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Grand Committee

Volume 720: debated on Tuesday 13 July 2010

Grand Committee

Tuesday, 13 July 2010.

My Lords, welcome to the first session of the Grand Committee in this new Parliament. Before the Minister moves that the first order be considered, I remind noble Lords that, in the case of each order, the Motion before the Committee will be that the Committee consider the order in question. Motions to approve the orders will be moved in the Chamber in the usual way. Of course, if there is a Division in the House, the Committee will adjourn for 10 minutes.

Legislative Reform (Licensing) (Interim Authority Notices etc) Order 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that is has considered the Legislative Reform (Licensing) (Interim Authority Notices etc) Order 2010.

Relevant document: 8th Report, Session 2009-10, from the Regulatory Reform Committee.

My Lords, the order before us today was laid before Parliament on 10 March by the previous Government. It will extend five time periods under the Licensing Act 2003. First, it will extend the period during which specified persons may issue an interim authority notice, known as an IAN, following a lapse caused by the death, incapacity or insolvency of the licence holder from seven to 28 days. Secondly, it will extend the period during which a person may apply for reinstatement on transfer of the licence to that person following its lapse from seven to 28 days. Thirdly, it will extend the period during which an IAN has effect from two to three months. Fourthly, it will extend the period during which the police may object to a temporary event notice, known as a TEN, from 48 hours to two working days. Fifthly, it will extend the period during which the police may object to an IAN from 48 hours to two working days.

These relatively minor changes have been requested for some time by those affected by the legislation. In particular, the British Beer & Pub Association and various licensing lawyers have requested the extension of the seven-day deadlines. Also, the Association of Chief Police Officers has requested the change to the police objection period. It has told us that the current timescales are too short and that this amounts to an administrative burden. By allowing more time to conduct these procedures, we will help businesses going through difficult times and assist the police in the conduct of their duties. Therefore, we are seeking to complete the process of parliamentary scrutiny and to bring these changes into force as soon as possible.

The previous Government conducted a consultation on these measures alongside unrelated proposals to allow the police discretion to accept TENs received without the required notice of 10 working days and to remove the requirement that local licensing authorities consult on the publication of a new licensing policy statement every three years. The consultation ended on 9 February this year. There were 74 responses, covering a wide cross-section of those affected by the changes, including local authorities, the licensed trade and the police. Several of the responses were from national representative bodies responding on behalf of their memberships. These included the British Beer & Pub Association, Local Authorities Co-ordinators of Regulatory Services and the Association of Chief Police Officers. There was near unanimous support for the proposals, which were subsequently brought forward in this order. The other proposals, although generally supported in principle, received a more mixed response. The previous Government therefore decided not to proceed with them.

The House of Lords Select Committee on Delegated Powers and Regulatory Reform and the Commons Regulatory Reform Committee both unanimously approved the LRO. Their reports were published on 25 March. I am grateful to the committees for their work in scrutinising this order.

I shall deal first with the elements that are designed to make it easier to administer the affairs of licence holders after death, incapacity or insolvency. In brief, the order will allow them a longer period to transfer the licence. Under the Licensing Act 2003, anyone who wishes to sell alcohol or to supply it to a members’ club, to put on regulated entertainment or to provide late-night refreshment must obtain authorisation. This can be a temporary event notice, a club premises certificate or a premises licence.

Ordinarily, businesses that include licensable activities, such as pubs, supermarkets, off-licences and late-night takeaways, will do so under a premises licence. This licence is held in the name of an individual and lapses automatically if the holder of the licence dies, becomes mentally incapable or becomes insolvent—alternatively, in the case of a company, if the company becomes insolvent or is dissolved. This could, of course, have a damaging effect on the business and on those with an interest, such as the landlord or employees. Therefore, the Act makes provision for the revival of the licence after such a lapse. There are two mechanisms: reinstatement on transfer and an interim authority notice.

A reinstatement on transfer is, in practice, the most common method of reviving a lapsed licence. The licence is reinstated by transferring it permanently to another holder. The process is similar to the ordinary transfer of a licence that has not lapsed. In particular, if the chief officer of police is satisfied that the exceptional circumstances of the case are such that the transfer would undermine the prevention of crime, he has 14 days to issue a notice stating so.

Alternatively, someone with a prescribed interest in the premises, such as a freehold interest, or a person connected to the former holder of the licence, such as their personal representative or a person with power of attorney, can apply for an interim authority notice, or IAN. This is a less frequently used procedure in practice, because the authority that it provides is, as the name implies, only temporary. Currently, the maximum length of the interim authority is two months. The licence will lapse again unless it is transferred during this period. The order will extend the maximum duration of interim authority to three months. Respondents to the consultation said that this would be invaluable in some circumstances and did not identify any risks in this modest extension. When an IAN is issued, the chief officer of police has 48 hours to issue a notice relating to crime prevention. The order will extend this period for police objection to two working days. I shall return to this point later in the context of the TENs, for which a similar procedure exists.

On the extension of the deadline for the issue of an IAN or reinstatement on transfer, for both processes there is currently a deadline of seven days after the licence lapses in which steps can be taken to revive it. The most important element of the order before the Committee is the extension of that period to 28 days. The impact assessment published with the consultation set out estimates for the savings that this will make for businesses. It estimates that the extension to 28 days will have significant benefits for those managing the affairs of a business after bereavement or insolvency. In particular, to use estimates provided by local licensing authorities on the number of applications received after the deadline, it could mean annual savings of around £5.2 million to £9.7 million in lost turnover. Additionally, there would be a modest £0.4 million saving annually in the fees and administrative costs currently caused by the need to reapply for lapsed licences.

More important than these financial calculations, perhaps, are the compassionate grounds for extending the deadline. The British Beer & Pub Association said in its response to the consultation:

“There have been well documented cases of the distress caused where licensees have died and relatives have struggled to cope with the seven day period as currently exists. There is no justification or reason that we can see for such a short timescale regarding this process. The current requirements place an unnecessary burden on licensees at a sensitive time”.

Medway Council also supported the proposal and said:

“We have had situations where the licensee died and the family were unable to put in an interim within the 7 days due to bereavement and making funeral arrangements. The licence lapsed and this caused the family considerable distress as they had to close and reapply for a licence”.

The main motivation for this order is to make certain that such situations do not recur.

In comparison with other processes under the Act, such as a new application for a premises licence, the processes for interim authority and reinstatement on transfer are relatively light touch. In particular, it is only the police who can object on crime and disorder grounds and not, for example, environmental health departments on public nuisance grounds.

Sitting suspended for a Division in the House.

Nevertheless, the extension of the timescales described will leave sufficient safeguards in place to ensure that the public are protected. For example, all the conditions of the licence will continue to apply and the consequence of breach is the same as usual, including a potential six-month sentence on conviction. Any sales of alcohol still have to be supervised by a designated premises supervisor. This individual is required to possess a personal licence and to have undergone a criminal record check. The powers of search and entry, as well as the police and magistrates’ power of closure, continue to apply in respect of any licensed premises. Any interested parties, including residents and responsible authorities, such as the police, can apply to the licensing authority for a review of the licence.

The extension of the police objection period for temporary event notices and IANs enables the user to carry out licensable activities, including sales of alcohol and the provision of regulated entertainment on an occasional basis, without any other authorisation.

The TENs regime is light touch; in particular, only the police may object to a TEN on crime and disorder grounds. On the other hand, various limits apply to TENs to minimise the potential impacts; for example, no more than 499 people can attend the event at the same time and there can be no more than 12 events per year at the same place. Currently, the TEN must be copied to the police at least 10 working days before the event. The police have to have a maximum of 48 hours to issue an objection on crime and disorder grounds. An analogous 48-hour period applies to interim authority notices.

There is evidence to suggest that in some circumstances the current 48-hour objection period does not give the police the time intended and that that may sometimes limit or prevent the police from making a proper assessment of the risk of crime and disorder. An example is where a TEN is delivered to a police station that may be unmanned on a Friday night, so that the TEN is not received by the chief officer of police until the following week, by which time the objection period will have expired. Therefore, the order seeks to extend the 48-hour period to two working days for both TENs and IANs. That small change should make certain that the police always have sufficient time to consider notices properly.

There was almost unanimous approval from those who responded to this part of the consultation for the extension of the police objection period to at least two working days. The consultation document also asked for views on an extension to three working days in the case of TENs. The majority who expressed a preference opposed the further extension to three working days. Therefore, the order before the Committee proposes two working days. Although the police consider this change to be important, we do not consider that the extension would mean a significant net increase in police objections. That is because some police objections that may currently be made on a precautionary basis may not be made if the police have sufficient time to satisfy themselves about concerns. A very small number of respondents were opposed to any extension of the deadline for police objection for either TENs or IANs or both. The main argument was that the current 48-hour period causes no problems. That was contradicted by the overwhelming majority of responses, including all those from police representatives.

The order before the Grand Committee will assist business during difficult periods. It will also assist the police in making assessments of risks of crime and disorder. I commend the order to the Committee.

My Lords, I am sure that everyone in the Grand Committee is grateful to the Minister for her full and clear exposition of the order. As she said, this was originally published when Labour was in government and, although not only for that reason, we welcome the order. I have three fairly minor questions for the Minister and I would be grateful if she could let me know what she feels about them. First, we are looking for an assurance on the substantial cuts to police budgets and the coalition’s desire to see freezes to local authority budgets. Will that impact on the police’s ability to object to local authorities to administer interim authority notices? Secondly, in the case of temporary event notices we understand that the change from 48 hours to two working days is proposed because some police stations are not staffed at the weekends. The coalition is proposing substantial cuts to front-line policing. Can the coalition assure us that the police’s ability to object to TENs will not be compromised by cuts to front-line policing? Finally, do the Government have any plans to change the fees for temporary event notices? Those are the only three comments that I wish to make. Again, I thank the Minister for such a clear presentation of the order.

My Lords, having looked through the order and the rather daunting Explanatory Notes, I realised that basically this series of changes is designed to make it easier for everyone involved to operate. Extending the period from seven days to 28, as proposed, is a positive suggestion. The idea of going to working days rather than an arbitrary number of hours for police objections is another totally sensible suggestion, as are the other extensions of periods that are brought in. When the previous Government and the current Government have proven something, it would be foolhardy to go beyond that.

My Lords, the Minister mentioned that she does not envisage any substantial police objections. Was there any consultation with the Association of Chief Police Officers on this matter? Sometimes there may be individual points of view from different constabularies, but seldom do we get a total view. It would be helpful to know whether such consultation took place and, if so, the response.

My Lords, I am most grateful to noble Lords for their questions, which I hope to be able to clarify. I can assure the noble Lord, Lord Addington, that there will not be any further cuts in that respect. As to the comments made by the noble Lord, Lord Dholakia, we have had several consultations. The list is in the dossier. The objections were included in what I said earlier. I can send the noble Lord the details of the consultations. I thank him for that rather important point.

I thank the noble Lord, Lord Evans, for his three questions. First, I should clarify that the Delegated Powers Committee said that the order needed to be an affirmative instrument so that it would have to be approved and so that a positive case would have to be made for it. As an affirmative instrument, it must be approved, which is why we are doing this today. The committee stated:

“The Committee considers that the Order meets the tests in the 2006 Act, is not otherwise inappropriate for the LRO procedure, and recommends that it be upgraded to the affirmative procedure”.

The noble Lord also asked whether the Government intend to charge a fee for a temporary event notice. At the moment, the fee for a TEN is £21. The Government have no plans to change that. Regarding cuts, we estimate that the change to the TENs objection period would have an extremely small notional burden on the TEN users of £8,000 to £61,000 annually in England and Wales. We have no plans to cut the licensing fees. The fees are set to cover the cost of administering and enforcing the licensing programme. Those costs should not fall on the taxpayer. However, we will look to deregulate where possible and, where regulation is needed, to reduce the burden.

The third question concerned the revival of licences. I imagine that by “applications”, the noble Lord means reinstatement of transfers. The estimate is 494 to 658 additional revivals of licences per year.

I thank the Committee on behalf of the House for having scrutinised the order. I can give assurances that we treat this matter with all seriousness. I am sure that any future licensing legislation will be the subject of lively debate and that there will be further discussions on this subject. I am sure that noble Lords recognise the positive benefits of this measure and its importance. As Walter Bagehot said in 1867:

“The natural impulse of the English people is to resist authority”.

I trust that, in these circumstances, that will not be the case. I commend the order to the Committee and welcome the furthering of the recommendations.

Motion agreed.

National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has now considered the National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010.

Relevant document: 12th Report, Session 2009-10, from the Joint Committee on Statutory Instruments.

My Lords, I beg to move that the Grand Committee does report to the House that it has considered the draft National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010. For ease, I shall henceforth refer to this order as the housing LCO. This is the first LCO that I have spoken to in this House. It is a particular pleasure to deal with devolution issues that relate to Wales after many years of being more familiar with devolution issues that relate to Scotland.

This draft housing LCO was approved by the National Assembly on 24 February. The previous Government laid the draft LCO before Parliament in March. For whatever reason, no time was found to debate the LCO in either House before the general election. I am pleased that the coalition Government committed to take forward the housing LCO in our programme for government, which is what we are doing. The draft LCO was approved by the other place on 7 July, having been debated in Committee on 5 July, and it comes before this Grand Committee today for debate only two months after the coalition Government took office.

Noble Lords may be aware of the discussions that have taken place between the coalition Government and the Welsh Assembly Government in relation to the scope of this LCO. I shall address that issue immediately. The coalition Government have been concerned that this LCO devolves legislative competence that the Assembly would not necessarily need. The Assembly Government are committed to seeking legislative competence to suspend the right to buy in areas of housing pressure. However, competence in the LCO covers disposals of social housing generally, including abolition of the right to buy. Indeed, as I understand the situation, when an LCO on this issue was first proposed in 2008, the Welsh Affairs Committee in the other place recommended that it should not proceed while it included the ability to abolish the right to buy. We are grateful indeed for the reassurances given by the Welsh Assembly Government that they are fully committed to the right to buy scheme and have no intention whatsoever to abolish it.

The coalition Government are similarly grateful for a further reassurance from the Assembly Government not to seek powers to usurp the views of local people and dictate the location of Gypsy and Traveller sites. Given these assurances, and our commitment to progress this order through Parliament before the Summer Recess, I am pleased to support this LCO today.

I apologise for interrupting the Minister, but as this is a vital point perhaps we might clear it up straightaway. He says that an assurance has been given, and I am sure that that is true, but paragraph 7.23 of the Explanatory Memorandum states that,

“legislative competence would enable the Assembly, if it so wished, to replace the current Right to Buy scheme with improved and updated schemes to assist home ownership”.

That suggests that the Assembly might abolish the scheme but replace it with something else. Does the present competence order still allow the Assembly to do such a thing?

My understanding is that it does, although equally I understand that it is the intention—if only that of the present Welsh Assembly Government, which would not bind their successors—to use this to suspend the right to buy in areas of housing pressure. I understand, on the point made by the noble Lord, Lord Rowlands, that they could do what the Explanatory Memorandum suggests.

The agreement to take forward this LCO, following three years of some frustration and procedural hurdles, demonstrates the success of a relationship of mutual respect and collaboration between Westminster and Cardiff. I am sure that noble Lords will agree that, in the new politics of this new era, mature attitudes of co-operation and compromise are signs of strength, not of weakness.

I turn to the detailed content of the draft order. The order will devolve legislative competence in relation to many aspects of housing policy, enabling the Welsh Assembly Government to propose legislation to implement their new housing strategy Improving Lives and Communities: Homes in Wales. The strategy is to be implemented through an action plan and it is my understanding that in some areas this will require primary legislation. I hope that this LCO will facilitate the implementation of the strategy. Indeed, I understand that earlier today the First Minister announced the Welsh Assembly Government’s legislative programme for 2010-11. He announced plans to introduce a housing Measure, making use of the legislative competence devolved to the National Assembly via this LCO, subject to its being passed and subsequently approved by the Privy Council. As I think the First Minister indicated, it would allow for local authorities to apply to Welsh Assembly Government Ministers for the temporary suspension of the right to buy in areas of housing pressure, as well as increasing those Ministers’ intervention powers in relation to social housing.

The draft order is structured around two key themes: social housing and meeting the housing needs of vulnerable people. The LCO would also devolve competence in relation to the amount of council tax charged on second homes. Specifically, it will insert seven new matters, Matters 11.2 to 11.8, into Field 11, the housing field, of Part 1 of Schedule 5 to the Government of Wales Act 2006. It will also insert one matter, Matter 12.18, into Field 12, the local government field.

Taken together, Matters 11.2 and 11.3 would allow the Assembly to legislate to strengthen powers of early intervention in failing housing associations and modify the approach taken to allocations. Matter 11.4 would allow the Assembly to legislate to standardise local authority and housing association tenancy agreements, thereby removing an impediment to stock transfer. Matter 11.5 covers the disposal of land held or used for social housing. The One Wales agreement includes the commitment to,

“draw down legislative power … in order to suspend the Right to Buy in areas of housing pressure”.

The Assembly Government want temporarily to suspend the scheme in specific local circumstances to address local difficulties. As I have said, Assembly Government Ministers have made it clear that they have no intention of abolishing the right to buy in Wales.

Matter 11.6 covers housing-related support to those who need help to occupy their homes. Matter 11.7 is about provisions by local authorities of caravan sites for Gypsies and Travellers. The Assembly Government intend to propose legislation compelling local authorities to provide sites for the accommodation of Gypsies and Travellers when a need is clearly identified. The coalition Government are grateful to the Assembly Government for their assurance that they will not seek routinely to dictate to local authorities the location of these Gypsy and Traveller sites.

Matter 11.8 covers homelessness. The Assembly Government may legislate to tackle the underlying causes of homelessness and to place a stronger emphasis on homelessness prevention. Finally, the National Assembly would be able to legislate to increase the amount of council tax charged on dwellings that are not a main residence as a result of Matter 12.18.

The LCO was subject to pre-legislative scrutiny by the Constitution Committee of this House, the Welsh Affairs Committee in the other place and a committee of the National Assembly. I am grateful for the thorough scrutiny carried out by those committees. The Constitution Committee of your Lordships’ House, on which the noble Lord, Lord Rowlands, and I had the privilege to serve—I do not think that I was present when this order came before it—concluded that this LCO raises no issues of constitutional principle.

The Welsh Affairs Committee recommended that matters in the LCO relating to social housing would be clearer by being merged into a single matter. However, if that were done, the new matter would require exceptions and carve-outs, which the committee had previously recommended should be avoided. Therefore, those matters have not been changed and some of the definitions have been clarified. The committee also suggested that the name of the LCO should more accurately reflect the matters that it contains. After a great deal of consideration, it was concluded that the title of the LCO should continue to follow standard drafting convention and include the names of the fields in Schedule 5 to which the LCO relates—on this occasion, housing and local government. Finally, the Explanatory Memorandum was further clarified in relation to the definition of the terms “homelessness”, “Gypsies and Travellers” and “caravan”, as used in the LCO—specifically, references to Gypsies and Travellers were capitalised.

I hope that noble Lords will agree that this LCO devolves competence across many important aspects of housing policy, thereby enabling broad-ranging legislation to be brought before the National Assembly for Wales. This coalition Government share the Assembly Government’s frustration that the devolution of housing powers has taken some considerable time to come about—perhaps it is a frustration shared by other Members of the Committee here today—but nevertheless here we are. We are pleased that, as a result of some honest and open discussions between Ministers in Whitehall and Ministers in Cardiff Bay, there is a broad consensus for taking forward this legislative competence order. I hope that the spirit of co-operation will continue. In that spirit, I commend the order to the Committee.

My Lords, I thank the Minister for his statement today, which I very much welcome. I congratulate him on his appointment as Minister responsible for Welsh affairs. As he said, this is the first time that he has spoken on such Welsh matters, but I am also aware of the Minister’s great service in Scotland, both as an MP and as an MSP, where he served as Deputy First Minister in the Lib-Lab coalition from 1999 to 2005. I am sure that in time the Minister will realise that Welsh politics are very different from Scottish politics. No doubt, the number of distinguished Welsh Peers on both sides of the coalition Government will be able to advise him on the nature of politics in Wales. I wish him well.

The housing LCO has taken considerable time to get to its final stages. The original housing LCO was considered by the Welsh Affairs Committee in 2008, having been submitted by the Welsh Assembly Government in 2007. At that time, reservations were expressed by the Welsh Affairs Committee regarding the draft and the contradiction between the Explanatory Notes and the LCO, specifically on to the right to buy. The Welsh Assembly Government undertook a consultation and elaborated considerably on the approach to social housing. There were several reports, the most important of which was, we believe, the Essex report. Many of its recommendations were incorporated in the new housing LCO.

That revised LCO was considered by a scrutiny committee of the Welsh Assembly and by the Welsh Affairs Committee in another place during the previous Parliament. Conservative members of the Welsh Affairs Committee voted against the housing LCO, objecting to the reference to the Welsh Assembly Government having reserved power to ensure that the local authorities in Wales provided sites for Gypsies and Travellers. They also believed that the LCO should not make any reference to the lifting of the right to buy.

As the general election approached, it seemed that the LCO would have to go into the wash-up, but unfortunately for the Welsh Assembly no agreement could be reached because of the Conservative Party’s objections, which were set out in a letter dated 1 April from the then shadow Minister for Wales, David Jones, to the then Under-Secretary of State for Wales, Wayne David. It outlined the two objections to the proposed order. It stated:

“We … are concerned that … it would give the Welsh Assembly competence to abolish the right to buy. You will recall that during the select committee evidence session I questioned both you and Jocelyn Davies closely on this issue. Both you and she confirmed that it was no part of the Assembly government’s policy to abolish the right to buy. In those circumstances therefore the competence … is otiose. Secondly, the order would empower the Assembly to pass Measures that would give Welsh Ministers the right to impose a location of Gypsy and traveller sites upon local communities. The Conservative Party believes very strongly that the local authorities are best placed to decide the location of traveller’s sites, being closer both democratically and actually to the affected communities”.

The Conservatives went on to make it clear that they would not agree to the housing LCO as it stood, so it was not included in the wash-up, much to the disappointment of those in the Welsh Assembly who had been waiting for a conclusion to this matter.

We will come back to the noble Baroness, Lady Gale, after the Division. The Committee will adjourn for 10 minutes.

Sitting suspended for a Division in the House.

As I said, the housing LCO could not be included in the wash-up, much to the disappointment of those in the Assembly who were waiting for a conclusion to this matter. A report in the Western Mail on 24 June stated:

“Conservative Wales Office Minister David Jones said he was not prepared to allow Ms Davies’ Sustainable Housing Legislative Competence Order (LCO) through unless it was amended to make clear that the right to buy council houses would not be abolished in Wales … Politicians at Cardiff Bay have been trying for three years to get legislative powers relating to housing transferred to them. An earlier version of the LCO was knocked back while Labour was in power, and the new coalition at Westminster has rejected the latest draft … Meanwhile Welsh Liberal Democrat housing spokesman Peter Black claimed that the veto of the LCO breached the Westminster coalition agreement. The relevant clause in the agreement states: ‘We will take forward the Sustainable Homes Legislative Competence Order’”.

On 29 June, the Wales Office issued a press statement:

“In the spirit of mutual respect between Westminster and Cardiff Bay, the Welsh Office will take forward the Assembly’s Sustainable Housing LCO unamended, Welsh Office minister David Jones announced today (28 June) … Mr Jones said: ‘Last week Deputy Minister for Housing Jocelyn Davies and I reached an amicable agreement on an amended Order to be taken forward. But having made further enquiries, the Welsh Office established that it would in practice be virtually impossible for the amended Order to complete its passage through Parliament to enable it to be put to the Privy Council for approval in July. We therefore decided, in pursuance of the spirit of mutual respect and in reliance to the assurances given by the Welsh Assembly Government to proceed to put the original draft LCO in its unamended form before both Houses of Parliament for confirmation as quickly as possible, so that the Order may be made by the Privy Council next month’”.

Why was there this change of heart? After all this time, in the matter of a few days—between 24 June and 28 June—why did the Wales Office Minister decide that the original LCO was now able to proceed?

Whatever the reason, we are pleased that there has been this complete U-turn from what the Conservatives were saying before and after the general election. This is welcome news. At long last the Welsh Assembly will get the LCO that it wanted, which will bring about a much improved method of social housing in Wales, meeting the needs of the Welsh people in a more positive and constructive manner.

My Lords, I, too, welcome my noble and learned friend to his new position in the coalition Government and I wish him well, particularly in relation to Wales.

As we have heard, this LCO has been a long time coming, but not under this Government. In fact, we have made up for whatever delay there was under the previous Government. However, it is now here and I do not intend to delay its passage, although I am not entirely uncritical of it. We are, after all, transferring extensive legislative powers in the housing field in this order and those of us who have previous governmental experience in this area are anxious to assist the National Assembly and its Government to exercise those powers in the best interests of the people of Wales. I had ministerial responsibility for housing in Wales in the early 1980s when the right of council tenants to buy their rented properties was first introduced to Wales, much against the wishes of local housing authorities. Of course, the right to buy quickly became a popular policy with sitting secure tenants and has remained so over the years.

According to the Explanatory Memorandum—page 8, paragraph 7.20—there have been some 140,000 sales in Wales, which is almost half the original social housing stock. The right to buy was not abolished during the 13 years of Labour rule, so one may conclude that it was accepted by the major parties. The Assembly has, however, reduced the maximum discount available from £24,000 to £16,000 and has extended the rural areas where there are restrictions on resale of right-to-buy properties. So perhaps the right to buy is not sweet music to everyone’s ears.

The benefits and advantages of owner occupation to the owner and to society are obvious and I shall not rehearse them. The key fact to remember is that the secure council tenant who becomes a buyer takes an immediate interest in the maintenance and improvement of his or her property and no longer waits for the council landlord to cut the privet hedge, subsidise the rent and perform all the functions of a responsible landlord. There is a tendency on our part now to forget just how heavy a burden housing subsidy and repair and maintenance costs can become on housing authorities and taxpayers. Those who are intent on increasing social housing should consider these factors and realise what they are letting themselves in for in terms of cost when the stock is enlarged.

A local authority’s housing stock may be reduced as a result of right-to-buy purchases, but the locality’s total available housing stock is undiminished. That point, too, is often overlooked or ignored. When the house is sold to its tenant, some people take the view that that house seems to have disappeared, but that is not the case.

As my noble and learned friend said, assurances have been given by the Assembly Government Minister, Jocelyn Davies, that the intention of the Assembly is not to abolish the right to buy but to limit sales in areas of housing pressure. There is nothing new in that. Limitations were imposed on council house sales in sensitive areas such as the national parks from the earliest days and such restrictions continue. They are not confined to Wales; they also apply in the Lake District, for example.

What is important in this right-to-buy context, in this order more generally and in the legislation that may flow from it, is that the best interests of the individual and his or her rights should be preserved and not overridden to enhance the control and power of authorities over citizens’ lives, as has happened in the past. There is a great deal of talk these days about more powers for the National Assembly; indeed, we are about to have a referendum on the issue next year. I for one would like to hear more talk in our representative institutions about the devolution of powers to a more local and community level. This is why there has been such concern about an Assembly power to direct local authorities to provide specific locations for Gypsy and Traveller sites, irrespective of the views of local communities. The individual’s rights and well-being must also be carefully considered in the context of the provision in this order to allow increased council tax on second homes. Such decisions, taken too abruptly and in a sweeping fashion at the wrong time, could cause a severe decline in property values across whole swathes of Wales and could cause chronic rural depopulation, such as we experienced in mid-Wales in the previous century, to rear its ugly head again; it could at least worsen the depopulation problem.

Finally, we must recognise that we are facing an era of severe austerity as a result of the legacy of unparalleled debt that this Government have inherited from their prodigal predecessor. Many things that looked achievable at one stage no longer appear so. Adapting to our new and straitened circumstances will take time—longer for some than others—but adapt we must. One of the keys to such adjustment is to realise that the state and its ancillary authorities cannot do everything; they are restricted by limited resources and must, like the rest of us, live within their means. Where people and communities can do things for themselves, they must be encouraged to do so. There seems to me no credible alternative approach in the present circumstances.

My Lords, I, too, offer my best wishes to the noble and learned Lord, Lord Wallace. He has a remarkable record. He has served in not one but two coalition Governments, which is pretty good going. He and I go back a long way. In the 1980s, as young Back-Benchers—not so young in my case, but he was young—we spent some time trying to make Ministers’ lives more uncomfortable on various energy Bills. I welcome him. It is not our job to make his life more uncomfortable than necessary during his service to this House and to Welsh affairs.

Like other noble Lords, I believe that the role of this House in scrutinising LCOs is to consider the drafting and the process and to ensure, above all, clarity of competence, but not necessarily to pick at the policies, as the noble Lord, Lord Roberts of Conwy, has done. That is not our fundamental function, because those are the functions of elected Members; it is they who make the decisions and come to the conclusions that they do about whether we should adopt this or that policy. I have never adopted the view that we should take a strong political view, whether one feels strongly for or against an order politically. It is the duty of this House to respond on the process and clarity of competence. As the noble and learned Lord, Lord Wallace, reminded us, he and I served on the Constitution Committee, which began the task of scrutinising these LCOs when they first came into being.

There was an issue of clarity of competence on the right to buy. I was interested in the Minister’s reply to my brief intervention that the competence still stands. Paragraph 7.23 states that the order will give the Assembly the competence,

“to replace the current Right to Buy scheme with improved and updated schemes to assist home ownership”.

That is incorporated in this order; it has not been removed. I happen to support the policy, but I wonder whether the noble and learned Lord and I in our early Back-Bench days would have been as generous about this proposal as we plan to be today. We are saying to the Government that we can give the Assembly the power because it has told us that it is not going to use it. If I was a Minister proposing such a proposition, I would imagine a fair degree of criticism of such a position. However, that is the position that we have arrived at, with the Minister saying that the Government have had assurances that the power is not going to be used—although he admitted that that cannot bind future Governments in the Welsh Assembly. Nevertheless, we are going to let the power go through because it is not going to be used. I confess that that is normally an appealing case to Back-Benchers, wherever they stand on an issue. I look forward to a further defence of that position when the Minister comes to reply.

Before I come to the rest of what I want to say, let me make an aside. As the noble Lord, Lord Roberts of Conwy, said, there have been some 140,000 sales of council property. My constituency days are now more than 10 years ago, but I cannot remember towards the end of my period in the mid-1990s many right to buys being exercised in Merthyr and Rhymney. The first great swathe of purchases took place in the mid-1980s. I am interested to find out how much of a pressure there is. Can the Minister give us figures on how many sales took place last year under the right to buy? I fear and suspect that by far the largest portion of that 140,000 was purchased in the first decade. I wonder how much of an issue it is. Because I no longer have a constituency to serve, I accept that I may not have a feel for whether the pressures are still there and in what form and degree. Perhaps we could have some figures on recent purchases that have taken place—for the last 12 months, for example.

I do not want to quibble with the policy because I have full sympathy with the burden of the case made for this LCO, but I want to put this into an LCO context. I suppose that I belong to a small band of people—there are not many of us—who are fans of LCOs. I happen to be a fan because they arose out of the deliberations of the Richard commission, on which I had the privilege to serve. Wherever one stood on the issue of the full transfer of powers, LCOs were seen as an interim measure that would enable the Assembly to expand legislative competence. Therefore, I have been a great defender of the process and I continue to be one.

Before I sit down, I shall suggest to the Minister that, between now and the referendum, we should assess what has happened and the extent to which legislative competence has been transferred. For example, seven new matters are to be put into Schedule 5 as a result of this one order. When one looks at the informative Explanatory Memorandum and the appendix to it, which shows the other amendments that have been made to Schedule 5 to the Government of Wales Act, one can tot up more than 60 matters that have been included in the schedule since the passing of the Act, as a result of these orders and of framework powers in legislation. I contend that that is a significant and meaningful transfer of legislative competence from Westminster to the Assembly.

Despite the tendency to malign these orders, they have served a legislative purpose, which I am willing to defend wholeheartedly, as a means by which the Assembly has been given competence to legislate. Perhaps in reply the Minister could bring us up to date on how many LCOs there have been. I used to keep count, but an election and a couple of other things have interrupted my arithmetic. I thought that there were a dozen or 15 before, but perhaps he could give us an update on the number of LCOs that have passed through this House. I do not believe that either this or the other place has created a logjam for transferring legislative competence to the Assembly. These orders have gone through.

To date, how many measures in the Assembly have flowed from these orders? Have we been holding up the Assembly in its legislative activity? The last time I took stock, only a third of the LCOs had led to measures. Again, that would be useful informative background to the debates that will take place in the months to come on the transfer of power under Part 4 of the 1998 Act through a referendum. I would like an assessment of where we stand. How many measures have flowed from the orders that we passed in this place and the other place as a result of the 1998 Act?

My other question relating to the informed debate that we should have on these issues in the run-up to the referendum is: what, in total, will be left to transfer under Part 4 in the main areas of policy? Let us take housing, health and education. Paragraph 4.2 of the Explanatory Memorandum says:

“The Welsh Ministers already have devolved to them significant executive powers and secondary legislative powers across a wide range of legislation relating to housing”.

That has already happened. It lists 10 Acts that are involved. In the area of housing, health and education, how much legislative competence has already been transferred within the total responsibility of the Welsh Assembly Government? I have the impression that we have now substantially transferred a considerable degree of competence to legislate in these three key areas. This order is very much an addition to that list.

Finally, I seek clarification from the Minister on the exceptions. As he will know, when we have scrutinised other orders, exceptions have been attached to the order to show that the writ will not run in certain respects. In this case, the exceptions are of a general kind. Provisions relating to housing benefit and to council tax benefit are exempt or excluded from the power to legislate within the Assembly. In the wake, possibly, of a successful referendum, so that Part 4 comes into play, what will happen to these exceptions? Will they remain or will they be swept aside by Part 4? In other words, under Part 4, will the whole area of council tax and housing benefits be transferred legislatively to the Assembly, so that the Assembly can change the character of such benefits? Until now, we have maintained a degree of conformity and uniformity across England and Wales in social security benefits, particularly those for council tax and housing. I should like to see how this will unfold during the debates that we will have in the coming months.

I support the order, just as I have supported, with occasional queries and questions, the orders that preceded it. Once or twice, the Constitution Committee has raised serious issues about drafting. I hope that we can be confident that Assembly consideration of this kind of legislation after a successful referendum will be as vigilant as, I believe, that of both Houses and the Welsh Affairs Select Committee has been in helping us to scrutinise LCOs, which have been an important development in Welsh legislative history.

I am grateful to the noble Lord, Lord Rowlands, for jumping to the pulpit ahead of me. Perhaps I may suggest a sermon. I look to the Epistle to the Hebrews, in which we hear about a race that is run quite slowly sometimes. This race has been run slowly: it has taken a long time to get the orders. I am told that for education 18 new powers have been transferred to the Assembly but that there has been only one new power for housing. I am told that most of them do not come from legislative competence orders but that 60 per cent of them come from Bills.

Speaking of the sermon, I feel that I am surrounded by a mighty cloud of witnesses, of people from various departments—for example, the Department for Health, the Home Office, the Welsh Office and others—who have worked at this over many years, which I appreciate. I know them and I call them my good friends, on whichever side of the House they may sit. They have battled away on the Welsh scene over many years.

It is a privilege to have two of my own party colleagues on either side of me. My noble and learned friend Lord Wallace has led in the Scottish Parliament and my noble friend Lord German has been the Deputy in the Assembly in Cardiff. I am lost in this place today. Since 1931, my Liberal colleagues have sat on opposition Benches. Suddenly, we are transferred to the government Benches. We are just settling in. It makes such a difference and it gives us the opportunity to stir things up as regards some of these legislative competence orders.

The hope is—I am sure that this is general to all parties—that in the spring the referendum on additional powers for the Assembly in Wales will result in a yes vote throughout Wales. I think that we have to do it. For one thing, it will save a lot of time and money on these orders coming here and we will be able to devote our time to other issues that possibly deserve more time than they get at present.

Two tests should be applied to this order, as to any other order, according to the Government of Wales Act 2006. The issues to be passed to the National Assembly must correspond to the executive functions of the Welsh Assembly Government—we are not able to introduce anything else—and must relate solely to Wales. Scotland led the way in the settlement that was reached. We have been saying, “If only we had the same powers as Scotland”. We are moving on this issue, but, as I say, the rate is slower in Wales. However, it will speed up after the spring. In Scotland, people knew which powers they had and which powers they did not have. In Wales, we have just kept on asking, “Please can you include such a power and such a responsibility?”. I am sure that this is not the correct way to say it, but we have been opting in, whereas Scotland knows which powers it does not have at present.

This housing order is important. It is a part of devolution in Wales. It gives us the authority to deal with housing matters in Wales. It has been mentioned that we could look at the sale of council houses or social houses. Like many other places, Wales has the problem that the situation differs from county to county, even from parish to parish. In some areas, the housing situation is so grave that it might be necessary—possibly not—to look again at the reasonableness of selling council houses. That could well be a necessity, particularly given the present crisis in which some people are losing their homes. If it gets to that desperate state, we in Wales will have the authority to say, “For the time being let us look at this area and this need”.

The order will add substantially to the powers in Wales. The Assembly Government must decide how they will use those powers. That is what government is about and what devolution is about. It is not that we keep on saying, “Don’t do this, don’t do that”. However, we have the authority in health, education, public transport and now housing to decide our own agenda. It must be within the Assembly’s competence. This order marks a significant move in the development of the Assembly’s powers. Therefore, we on these Benches wish it well. We wish the Assembly Members who will exercise this discretion all the wisdom and all the powers that they need to meet the needs of people in different parts of Wales.

My Lords, I will detain the Grand Committee for only a very few moments. I, too, join everybody else in congratulating the Minister on his first foray into Welsh affairs in this Committee. I wish him every happiness and every success for the future. I agree very much with the precept that was articulated by the noble Lord, Lord Rowlands. We are not here to consider the basic merits of these devolved matters; we are here to say whether the procedures of devolution set out so clearly in Part 3 of the 2006 Act are properly adhered to. I say that because, like more than one Member of this Committee, I have heard it argued here over the past two or three years that there seems to be some onus of proof on whoever seeks to justify a measure of this nature to show that it has a fundamental benefit for the people of Wales. That is not what devolution is about. If we were to apply such a test, we would be going contrary to the principles set out in the 2006 Act in Parts 3 and 4.

I wholeheartedly support the measures. Indeed, having said that we should not consider them, I would say that they have every merit. In this respect, if ever there was a devolvable issue in relation to Welsh matters it must be in relation to housing or local government. We are dealing with a situation in which there are so many distinctive Welsh nuances that it cries out for devolution. The executive devolution took place a long time ago, soon after 1964, when the Welsh Office was set up. It is only right and proper that there should be primary legislative devolution to attach itself to that.

I take the point made by more than one Member of the Committee that nothing that we do here on these LCOs creates one word of legislation. All that we do is give a passport for legislation to take place in another place. We peg out an area and say to the Welsh Assembly that, now that it has asked for it, within that defined area it can build a legislative edifice. I am not sure how many Measures have come directly from LCOs; I suspect that it is about a dozen, with about half a dozen from other sources.

I have only one other thing to add. I thank whoever was responsible for the Explanatory Memorandum. It is one of the very best that I have read in relation to any legislation, but particularly in relation to these matters.

My Lords, I support this order and wish the Wales Assembly well when it receives, operates and exploits it. Housing is the basic provision for any family life and I have no doubt that the Wales Assembly will always bear that in mind. The sum total of happiness will be advanced somewhat by the fact that these powers are coming nearer home for the people of Wales. The order will be operated by an Assembly that really believes in it.

I was glad to hear the noble Lord, Lord Roberts of Llandudno, make his speech. He will not mind my saying that it was a Methodist speech, perhaps in more than three parts just slightly so. I always listen with great interest to the noble Lord, Lord Roberts of Conwy. Nobody has served Wales longer than he has or with more dedication. He has great experience, which one hears in his observations on a matter such as this. I congratulate the noble and learned Lord the Minister on his appointment to his office. I saw his entry to the other place, I saw him leave it and I have seen him come back. He has made a strong beginning. I also offer most sincere congratulations to my noble friend on the Front Bench. Nobody knows Wales better than she. She knows Wales like the back of her hand and has served it with great compassion, conscientiousness and commitment. We will all wish her well on the Front Bench in her duties.

After the last general election in Wales, I took the trouble to go to the opening of the Wales Assembly by our sovereign Her Majesty the Queen. She was accompanied by the Consort, the Duke, and by the heir, the Prince of Wales—and he by the Duchess of Cornwall. Having been present in the Chamber looking down on the Royal Family, facing the Government of Wales and the Assembly, I thought that I was seeing some history. The conclusion that I draw from that moment is that the Welsh Assembly is for ever. It is an Assembly of stability and great potential. In any consideration of the order, one has the understanding of where it is going and how it will be best used to the advantage of the people of Wales.

It occurred to me that, having been present at that historic moment for the nation of Wales, I could not see how there would not be more legislative powers in time. I could see the status of the Assembly growing by the year. I could see its importance always advancing and it having more authority and power to raise more moneys, with its standing always growing. I saw the process as irreversible, but I asked myself, “Did the Assembly need to have more Members?”. I then asked myself, “Would this Parliament have fewer Members?”. I do not wish to debate that issue now—nor should I—but I suspect that our nation, Wales, is on track and that the British nation will see something approaching federalism in the decades ahead, whether that should be or not.

None of us, I suggest to the Committee, should be in ignorance of the consequences of what we are doing when we pass these orders for Wales. There is a consequence over and above the use of the order. I sometimes wonder whether Parliaments fully comprehend the consequences of the legislation that they make.

My Lords, this has been a positive and constructive debate. I start by thanking all the noble Lords and the noble Baroness for their kind words of welcome and congratulation. I consider it a privilege to be able to engage with noble Lords and, indeed, to re-establish some friendships and acquaintances from my time in the other place, particularly with the noble Lord, Lord Rowlands. Exactly 27 years ago this week—I am an anorak in this sort of thing—I served along with the noble Lord on my first Standing Committee in another place, which was considering the Petroleum Royalties (Relief) Bill. It certainly means a lot to me to be here and to engage with him again.

The noble Baroness, Lady Gale, suggested that I would, over time, get to realise that Welsh politics is different from Scottish politics. The learning curve has been very steep indeed but I had already appreciated that, although I am sure that there is still much more to learn. In fact, with the happy situation of belonging to a federal party along with my noble friends here, we have learnt from one another over a number of years how the body politic functions in different parts of our United Kingdom. I join the noble Lord, Lord Jones, in congratulating the noble Baroness on assuming Front-Bench duties. I rather suspect that there will be a number of occasions when we will be facing each other across the Dispatch Box, either in Grand Committee or in the Chamber, and I very much look forward to those encounters.

I welcome the fact that there has been broad agreement and support for the order. Perhaps I might respond to a number of the points raised. First, the noble Baroness, Lady Gale, made a point about the timing of the laying of the order. She asked why my honourable friend the Parliamentary Under-Secretary had apparently changed his position. We could always go into forensic detail about what happened when in the weeks of February and March. My understanding is that the order could have been laid before Parliament before the wash-up. It does not necessarily help us today to speculate on why that did not happen. The point is that, after a bit of a troubled history when another order fell foul of the Joint Committee on Statutory Instruments, we have an order today that has commanded support.

On the press comments in the Western Mail and the press release issued by the Wales Office, the statement in the press release made clear why there was an apparent change in position. Indeed, my honourable friend David Jones indicated to the Committee in the other place that he had had discussions with Jocelyn Davies and that there had been an agreement to excise the provisions relating to the right to buy from the order—let us recall that that was the position of the Welsh Affairs Committee in 2008. However, it was then discovered that, to make that change, with all the procedures that would go with it, it would not be possible to get the order through before the Summer Recess, as we wish to do in order to give the Welsh National Assembly an opportunity to pass legislation, if it wishes to take advantage of the order, before the election in 2011. This is an example of the Welsh National Government and this Government being able to discuss these things in a mature way and to come forward with the right solution. I hope that we will be able to take that forward by consenting to this order when it is put to the whole House.

The noble Baroness mentioned the importance of the Essex report, which I understand has been an important part of the thinking in the development of the strategy that the Government in Wales produced earlier this year. We hope that we can facilitate its implementation by passing this legislative consent order.

My noble friend Lord Roberts of Conwy emphasised the importance of the right to buy. There have been 140,000 sales. The noble Lord, Lord Rowlands, asked about the experience over time of the right to buy. It has applied to over 46 per cent of the original stock since it was introduced in 1980. The numbers have declined. In 1997-98, there were 2,716 completed sales—I am picking out dates for the key peaks and troughs. In 2003-04, there were 6,811 sales. In 2007-08, there were 819 sales. In 2008-09, there were 157 sales. The number has fluctuated over time but, over the last two years for which I have figures, it has apparently gone down. The position of the Welsh Assembly Government is that they wish to use the powers temporarily to suspend the right to buy in areas where there is housing pressure.

My noble friend made the point that, if devolution means anything, it goes further than just an Assembly. One of the assurances that we sought was that, with regard to Gypsy and Traveller sites, a specific site would not be imposed on a particular community. We are grateful for that assurance.

A number of noble Lords made the more general point that, if you are going to devolve, there is no point in second-guessing the policy that will be used. We are here to exercise our statutory function under the Government of Wales Act to assess the devolution of powers under this order. It must then be a matter for the Members who are properly democratically elected to the Welsh National Assembly to determine how they will use their powers. That is the proper way in which devolution moves forward. The noble Lord, Lord Jones, said that we should be very clear in understanding what we are doing in this. He mentioned the word “federalism”. That might get my noble friends Lord German and Lord Roberts of Llandudno and me excited, but I shall resist the temptation at the moment. There may be opportunities in the future to discuss that.

The noble Lord, Lord Rowlands, asked a number of important detailed questions. I have already indicated the figures with regard to the right to buy. I shall answer some of his other points as best I can. More than 70 areas have been devolved to the Assembly to date. I am informed that there have been 14 LCOs to date and that, in addition, framework powers have been devolved in other Bills. I do not have a figure for the number of subsequent exercises of that power by the Welsh National Assembly, but if I can get that information I shall write to the noble Lord and inform him. He also asked what was left to devolve. The answer is, of course, a great deal. Even just in the area of housing, this order does not cover housing finance or the private rented sector, on which the noble Lord, Lord Touhig, last week made a distinguished maiden speech, dealing with many issues. The order does not deal with specific issues such as park homes. These are matters that will be the substance and meat of the debate that takes place leading up to the forthcoming referendum, when the people of Wales will have a choice about how they take forward the possibilities of further devolution. As I said earlier in the Chamber, that is a matter for the people of Wales; ultimately, it is for them to decide.

The noble Lord, Lord Rowlands, asked why the Government did not take out the abolition. I hope that I have answered that already in response to the noble Baroness, Lady Gale. The most important thing to us was to get this order through and to allow the Welsh Assembly to determine how it wishes to exercise these powers. The noble Lord, Lord Elystan-Morgan, used the eloquent phrase “passport for legislation”. That is very much what we are doing today; we are being asked to agree a passport for legislation. He said that the correct thing was for us to consider whether it was appropriate for legislative competence to be transferred and devolved. In a nutshell, that is what we are being asked. It is certainly the belief of the coalition Government that the answer to that should be, “Yes, it is appropriate”. I commend the order to the Committee and hope that we all agree that it is appropriate.

Motion agreed.


Question for Short Debate

Tabled By

My Lords, I put my name down for this debate on prisons soon after the general election, which was of course before Ken Clarke, the Justice Secretary, made a speech that in some ways has stolen my thunder. I remind noble Lords of what he said, quoting a little from his speech. He said that,

“we spend vast amounts of public money on a growing prison estate and ever more prisoners”.

He went to say:

“I am sure that prison is the necessary punishment for many serious offenders. But does ever more prison for ever more offenders always produce better results for the public? Can we carry this argument on ad infinitum? I doubt it … I believe in intelligent sentencing, seeking to give better value for money and the effective protection that people want”.

None of us could dissent from that. It depends how far the Government can go to take these policies further.

In preparing for the debate, I soon realised that one hour was far too short and that in any case we should not consider prisons in isolation but as part of a wider look at the criminal justice system. I am not advocating being soft on criminals; some must clearly be jailed. But I remind noble Lords that in 1992 to 1993, the prison population was 44,628. The most recent figures this month were 85,097. That is an enormous increase. When I was in the other place seven years before, the prison population showed signs of reaching 44,000 and we felt that the world was coming to an end—it was that serious. Our prisons are grotesquely overcrowded. The question is why Britain has the highest prison population in relation to population in western Europe. I do not believe that we are more criminal; the crime rate is going down and went down in the period of the last Government very significantly, but I do not believe that that is due to an increase in prison population. Other countries have shown drops in rate of crime but their prison population has not gone up.

Two years ago, I was part of a group that launched the Prison Policy Group with Members from all parties and both Houses. We were glad to have as a member the noble Lord, Lord Hurd, a former Conservative Home Secretary, who followed a very similar policy to that being proposed by Kenneth Clarke. Our report, Building More Prisons? Or is There a Better Way? states:

“The recommendations of the Carter report on the use of custody, that the Government should invest in another 10,500 prison places to give a total of 96,000 places by 2014, was taken without consideration of any alternative policies. The cost implications of this policy are substantial, £2.3 billion capital and commensurate revenue costs for the foreseeable future. No evidence is available to suggest that increasing the number of prison places to accommodate a population of 96,000 will make England and Wales a safer place”.

We subsequently hosted a number of meetings at which distinguished people from other countries came and explained how they managed to run a safe country with a much lower use of imprisonment than ours and support from the public for such a policy. These meetings were very informative and we kept asking ourselves how it was that Germany, France, Canada—countries not so different from our own—managed with lower crime imprisonment rates and did not increase their prison populations year by year.

It is estimated that 10 per cent or more of the prison population has a serious mental illness. Although prisoner health has improved over the years, most of them receive inadequate treatment. Prison is not the right place for mentally ill people. They should be treated outside prison, possibly in a custodial sense in mental illness facilities, but certainly it is not much good having them in prison—they get out and they reoffend.

Clearly, the incidence of drug taking in our prisons is very high, as is the incidence of drug taking among people sentenced to prison. However, the rehabilitation facilities for drug addicts are not very good in our prisons. They are often not very good when they get out either. Those people should not necessarily be in prison but in places where they can get proper rehabilitation for their condition. Some time ago, the noble Baroness, Lady Corston, produced a report on women in prison. Again, it is fairly clear that we do not need to have so many women in prison. Many of them are not dangerous or a threat to society and could be better dealt with by punishment in the community.

The number of young offenders is very disturbing. They learn some of the arts of criminality when they are detained. We need to look again at whether all these young offenders need to be detained at all or whether there are not alternative ways of dealing with them. A disturbing number of members of the Armed Forces get on the wrong side of the criminal law when they leave the forces. We need to look at the help and support that they receive when they leave the forces and enter civilian life. It is not an easy transition for them, particularly if they have served in Afghanistan. They need more support and counselling to help ease their path to civilian life.

We would save money if we could transfer foreign national prisoners to the countries from whence they came. I appreciate that these arrangements are covered by treaties, but I doubt that they are all covered by treaties. We need to look at that matter. Helping people in these groups may not lead directly to cost savings. However, there would be a saving in the longer term if we could reduce reoffending rates. I believe that dealing with these groups in the way I have suggested would result in reoffending rates going down.

Some time ago I was talking to a police officer in London who said that he had arrested a young man who had attacked an elderly woman and rendered her unconscious—something for which he would almost certainly go to Feltham. The police officer told me that he went to the young man’s home. His mother was spaced out on drugs and the flat was in a disgraceful condition with dog faeces all over the place. The police officer said to me, “If that young man goes to Feltham, when he comes out he will go back to the same environment and with no help he will revert to his criminal ways”. Surely we have to tackle this at source.

Therefore, I was delighted to read the report by the House of Commons Justice Committee, which came out last December, Cutting crime: the case for justice reinvestment. That is the theme of what I have to say now. It was an important report with sensible recommendations. I shall quote briefly from one of the findings in the summary:

“a large proportion of the resources necessary to tackle conditions known to contribute to criminality—such as social exclusion, low educational engagement and attainment, drug, alcohol and mental health problems, unemployment and lack of housing—are outside the criminal justice system. Additionally, in many cases the relevant services are provided at a local level, whether by local authorities or third sector, voluntary or community organisations. Similarly, much of the support available for the rehabilitation and resettlement of former offenders is in the gift of such local agencies. In contrast, the costs of custody are borne at a national level from a centralised budget. The overall system seems to treat prison as a ‘free commodity’—even if not acknowledged as such—while other interventions, for example by local authorities and health trusts with their obligations to deal with problem communities, families and individuals, are subject to budgetary constraints and may not be available as an option for the courts to deploy”.

I could not say it better than that. That surely has to be the way in which the Government should move forward if they are to give effect to what the Justice Secretary said.

The Select Committee report stated that the aim should be,

“committing to a significant reduction of the prison population by 2015—especially concentrating on women and those whose criminality is driven by mental illness and/or addictions to drugs or alcohol”,

I have one or two brief questions about the prison-building programme. What will happen to what is being talked about in Liverpool and London? Do the Government intend to continue with the previous Government’s prison-building programme? Is it true that the Government are considering selling off inner-city prisons near to where people live and are reverting to the ideas they opposed in opposition to build Titan prisons on available land away from towns and cities? Can the Minister deny that?

Finally, I shall say a brief word about public opinion. It is important, in changing our prison and criminal justice system, to make local people feel involved and to promote confidence in community sentences.

My Lords, I congratulate and thank the noble Lord, Lord Dubs, on asking this timely Question between the Secretary of State for Justice's landmark speech of 30 June and the promised Green Paper containing the coalition Government's answer. I welcome the content and spirit of what Ken Clarke said about prisons being places of punishment, education, hard work and change, but how can we effect change in an overcrowded system with a woeful record of failing to protect the public by preventing re-offending, which I understand to be the aim of the criminal justice system of which prisons are a part?

As they look around the prison system, I am sure that the Secretary of State and his Ministers will quickly realise what a priceless asset they have in the many marvellous people who are all motivated to do what is asked of them to the best of their ability. This confirms that at the heart of the problem, and therefore of its solution, are people: prisoners and those who work with and for them. Change means enabling workers to do more with and for prisoners.

This is a song that I have been singing since my first prison inspection in 1995, when I identified some reasons for failure that remain unaltered to this day. I shall briefly outline some of them. First, we need one aim to unite the work of the prison and probation services in their responsibilities for administering sentences awarded by the courts. I suggest that this should be: “To help those committed by the courts to live useful and law-abiding lives”, in line with the 1983 Prison Service statement of purpose and the original “advise, assist and befriend” of the probation service; for prisons must be added the words “in prison and on release”, with the qualifications that prisoners must be treated with humanity and not be allowed to escape.

United by that “doing” purpose, both services should carry out three sequential tasks. First, they should assess what has prevented the individual from living a useful and law-abiding life thus far. Secondly, that should be turned into a programme designed to challenge the reasons, prioritised by severity of symptom and time available. Thirdly, transition and/or aftercare should be arranged; that is, prison to probation, and prison and probation to the community.

To enable helpers to perform more effectively, two organisational changes should at last be made, not least in the interests of saving money. First, prisons should be grouped into regional clusters, as recommended in the White Paper, Custody, Care and Justice, which Ken Clarke will remember from his time as Home Secretary. Regions, including their voluntary and private sector organisations, can then own responsibility for the rehabilitation of their own offenders.

Secondly, in line with the very successful appointment of a director of high security prisons in 1995, bringing a unique consistency to their performance, responsible and accountable directors should be appointed for every other type of prison and prisoner. At last, this will enable good practice somewhere to be turned into common practice everywhere. Finally, in terms of change, I hope that there will be a ruthless pruning of all unnecessary bureaucracy. What is needed to make a national offender management system work efficiently is a structure that enables and supports face-to-face working with offenders—nothing more, nothing less.

There is much more that I could add, but, on the basis of what I saw first hand over five and a half years, and have seen second hand for a further nine, without such structural change, I fear that the hope that Ken Clarke has engendered will be extinguished by a dysfunctional system that has failed the public for too long.

I endorse everything that the two noble Lords who have spoken have said. I will not repeat the statistics given by the noble Lord, Lord Dubs. In his recent speech, the Secretary of State spoke of the situation as impossible and ridiculous from his perspective as Home Secretary in the early 1990s. It is good to know that the Government are wishing seriously to address the situation, which on their own admission they regard as impossible and ridiculous, in the growth of the prison population.

In his recent speech, the Secretary of State asked how this has come about, but he did not really offer an answer, apart from an assumption that foolish policies have progressively flowed into a sort of mission creep, as reflected in the ever-increasing prison population. No doubt many factors have been at work, but let me offer an underlying cause. Since 1979, we have had what might be called the progressive Americanisation of our society, a process which has brought many benefits. Individual freedom has been encouraged particularly, but not only, in the economic sphere. Things changed somewhat under new Labour, especially in relation to levels of public spending, but the underlying ideology of economic and personal freedom remained largely intact. There have been many benefits from this political philosophy, but the difficulty in basing a society too much upon economic and personal freedom is that it tends to produce exaggerated winners and losers. Over time, the losers easily accumulate into a growing underclass where low-level or medium-level crime is endemic and where criminal gangs can flourish. That outcome has for a long time been very evident in America where the prison population dwarfs our recently inflated levels. We are now beginning to see this in the UK with prisons—full of relatively minor offenders and repeat offenders—too easily becoming academies of crime. The figures for inmates with drug problems are another illustration.

The way forward must be to address the subculture of crime associated with the growing emergence of an underclass. In the longer debate on Thursday, two of my episcopal colleagues will say more on the subject of restorative justice and the role that it should play. However, let me make one broad point in this short debate. Many of those in the crime-ridden underclass have a very low sense of dignity and self-worth. Many come from broken homes and abusive childhoods. That comes home very strongly when you talk to people who are in prison, as I have frequently done. The solution—or part of it—must include a proper recognition of the innate dignity of every human being including, and in some sense especially, those whom society chooses to imprison. On my visits to prisons, I have often felt that the prisoners, for all that they were there to be punished, were not always treated with the dignity that they nevertheless deserved. The refusal to give them the vote is an illustration of that. In my time as a bishop, I have been in a young offenders’ institute where the staff regularly swore at the young people who were imprisoned there. That seemed to be something that the whole system just accepted as a normal feature of prison life, and the governor hardly seemed to be aware of it. I choose that as an example.

Recognising and upholding the dignity of every human being, even when they are being punished by society, is a real mark of civilisation. We are more generally lawless today in some respects; the danger is allowing those whom we imprison to become scapegoats for the rest of society. That cannot be part of the solution. Whatever we do, we have to uphold the dignity of those we choose to imprison.

My Lords, I suspect that I may be a lone voice in this place today, but it would not be a debate without listening to both sides. I was the president of the Police Superintendents' Association when the then Home Secretary, Michael Howard, said quite powerfully that “prison works”. He was, of course, right—but he was also wrong. He was right in the sense that if you incarcerate someone for committing a crime, that clearly prevents them from continuing to commit crime against the public during their period of incarceration. It might also work as a punishment and deter the prisoner from continuing to offend—because, presumably, he did not like the experience. It could also deter others outside from committing crime because they do not wish to suffer the same fate. He was also right proudly to boast that crime fell dramatically during his period of tenure at the Home Office. However, Michael Howard was wrong, as noble Lords have expressed well this afternoon, in the sense that experience tells us that large numbers of people who are imprisoned return to crime when they are released from prison.

Where we are failing is in the rehabilitation of prisoners while they are locked up. This requires resources and costs a lot of money. I have talked to many criminals in my 35 years of policing, probably more than many others in this House, and of one thing I am certain—they do not like going to prison. On the other hand, they are all volunteers. We are not in prison; they are in prison. It is the old choice they have: if they commit the crime then, of course, they do the time. But it is not a pleasant experience, as I am sure we all appreciate. Any imprisonment is an unpleasant experience. I think that we could make it more unpleasant by clamping down on the use of things like drugs in prisons and the use of mobile phones to plan and perhaps prepare to commit crime when prisoners come out—particularly for the professional criminal. Those things are tolerated to keep the lid on law and order within prisons.

The first duty of any state is to protect its citizens, both from without and within. That is why I was somewhat surprised and shocked when I heard the Lord Chancellor, the right honourable Kenneth Clarke, pronounce that he was not in favour of short prison sentences. I agree that a short sentence does not allow training and rehabilitation, but it sends a very powerful signal to a recidivist bully or anti-social lout that his—and it usually is a him—behaviour and response to the courts will not be tolerated. I have often heard it said that it is not the prison sentence that deters but the fear of being caught. Again, I do not accept that. In the area that I policed, in the north-east of England, crime was rampant in the early 1990s. We arrested, time after time, the same offenders, took them to court and they were released time after time on bail and continued to offend. Arresting them did not seem to have a great effect. If anything was proof that fear of being caught without a proper sentence was not a deterrent, that was it. The public got fed up with anti-social behaviour in the late 1990s, which was why the anti-social behaviour order was brought in. That results in imprisonment only if all the conditions of the order are continually broken.

The public are fed up to the back teeth with what they see as soft options for people who ruin the lives of victims. The nub of it is that generally such behaviour does not touch the lives of Members of this place, but it hits people on housing estates and people in deprived communities, who are trying to eke out an honest living for themselves and their families. We owe it to them to use prison in a sensible way, as a final deterrent for those who refuse to comply. We need to use prison and to change the rules for those who do not know any rules.

My Lords, I, too, am very grateful to the noble Lord, Lord Dubs, for arranging this debate. I declare an interest as an honorary research fellow at the International Centre for Prison Studies at King’s College, London. I, too, welcome the recent statement by the Secretary of State for Justice about a new start in penal policy. I noted the view that emerged from his speech about the value of looking at evidence, and evidence will be the subject of my brief remarks this afternoon.

In his recent speech, the Secretary of State for Justice noted the difference in prison population between what it is today and what it was when he was last in that position. He may also have noted that when he was last responsible for prisons, there was in his department a high-level research unit, the Home Office Research Unit, which was the envy of the world and whose products were read all around the world. I very much hope that the Government will restart putting such high-level and objective work into the public domain. Research and evidence are a good basis for a new policy. I want to look at three areas where evidence might be helpful, although I entirely accept that, in the end, there are political considerations. However, evidence is a helpful start.

First, it is said by some that crime has gone down but that there are more prisoners, so the first must have been caused by the second. As the noble Lord, Lord Dubs, has said, it is hard to find the evidence to sustain that proposition or to square it, for example, with what happened in New York where, between 1993 and 2001, violent crime decreased by 64 per cent, while the prison population dropped by 25 per cent.

Secondly, we know from a mountain of research, particularly a study carried out by Edinburgh University over many years, studying hundreds of children and young people, that putting children and young teenagers into prison is one of the worst decisions we can make if we are aiming at a safer society. That should only be done in the most extreme circumstances.

Thirdly, I suggest that the Minister asks the researchers at the Ministry of Justice to produce a paper showing what makes people turn away from crime and change their whole way of life. I think that such research would show that it is relationships with people who are not involved in crime, it is having bonds linking them to law-abiding society, and it is helping them to change their image of themselves. A policy based a little more on evidence than on what we have seen in the past 10 years would undoubtedly produce better results and a safer society. Does the Minister have any view on the report in the press this morning that Tim Godwin, the new deputy commissioner of the Metropolitan Police, has called for money to be taken from prisons and to be given to community-based schemes for offenders?

My Lords, I thank the noble Lord, Lord Dubs, for securing and introducing this debate. Like other noble Lords, I greatly welcomed the Justice Secretary’s initiative on prison reform, particularly his speech on 30 June at the Centre for Crime and Justice Studies. As we all know, and as the noble Lord, Lord Dubs, emphasised, the prison population in England and Wales has reached a record level of 85,000. It has almost doubled during the past two decades, and we must be one of the only countries where this has happened. Our prisons are overcrowded; we have the second-highest incarceration rate in western Europe. If I may draw the Committee’s attention to the ethnic minorities, it is striking that they constitute just over a quarter of the prison population while being no more than 9 per cent of the population at large and that nearly 56 per cent of ethnic minority prisoners are black Britons. In fact, more black Britons are in prisons than in universities.

Prison is obviously not the answer, as all the research that I have consulted, with which noble Lords will be familiar, has shown. We have one of the highest crime rates in western Europe although we lock up so many, so obviously there is no correlation between the two. Public fears about safety have not subsided in spite of our locking people up in those large numbers. As the last election showed, it was the third concern after the economy and immigration. The reoffending rate is as high as 50 per cent; in fact, it goes up to 60 per cent when we look at those given short-term sentences.

Prisons are also extremely costly—something like £39,600 per year. As the Justice Secretary pointed out, it costs more to maintain a prisoner than a boy at Eton. Those who do not reoffend suffer from mental ill-health and remain social misfits who cannot hold a job after they come out. So far as ethnic minority prisoners are concerned, they experience a greater amount of racism and victimisation in prison than outside. They come out very bitter and angry and fuel the ranks of those who wish this society ill.

Basically, the prison system does not work. It crashes and keeps recycling the vulnerable, the mentally ill and the failures of our society. This has to stop. There should be more emphasis on rehabilitation and reintegration into the community than has been the case so far. We should also involve charities and the third sector and fund them from the saving that we would make by making sure that people are not locked up. In fact, as the Justice Secretary said, it might be a good idea to think in terms of paying them by results so that for every prisoner who does not reoffend the third sector receives a certain amount of money.

I have always thought that large prisons are a bad idea because they militate against rehabilitation and integration. Small prisons that are close to the community, like we used to have in older days, make it easier to establish familial contacts and facilitate integration. In this context, it is striking that Canada had a wonderful experiment in the 1990s when it reduced the prison population by 11 per cent. In within seven to eight years, the crime rate fell by 23 per cent in cases of robbery and assault and by 43 per cent in cases of murder.

I shall end by asking the Minister three very simple questions. First, has any analysis been made of how the cuts in public services and welfare provisions are likely to impact on the rate of crime? Secondly, what is being done—indeed, do the Government have any plans at all—to reduce the ethnic minority population in our prisons and to conduct a study of what prison has done to them when they come out? Finally, and this was part of the Lib Dem manifesto and is something which I subscribe to, is it the Government’s policy that there will always be a presumption against short jail sentences?

My Lords, I declare my interest as president of the National Association for the Care and Resettlement of Offenders. I welcome this debate, particularly the contribution by the noble Lord, Lord Dubs. It qualifies him to join the coalition. At a time of swingeing cost reductions when every item of public expenditure is to be scrutinised carefully for cost-effectiveness, we must question the benefits of the prison expansion strategy, particularly as the annual cost of keeping someone in prison is now £45,000. This means asking some fundamental questions. Why do we need to build so many prisons? What is the purpose of prison and who should go there? When offenders are jailed, what should be done to rehabilitate them?

The prison system is seriously overcrowded. Seventy-eight out of 137 jails are holding more prisoners than they were built for, and 20,400 prisoners—a quarter of the prison population—are held in overcrowded cells. The results of all this are inhumane conditions and the risk of self-harm and suicide. It makes it harder to provide rehabilitation programmes, thereby increasing reoffending on release. Prisoners are moved part-way through education or rehabilitation courses, and many are held in prisons far away from their home areas, making it hard for relatives to visit and increasing the risk of family break-up.

So is it vital to end prison overcrowding? Is a strategy of prison expansion the right way to do this? If past experience is any guide, the strategy seems doomed to failure. The present process is like trying to run down an escalator which is moving ever more rapidly upwards, and the prison expansion strategy has absorbed ever-increasing resources which could otherwise be spent on prisoner resettlement, alternatives to custody, crime prevention and victim support, precisely what the coalition is asking for.

Most of the offenders jailed in this country receive short sentences. I shall give the noble Lord, Lord Mackenzie, an example. They spend no more than six months in custody. These short sentences are absolutely pointless because they make no point whatever. They are far too short for sustained rehabilitation programmes but are long enough for offenders to lose their homes and jobs, which makes them more likely to reoffend. Two-thirds of short-term prisoners are reconvicted within two years of release. We need a strategy to reduce the prison population to levels more comparable to our European neighbours. When we examine legislation, prisons should be removed as an option for low-level, non-violent crimes. Courts should be prohibited from using prison, except for dangerous offenders, unless they have first tried an intensive community supervision programme. Health authorities should be compelled to devote adequate resources to diverting mentally disordered offenders away from prisons. The number of people jailed for breach of licences should be reduced by a wider use of other penalties for breach before resorting to custody. Strong measures should be taken to tackle the disproportionate use of imprisonment for offenders from racial minorities.

The most commonly advanced purposes of sentencing are punishment, containment, deterrence and rehabilitation. Society has the right to punish offenders in order to protect the weak from victimisation, but punishment does not have to mean imprisonment. Many community supervision programmes are intensive and rigorous, make real demands on offenders and significantly restrict their liberty. Deterrence is, quite frankly, overrated. Those offenders who plan their offences plan not to get caught. They believe that they can avoid detection. Many other offenders commit their offences thoughtlessly or impulsively and, for them, rational considerations of deterrence hardly come into it.

Research has shown that the highest reoffending rates result from punitive approaches, such as the boot camps in America. The lowest reconviction rates result from regimes which work to change offenders' attitudes and behaviour. We should be aiming to provide practical help for prisoners: accommodation and drug rehabilitation programmes interact with each other because it is easier to hold down a job or sustain a drug rehabilitation attempt. We should regard the size of our prison population as a national disgrace. Instead of a prison expansion strategy, we need a strategy centred on reducing the unnecessary use of prison.

My Lords, I declare an interest as I have a close association with a charity called Safe Ground, which works in prisons and addresses the third point raised by the noble Baroness, Lady Stern. May I say how much I agree with her about how effective it is and how difficult it has been to get funding and attention from a Prison Service obsessed with targets and tick-boxes? I hope that that will not be a characteristic of the Prison Service of the future. I greeted Ken Clarke’s announcement with total delight. I have waited 15 years, which is most of my time in this House, for a Home Secretary about whom I can say that—and at last I have one. If we can get the people out of prison who should not be there—principally, to my mind, those with drug and mental health problems—and treat them properly elsewhere, we would make the space in prisons for prison to work properly and do what it should be doing to rehabilitate the people who are in there.

There is no time to put what I am going to say in context, I shall just fire off words of advice at the Minister and hope that he takes them. First, he should not abolish NOMS but allow it to evolve. When you make big reconstructions in places such as the NHS and schools it takes a couple of years for the system to stabilise, for everyone to know what they are doing and for it to become easy to work with again. Prisons just do not have that resilience. There are no populations of qualified professionals such as doctors and head teachers around to bring a system back to normal quickly. It has taken five plus years for NOMS to settle down. It has at last got some degree of stability. Parts of it work very well but there are elements of extreme waste and misallocation, which I am sure this Government will take a knife to. But, for goodness’ sake, allow the structure to evolve rather than shake everything up again, which will make it impossible for other people to work with it. We must also look carefully at this election mantra of payment by results. The only people who can stand that are big commercial organisations. How can little charities, focusing on one part of the problem, ever live under that sort of structure? You will lose an awful lot of good work if you make that the centre of what you are doing.

Secondly, take a lesson from schools and make governors and management teams stay a decent length of time. What would you think of a school which changed its headmaster every 18 months or two years? You would never send a child there, and quite right too. It takes time for a governor to get to grips with a prison. They need to be there five or seven years to make prison somewhere where the governor is the governing influence rather than the bureaucrat in the middle of tick-boxes and targets. You have to learn more from schools than that. You have to support and find ways to involve governors stuck in prisons in outside things, but for goodness’ sake leave them in charge of prisons. The Prison Service could take a lesson from Teach First. Having really high-quality people in a profession makes an enormous difference. You cannot easily take people straight out of university or school into the Prison Service; they need to spend a bit of time in the world first. There has always been a connection with the services and a good flow of people between the services and the Prison Service. There is no reason why that cannot be made into something much more formal whereby we take the best people coming out of the Army, train them up and support them and get a really high-quality cadre into the Prison Service, making it something which people look up to, as they should.

Ministers have set out on a 25-year journey. This is real long-term stuff. The Secretary of State for Justice should be there for the full five years of the Government. The Prisons Minister should be there for the full five years of the Government. If you have rotating Ministers all the time, it is terribly difficult to keep long-term objectives in mind. Your job as Ministers is to take the flak and to stand up there while the Daily Mail throws stuff at you. Things go wrong in prisons. You must have the courage of knowing that you are not risking your next promotion by getting some little thing wrong and running for cover, as Ministers have done so often in the past 15 years. We want to see courage and commitment right at the top.

My Lords, I thank my noble friend Lord Dubs. This has been a useful debate but he was right to say that it is much too short. However, it is important to discuss issues when we get the chance, even though there are honestly held different points of view, as there are on this issue.

The right honourable gentleman the Lord Chancellor said that his priorities are,

“to protect the public, punish offenders and provide access to justice”.

Given that speech, it seems to me that those who believe that prison should rarely be used as a form of punishment have become a little prematurely overexcited. To be fair to the Lord Chancellor, he is starting a discussion which has a long way to run, and even longer to go before legislation on sentencing and other measures is discussed in Parliament. Debate is a good thing, of course, but it is important—particularly for those who believe that he is going to satisfy their every wish—to read his whole speech and not just the parts of it that you want to read.

For our part, we think it is important to imprison serious offenders, but we also think that it is important to seek to rehabilitate them, whether inside or outside prison. We believe thoroughly in community sentences but they must be sentences that really mean something and, when breached, eventually invite custody. As the chairman of the Magistrates’ Association said in response to the Lord Chancellor’s speech, and indeed as the Prime Minister’s mother said—if she was rightly quoted by her son—from her experience as a magistrate of long standing, many shorter sentences are imposed on those who constantly breach the chances that they have been given. I am afraid that we cannot escape from that, however much we would like to do so. Indeed, one reason why the number of domestic violence offences has gone down is that domestic violence offenders now sometimes receive short sentences of imprisonment. No one thinks that there is no problem with short sentences—of course there is—but it is perhaps not quite as simple as some have made out, even in this debate.

When in government, we spent a huge amount of money on increasing learning in prison, on prisoner work and on dealing with drugs in prison, with an additional allocation to NHS primary care trusts for the total targeted implementation of the integrated drug treatment system. What will happen now if the PCTs are abolished? Outside prison, large amounts were successfully spent on dealing with youth offending so that, now that fewer young offenders enter the criminal justice system, there is a fall in reoffending and a smaller number of young offenders in custody than there were a few years ago. There is also the Corston report and the money that has been spent in implementing that. However, the spend on probation increased hugely by, in real terms, nearly 70 per cent between 1996-97 and 2007-08. It is sad to think that the budget, which we set of £870 million for the year 2010-11, has already been reduced by £20 million by the new Government. Goodness knows what is to come.

Therefore, although we make no apologies for our policy towards an increase in custody for those who deserve it, we point out the obvious: that non-custodial disposals are expensive, too, if they are to work. The Lord Chancellor was honest when he said that,

“I … cannot promise that we will be investing vast amounts of public money into non-custodial sentences across the country”.

My point is that prison is expensive—of course it is—but so are alternatives that also work.

I end by asking the Minister a couple of questions which I hope he will answer. First, does he agree that, as the figures make clear, there has been a substantial decrease in the level of crime over the past 15 years? My second question, which is linked, is: if the answer to my first question is yes, does he seriously believe that the decrease in the level of crime has nothing whatever to do with the fact that more people are in prison for longer? If that is the Government’s view, then many ordinary people who have been, but are no longer, the victims of crime will be horrified.

My Lords, I have already said in the margins of this debate that we really need at least five hours to cover the issues. I shall start with the point just made by the noble Lord, Lord Bach. There have been decreases in crime. I shall leave it to the criminologists to decide the reasons for that. I am sure that one of the factors, not only in this country, but in most advanced countries, is that we have gone through a period of considerable increases in prosperity, and there is a correlation between periods of prosperity and levels of crime, but I would rather leave that to the academics. The point was made earlier that when criminals are in prison, they are not free to commit crimes. I once attended a lecture by a former prison adviser to Ronald Reagan who estimated that the right prison population for Britain to guarantee that all the crime-committing criminals were off the streets was about 180,000.

What has caused the Lord Chancellor to raise this issue is that there is concern that prison has produced a whirligig of people going in and coming out which needs serious debate. That is why I welcome this debate and the others that will follow it—indeed, there is another on Thursday. The Lord Chancellor deliberately provoked the kind of discussion that we hope will bring forth ideas about our approach to these matters so that we can see if we can find something better. I am not here to say that the previous Administration did nothing right in their 13 years. Indeed, they did a lot of good things. We would be wrong if we did not face up to the fact that prisons produce more criminals and therefore there is a reasonable desire to look at rehabilitation and alternatives to prison.

It is impossible for me to cover all the issues. There are two points about ex-servicemen, and both have been made. There are a worrying number of ex-servicemen in prison, and there is a need to look at this issue. I understand that prison in-reach promotes the wide range of help and support available to veterans, but we should do more. I take the point made by the noble Lord, Lord Lucas. I have thought for a long time that we should do far more to recruit ex-servicemen into the probation service and the Prison Service because many of the skills taught in the modern military are readily transferable. When I have read of some dreadful case of a young social worker going to deal with a problem family and being unable to gain access to a vulnerable child or whatever, I have thought that perhaps an ex-serviceman with a little more life experience might have got that access. That is a resource we should look at.

It is equally so with mental health. There are far too many people in our prisons with mental health problems. We are committed to improve offenders’ access to services that deal with the priority areas of mental health and learning disabilities. It was pointed out to me the other day that, even apart from mental health, the scale of illiteracy in prisons suggests that there is a linkage that may relate to the points that were made about a lack of self-appreciation. If you are illiterate, you tend to have a poor opinion of yourself in a society that depends so much on communications.

Young offenders have also been mentioned, and the how, why and what of the remarkably good figures on the drop in youth offending. However, we must follow the line of keeping young people out of the prison system if at all possible and look for alternatives. That is true, too, of women offenders. The Government are committed to looking at how to divert women away from crime and tackle women’s offending effectively. We broadly accept the recommendations of the Corston report in this area.

I am not sure whether I can cover the other points that were made in this response. I noted the idea from the noble Lord, Lord Ramsbotham, of regional clusters and directors with specific skills for prisons alongside a pruning of bureaucracy. On new prison build and the shape of our prison estate, we will have to look at what the sentencing review and what some of the initiatives launched by the Lord Chancellor’s great debate produce before we make a decision on that. The right reverend Prelate the Bishop of Chester rightly warned us about the academies of crime. I welcome the intervention of the noble Lord, Lord Mackenzie, because it is very important that we remember the victims as well as the criminals. Ken Clarke keeps on telling all his Back-Benchers that he did not say that short sentences can never be used or should be abandoned. I urge all noble Lords to read the whole speech; it is well worth it.

I shall stop trying to respond to the specific points, because I have run out of time. We are looking at ways in which to divert funds from custody to community work. However, as has been recognised, there will always be a need for prison, either because of the seriousness of the crime or the continuing risks posed to the community. Public protection remains paramount but, to echo my right honourable friend the Lord Chancellor in his recent speech on criminal reform, prison is not just a numbers game. It is not about how many offenders we can lock up or simply reducing the prison population for the sake of it. The challenge that we face is far greater than simply getting the numbers right; prison must be a place of punishment but must also rehabilitate offenders if we are to stop them committing crimes again and again. About half of all crime is committed by people who have been through the criminal justice system before, which is hardly surprising given the limited available time—a point that the noble Lord, Lord Dholakia, made—to work on offenders during short sentences.

What use is a short period in prison if a prisoner will simply return, not having changed his ways in the slightest? We must do more to tackle the root cause of reoffending. In practice, that means prisons that are also places of education, hard work and an opportunity for change. For example, the Government are currently exploring how prisoners could spend more of their time in productive, meaningful work. It also means community sentences that are rigorously enforced and giving offenders the chance to find a job and accommodation and become drug free.

All this sits in the wider context of our commitment to conduct a full assessment of sentencing and rehabilitation to ensure that it is effective—effective in deterring crime, in protecting the public, in punishing offenders and in cutting reoffending. We need a new, intelligent approach that often recognises the circumstances of the individual case. As has been mentioned, the Government alone cannot, of course, do that. The private and voluntary sectors must be engaged, and our aim is to empower communities to take responsibility in this area. We are looking at alternative custody projects, which provide the courts with enhanced community sentencing options. I have been interested by one such which was initiated by the previous Government on intensive probation supervision. We will look at the outcome of that, but again it is very cost-intensive.

My attitude has never been one of reform for reform’s sake, or because of commitment to some woolly liberalism. The noble Lord, Lord Mackenzie, is right to remind us of the victims, but I am committed to this programme because common sense and practical politics dictate that we explore alternatives to that endless and expensive whirligig of crime, imprisonment, release and reoffending which marks out the failures of our present system. It is all too easy, as has been said, to be intimidated by the cheap populism and “bang ’em up” mentality of the popular media. Perhaps that is the advantage of having a Lord Chancellor at 70 and a Minister of State at 67; we have no long-term ambitions other than to make sure that this policy works. We will resist that temptation and, with the help of debates like this, explore alternatives to a prison system which neither successfully deters nor sufficiently rehabilitates.

Committee adjourned at 6.20 pm.