We have had a number of discussions on and around this issue over the past few weeks as we have worked our way through the Bill in Committee. For many noble Lords, this is understandably a core issue, which is fundamental to their appreciation and understanding of the direction of travel that this piece of legislation represents. It is an interesting discussion and debate for all that, because, when it comes down to it, the noble Baroness, Lady Anelay, has put on the record quite clearly that she has no,
“philosophical or political objection to probation services being provided from outside the existing public provision”.—[Official Report, 21/5/07; col. 552.]
However, she has said that she has some serious doubts about the process. In essence, that is what we have come down to—some doubts about the process. Both major parties represented in your Lordships’ House are at one on the importance of contestability, but my noble friend Lady Scotland and I disagree with the noble Baroness, Lady Anelay, about some aspects of the process. It is in that area that I would like to offer some reassurance in the next few minutes.
Last week, when we considered Clause 4 and the noble Lord, Lord Ramsbotham, put forward his amendments, we had a constructive discussion about this issue. We have moved forward and there is now a broader understanding in the Committee about how the contestability process will work. However, we now have an opportunity to pull the various strands of that debate together.
Before I focus on the amendment, it may help if I remind the Committee of the history of Clauses 4 and 12 and how they came to be in the Bill in its current form. When the Bill was first introduced, it did not distinguish between different aspects of Probation Service provision in terms of what could and could not be delivered by non-public sector organisations. That is because we do not think that there are fundamental reasons of principle why any aspect of probation provision could not in theory be delivered outside what we strictly understand as being the public sector. As I have rehearsed, that is a view shared by the Benches opposite. However, the Bill sets out a framework for the longer term, and we have always said that we will move forward cautiously and at a sensible pace. I think that noble Lords have accepted that argument. We understand the risks and sensitivities involved, particularly those that have been raised by noble friends behind me.
As noble Lords will know, the work that probation does with offenders can be divided into two broad categories: offender management and interventions. To remind ourselves further, “offender management” refers to the management of individual cases. It is the process of assessment and sentence planning, implementation, review and evaluation that runs from the beginning to the end of an offender’s sentence. Interventions are structured or planned pieces of work identified in the sentence plan. Their purpose may be punishment, rehabilitation or public protection. Examples include accredited offending behaviour programmes such as those for sex offenders and domestic violence offenders, or curfews with electronic monitoring and unpaid work.
It is in the field of interventions where alternative providers have achieved the greatest level of involvement, and there has been much support for that. We want to build on that and increase their involvement, working alongside the public sector, to develop expertise and strengthen partnerships so that a more diverse range of provision is available in due course. In respect of the core offender management work, however, we have always said that we want to proceed much more cautiously because we do not think that alternative providers yet have the necessary expertise or experience to undertake that work. We subsequently firmed up that reassurance into a commitment given in the other place that we would not contract with a non-public sector provider for that area of work until 2010 at the earliest.
As the Bill approached Report and Third Reading in the other place, it was apparent that particular concerns remained in respect of one aspect of offender management; namely, the work that probation does in relation to courts. We responded to those concerns by tabling an amendment to the Bill that enables the Secretary of State to contract only with a public sector provider for the work that probation does in relation to courts. That amendment was passed unopposed and now forms Clause 4 of the Bill. It was coupled with what is now Clause 12 of the Bill, which enables the restriction to be lifted by means of an order subject to affirmative resolution.
Why do we think that such a power is needed? As I have made clear, we see no reason of principle why this or any other aspect of probation work should be reserved for the public sector alone. But the fact that we do not think it appropriate to open up this area to other providers now does not mean that we should rule out the possibility for all time. If we reach a stage where alternative providers have gained greater expertise and experience, where courts have full confidence in their abilities and where concerns about conflicts of interest have been addressed, the Government of the day may well wish to open up this area of work to competition to see whether it can be delivered more effectively by a non-public sector provider. We should have the flexibility to respond to those changed circumstances without having to wait for a suitable slot in primary legislation.
In that context, it is worth highlighting the fact that the court restriction is cast widely and covers much more than the specialist area of court reports and advice on sentencing. It also covers, for example, the provision of general advice and bail information. It may very well make sense for some of those less sensitive aspects of delivery to be opened up to other providers more quickly, which is why Clause 12(2) allows for Clause 4 to be repealed partially as well as in its entirety. We should not deny this or a future Government such flexibility, but we should attach to it an important safeguard in the form of the affirmative resolution procedure. That means that the Government could not lift the restriction without a vote to that effect in each House.
For a sensitive measure such as this, that is setting the bar high. The Government would need to present a convincing and effective case, backed with evidence, if they were to secure the support of both Houses, particularly this one. The Government currently have no majority here and the House can effectively operate a veto. That is a robust safeguard, and I believe that it is the right approach for an order of this importance.
I was glad that the Delegated Powers and Regulatory Reform Committee agreed that this procedure was appropriate. The noble Lady, Baroness Anelay, however, does not agree with either the Government or the Delegated Powers Committee—an unusual point, as it says.
I think it appropriate that I intervene, although it is somewhat unusual. I have not said that I disagree with the report of the Delegated Powers and Regulatory Reform Committee—indeed, I have quoted it. It was careful to point out that this was a matter of policy on something that was fundamental to the Bill. In other words, the committee left it to noble Lords to make up their minds about taking other processes with regard to this particular process of affirmative SI. As ever, the Delegated Powers and Regulatory Reform Committee does not pass comment on policy, as that is not its role. As politicians, we should.
I understand how the Delegated Powers and Regulatory Reform Committee works. My point is simply this: that committee agreed with the Government’s interpretation of what was required in terms of process and procedure. It did not suggest that the super-affirmative process was appropriate for dealing with this issue.
In that context, the amendment goes much further than the normal tried-and-tested procedures and seeks to apply a super-affirmative procedure. It seeks, in so doing, to impose an unnecessary delay by specifying that a draft order must be laid for at least 60 days before both Houses may debate the order. Further, it seeks to impose on both Houses by requiring them to approve a report that sets out what will be in the draft order. Both Houses would then be required to approve the same proposals, in the same Session, as set out in the order.
As the noble Baroness has conceded, the amendment was inspired, perhaps in her mind, by the super-affirmative resolution procedure set out in Section 18 of the Legislative and Regulatory Reform Act 2006, which is in many respects similar to the power proposed here. But the circumstances for which the super-affirmative power in the 2006 Act was designed bear no resemblance to the circumstances that we are dealing with here.
The Legislative and Regulatory Reform Act 2006, which I had the privilege of taking through your Lordships’ House, enables the Government to use secondary legislation to amend retrospectively primary legislation that made no provision for such amendment when it was passed by Parliament in the first place. It was designed for a different purpose altogether.
To reflect the wide-ranging nature of this power and to provide appropriate safeguards, the Act therefore followed the super-affirmative procedure first developed under the Regulatory Reform Act 2001, repealed by the later Act, which operates along the sort of lines set out in the amendment. Our situation is entirely different. Whereas the 2006 Act introduced powers to amend primary legislation for purposes that were not envisaged at the time that that legislation was passed, our intentions are open and clear. Indeed, this is the very purpose of Clause 12: to provide an order-making power to enable the subsequent repeal, in whole or in part, of Clause 4. So a super-affirmative procedure is quite inappropriate here. Indeed, it is ironic that a procedure that was intended to facilitate deregulation and the lifting of burdens should here be used with the aim of maintaining them.
I ask the Committee to think carefully about the implications of applying this procedure in circumstances that are so different from the ones that it was originally designed for. Quite aside from its impact on the probation provisions, it could set a most unhelpful precedent more widely and risk undermining the clear and well understood parliamentary procedures that have stood the test of time. Before noble Lords consider this further, I ask them to reflect carefully.
Under the normal affirmative procedure, the order will be laid in draft before both Houses, and the Government will be required to make their case to both Houses before the order can be made. When Ministers come to do so, they will need to fulfil the commitments that have been made during this Bill’s passage through both Houses: to demonstrate that the appropriate safeguards are in place to alleviate the concerns expressed during that passage; and to present evidence as to how the new arrangements are working in practice. In fact, my right honourable friend the Home Secretary gave just such an undertaking during the Third Reading debate in another place.
Whether a formal report is the best vehicle for doing so is a judgment that will need to be taken at that time, taking into account the specific circumstances under which the draft order has been laid before both Houses. It cannot be rigidly codified in advance, in ignorance of those circumstances or, indeed, of what exactly the Government propose in the order. The bottom line is that, if either House is not satisfied with the case that the Government bring to the House at that time, it will not support the order and the restriction will not be lifted.
This has been a valuable debate and has provided an opportunity to pull together a number of important issues, in particular the issue of conflict of interest. We do not believe that there is an intrinsic conflict of interest for private companies in writing pre-sentence reports, which is undoubtedly one of the issues that troubles noble Lords. The writing of reports will be done under the very strict guidelines already in place to prevent any similar potential conflicts of interest under current arrangements, when the local board is in the position of both advising on and implementing the sentences of the court. However, we recognise that we have to get the system right before opening up this sensitive area of work to other sectors. That is why we have added this clause to the Bill. In any case, the awarding of a sentence—that being an issue raised in this context—will remain entirely at the discretion of the sentencer.
The noble Lord, Lord Dholakia, asked whether there had been consultation with the judiciary. There has been very wide consultation on the probation proposals. It is partly in recognition of the concerns about conflicts of interest that Clause 4 was inserted in the first instance.
We are clear on this. We believe that we have a robust procedure that is tried and tested. It will inevitably mean that we must bring forward and carefully explain to both Houses the basis of our decision to move forward in the contestability field. The noble Baroness has drawn together in essence a procedure designed for an entirely different purpose, under legislation intended broadly speaking to deregulate rather than over-regulate. I invite the Committee to consider its position carefully before it decides to agree or take on board the proposal made in the amendment. I hope that, having heard what I have said, the noble Baroness will feel able to withdraw her amendment.
I begin by knocking on the head the allegation that the Minister makes that somehow I am abusing a parliamentary process. That is what he is suggesting, in very fancy words.
The Government have chosen to cite one Act —the Legislative and Regulatory Reform Act 2006—but they have themselves adapted the super-affirmative procedure to suit their own ends in other legislation, including the Civil Contingencies Act 2004 and the ID Cards Bill, in which an amendment was included to that effect until they decided to accede to the request of noble Lords that, instead of any kind of affirmative instrument, there shouldbe primary legislation. So we should not let the Government hide behind an allegation that the Committee will be veering off in a new direction. Parliamentary procedure should be flexible enough to meet the needs of democracy and the way in which the legislature works; it should not just be flexible for the Government to have the power to exercise their own authority.
In this case the issue is simple and I am grateful indeed to all noble Lords who spoke in favour of the amendment. The way in which Clause 4 should be removed is fundamental to the Bill, because the provision gives core protection to the core management work. The Minister says that over the past couple of weeks we have got a greater understanding of how contestability will work. No, we have not; much still remains hidden and uncertain. He is right to say that I have no objection in principle to contestability. My problem is with process, and it comes to a head with putting forward this amendment as a way of trying to resolve the problem that I have with process. He says that the affirmative procedure, by which we can merely reject or accept, sets the bar high enough. It is not high enough for something that, as the right reverend Prelate the Bishop of Chester said, is a matter of judgment on right and wrong. On this matter, I wish to test of the opinion of the Committee.
Clause 13 agreed to.