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Lord Ackner: My Lords, before the noble Lord sits down, perhaps he will assist me on a small matter. To what extent has there been consultation with the current Lord Chief Justice on Clause 48? To what extent has there been consultation generally with Lord Justice Rose, particularly having regard to the very important liaison committee over which he presides? In relation to the Criminal Justice (Mode of Trial) Bill, the Minister placed at the forefront of his speech the support of the Lord Chief Justice. Does the Minister have that support for Clause 48?
Lord Bassam of Brighton: My Lords, I am grateful to the noble and learned Lord for his question. Obviously, discussions with the Lord Chief Justice on this particular clause continue. I am aware of some of the proper concerns of the noble and learned Lord about that provision, which I entirely understand. That is a view to which members of the judiciary have long held. However, we believe that when looking at breaches, the flouting of orders of the court should be regarded as a serious matter. I understand the issue relating to judicial discretion, but clearly this is something that we can debate at greater length during the course of the Bill.
Lord Bassam of Brighton: My Lords, I cannot advise the noble and learned Lord whether or not there was specific consultation with Lord Justice Rose, but I shall happily look into the matter. I am aware that there are ongoing discussions. The Lord Chief Justice is involved in correspondence with, and makes his views well known to, the Home Office.
I intend to confine my speech to Parts I and III of the Bill, which deal with the reorganisation of the Probation Service and changes in community sentences and their enforcement. The Probation Service plays a crucial part in the operation of the criminal justice system. It is often overshadowed by the police and the Prison Service and it is easy to underestimate its significance. In 1998, which is the most recent year for which statistics are available, nearly 150,000 offenders in England and Wales were sentenced to non-custodial penalties, excluding fines. We are talking in the main about community penalties. That is one-and-a-half times more than the total number sentenced to custody.
In thinking about the work of the Probation Service, to the total number of people serving community sentences at any one time must be added offenders who are subject to other categories of supervision, including parole and other forms of post-release supervision. Supervision apart, probation officers also have important responsibilities for preparing pre-sentence reports so that the court may pass a proportionate sentence, which is an aspect to which I shall return at the end of my remarks, and release plans for prisoners who are to be released from custody.
We can all agree that, regrettably, in recent years the status of the Probation Service has not been valued by successive governments as highly as it deserves. In that context I welcome the tribute paid by the noble Lord, Lord Bassam, to the work of the service. I am sure his words will be both noted and appreciated. But in the nature of things it is easier to highlight those who are subject to community penalties and reoffend when on probation than it is the larger number who complete their sentences successfully.
The Government's response to this situation since 1997 has been twofold: managerial and punitive. In Part I of the Bill the present organisational structure, which is a service based on 54 areas, each answerable to a probation committee largely made up of local magistrates, is to be replaced by a unified national probation service for England and Wales which is to be directly accountable to the Home Secretary. The service will have a structure based on 42 local areas; a board composed of local people and boundaries coterminous with the police and Crown Prosecution Service. Whether the new nationalised service will lead to more efficiency in operation and greater protection for the public to compensate for its loss of independence from central direction, and its answerability to local magistrates, remains to be seen. But at least the reorganisation has been the subject of thorough discussion with the service over a lengthy period of time, and with a wider audience; I refer, for example, to the consultation document published in 1998, responses to which have been considered.
The same cannot be said of the highly objectionable proposal contained in Clause 48, subsection (4), which requires a magistrates' court, unless there are exceptional circumstances, to impose a custodial sentence of up to three months on an offender aged 18
The presumption of imprisonment, as it is called, uniquely combines two features which in recent years and months have been subjected to the strongest criticism in this House. The first is mandatory sentences of imprisonment, whereby the punishment is prescribed by law irrespective of the degree of culpability of the offender and the consequences of what he or she has done. That is fundamentally wrong. For years we had only one mandatory sentence: the mandatory sentence for murder. Then, in recent years, under both governments I regret to say, the list has lengthened. Mandatory sentencing takes away the discretion of the court other than in genuinely exceptional circumstances. We have the noble and learned Lord, Lord Bingham, to thank for that qualification. This is well-trod ground. The Government must have been well aware of what they were stepping out on.
In the Crime (Sentences) Act, which became law just after the 1997 election, but was introduced in Parliament prior to that election, three different categories of mandatory sentences were introduced. It was hoped that the third and largest category--mandatory sentence for repeat burglars--would never be implemented, but I fear that it has been.
The second objectionable feature to the presumption of imprisonment is that only last week we debated in this House another populist-inspired initiative: the withdrawal or reduction of social security benefits if a breach of a community penalty was alleged, but not proved. That proposal was overwhelmingly rejected by your Lordships in a Division on Report. Both proposals--loss of benefit and presumption of imprisonment--are misconceived. It would be best if they were abandoned. If that is too much to hope, I would ask the Attorney-General to explain the relationship between the two separate penalties. They have come from quite different quarters--different Bills and different sponsoring departments.
In relation to the mandatory penalty in Clause 48, for that is what it is, although there is an exceptional circumstances clause, there would have been no hope of getting it through Parliament without that provision. Let us consider the likely practical implications. The Home Office estimates that 25,000 people a year could be imprisoned for breach under these provisions at an additional cost to the Prison Service of £85 million in the first year, which includes £15 million capital cost and £70 million a year thereafter. Even those calculations, high as they are, are based on an absurd assumption of a 50 per cent deterrence factor for the measure. It is assumed that half the people who now fail to comply with an order would be so deterred by the threat of automatic imprisonment for a breach that they would comply.
We are not talking here about people who consider the consequences of their acts; the reality is the opposite. The idea that there could be a 50 per cent deterrence factor is indeed absurd. That description comes not from me, but from the 41 organisations which make up the Penal Affairs Consortium. It includes not only representatives of the penal reform groups, but also of the statutory services. It must be more realistic to assume that an additional 50,000 people annually will be imprisoned should these provisions become law.
Lord Dholakia: My Lords, the Bill comes before your Lordships' House on a day when the Prime Minister is hosting a crime convention, now downgraded as a seminar, in Downing Street. Its purpose is clear: what to do about crime and the level of violence in inner cities. I am delighted that he has stepped back from well-reported views which include police escorting trouble makers to the cash machines to pay their fines. Perhaps I may say how delighted I am to see the noble and learned Lord, Lord Williams of Mostyn. We missed him.
Last week, in a debate on the Child Support, Pensions and Social Security Bill, I said that it was difficult to see what could have possessed a government so strongly committed to crime reduction to introduce a measure which would inevitably increase crime. It is equally difficult to understand what could have made a government so committed to tackling social exclusion bring forward a measure which will further worsen the exclusion from society of many vulnerable people.
Today's Bill is no exception. It is a mixed bag. It contains some useful reforms which will bring about a more unified and consistent probation service, reduce the risk of unsuitable people entering the childcare profession and increase the scope for courts and the Parole Board to make imaginative use of electronic tagging requirements.
However, some other elements of the Bill, which appear to have been designed to show how tough the Government are in a pre-election period, will further overcrowd the prisons while doing nothing to reduce crime. The worst of these provisions is the draconian requirement in Clause 48 for courts to gaol everyone who breaches a community sentence unless there are exceptional circumstances.
The noble Lord, Lord Windlesham, spoke at length about the Probation Service. The reorganisation of the Probation Service into a new national probation service for England and Wales is broadly welcome. At present, with the service fragmented into 54 separate and independent areas and no national leader, it is difficult to ensure consistency of practice across England and Wales. Establishing a national service will make it easier to spread effective practice in
However, we on this side of the House have one principal concern about this reorganisation: it is that the Government have not achieved the right balance between national and local accountability. In particular, it cannot be right that the Home Secretary should appoint not only chief probation officers but also chairs of local probation boards. If we are to find people of high calibre to chair and serve on probation boards, they will want to know that the boards are not simply puppets of central government and that they will have real clout in their local areas.
The Bill creates a severe difficulty for the employers. The Central Probation Council is right to describe this measure as a recipe for confusion of accountability and authority which leaves the employers--in this case the probation boards--in an invidious position. We should take serious note of that. I hope that the Government will look again at this provision. Am I right that Ministers have spoken of the new probation service as following the health service model? Should not the probation boards have the same stature as health trusts and police authorities? We should certainly oppose any measure designed to increase the powers of the Home Secretary. My fear is not Jack Straw; it is that at some stage in the future Home Secretaries could impose oppressive powers to control this service. I trust that the Minister will think again about this particular measure.
We welcome the arrangements set out in Clauses 25 to 36 to prevent unsuitable people working with children. Paedophiles often seek employment in child care settings, giving them the ability to wreak appalling abuse on vulnerable children who can have their lives wrecked as a consequence. The scheme set out in the Bill will prove a valuable safeguard for such children.
The new exclusion orders contained in Clauses 41 and 46, prohibiting offenders from entering a specified area for a specified period, monitored by electronic tagging, could be a useful power if the orders are used sparingly and appropriately. For example, they could require a sex offender to stay away from the home of a victim or potential victim whom he has been targeting, or require a stalker or perpetrator of domestic violence to stay away from his or her former victim.
We also welcome Clause 57, which enables requirements to submit to electronic monitoring to be included in the licence for offenders released from prison. There are undoubtedly borderline cases where the availability of electronic tagging could assure the
I know that the noble Baroness, Lady Prashar, will contribute to this debate and I shall be delighted to listen to her views. There are three particular provisions in the Bill, however, which I believe are misguided. The first is the raft of provisions providing for mandatory drug testing of suspects and offenders at all stages of the criminal justice process.
The resources for such extensive compulsory drug testing would be far better spent on providing more treatment services. I acknowledge that the Government have put more resources into drug treatment, but I am sure that the Minister would accept that there is still far too little treatment provision across the country. The Government estimate that the new testing provisions will cost over £45 million a year, comprising £22.6 million for drug testing people on arrest; £7.8 million for drug testing people serving community sentences; and £15.1 million for drug testing released prisoners. These resources could instead have financed a significant increase in community treatment for problem drug users.
If the courts know of positive drug testing but do not have immediate resources for drug assessment or treatment services, they will simply remand more defendants to drug-ridden prisons. This is hardly the most sensible way of reducing drug-related crime. It would make much more sense to spend the money to ensure that more courts have ready access to drug services to which they can bail or sentence problem drug users who appear before them.
Clause 63 is also misguided. It increases the maximum penalty for parents whose children persistently truant to three months' imprisonment. Imprisoning the parents of truants will do nothing to reduce crime. Anyone who has worked with persistent truants knows that they often come from difficult, disrupted and unstable family backgrounds. Giving their parents a prison sentence would worsen the situation by producing an even greater instability and hardship for the child and for the family as a whole.
The worst feature of the Bill is Clause 48, which requires courts always to imprison offenders who breach community services unless there are exceptional circumstances. Mandatory sentences always produce injustice, and this will be no exception. It will further overcrowd the prisons and greatly increase the number of short-term prisoners for whom little if any rehabilitative work is done during a few weeks in custody. Typically, an offender who is returned to court for breach of an order will have failed to attend, or have been substantially late for, two probation appointments or community service sessions. In many cases the court will conclude that fining the offender and allowing the order to continue holds out more hope of preventing reoffending than imprisonment. Unless there are exceptional circumstances, however, it will be required to pass a
The Government estimate that 25,000 people a year could be imprisoned for breach under these provisions. As the noble Lord, Lord Windlesham, pointed out, this would be an additional cost to the Prison Service of £85 million in the first year and £70 million a year thereafter. The true figure could be much higher, because these calculations are based on an assumption that 50 per cent of the people who now fail to comply with orders will be deterred from non-compliance by the threat of automatic imprisonment. This is an absurd assumption. It flies in the face of all the available evidence and research which has found that changes in sentencing have little deterrent effect. It would therefore be more realistic to assume that, under these provisions, anything up to 50,000 people will be imprisoned each year. We will certainly oppose this clause strenuously during the Committee stage.
If this Bill had been limited to establishing a national probation service, to bringing forward measures to prevent unsuitable people from working with children and to extending the availability and flexibility of electronic tagging provisions, we could have welcomed it with just a few detailed reservations. It is regrettable that the Government, having allowed themselves to be suborned by their overwhelming desire to appear tough at all costs, include other measures in the Bill which will do serious damage to the sensible operation of our penal and criminal justice system.
There are often matters in the Bill where clarity is required. The report of the Delegated Powers and Deregulation Committee has been submitted today. I was grateful for an advance copy. Will the Minister agree that in the matters relating to a drug treatment and testing order the negative procedures would be appropriate?
Does the Minister accept the committee's recommendation that the powers in Clauses 41, 42, 45 and 46 allow for the amendment of the Bill to increase the severity of a sentencing power? Does the Minister accept that these powers should be omitted? Is not the Delegated Powers and Deregulation Committee making a strong recommendation that, if they are to remain, they should be subject to affirmative procedures?
May I also draw attention to Clause 55, which I understand was added to the Bill in the other place. Am I right that this clause has been introduced to abolish the sentence of detention in a young offender institution? Does this mean that all convicted defendants over the age of 18 will be sentenced as adults?
I understand that an assurance was given in the other place that vulnerable adult prisoners will not be put at risk. Precisely how will the vulnerability and particular needs of young adults in prison be safeguarded?
There are a number of sensible proposals in the Bill; but equally there are serious matters of concern. Just to take the effect of Clause 48, its implementation would result in the almost automatic imprisonment of offenders who breach their community orders. That means many more prisoners a year. It effectively means three more prisons the size of Dartmoor. All of this does not take into account what is being discussed in Downing Street today.
Baroness Stern: My Lords, I wish that I could give the Bill a warm welcome. After all, it sets out to strengthen community penalties. That is obviously right, necessary, timely and an important part of the strategy to build a more cost-effective criminal justice system. It sets out to reform the Probation Service. Some reform of the structure of the Probation Service to enable it to play a part in national criminal justice policymaking is long overdue. More protection for children from abuse is highly desirable, as is the establishment of the children and family court advisory support service and flexibility for the final warnings in the youth justice system.
I want to begin by commenting on the plans to reform the Probation Service and the penalties supervised by probation officers. I welcome the plans to reorganise the Probation Service, but I have grave concerns about Clause 2(2) which sets out the aims of the new service. The third aim is,
I now want to comment on Clauses 38 to 40, which relate to the renaming of orders. The proposed name changes have nothing to recommend them. They are confusing and the idea that they will increase public confidence seems very unlikely. I can imagine an advertising executive being quite daunted at the thought of having to devise a marketing campaign for a community rehabilitation order. Probably the best explanation is what we used to call "being put on probation".
The new name for community service orders is even worse; that is, community punishment order. At one blow, the name change destroys the ethos and meaning of a sanction which was invented here in Britain and spread all around the world. The essence of a community service order is "service". It is a measure which brings into the sentencing framework an element of reparation, restitution, paying back to the community, and putting offenders in a position to rebuild their relationship with the community and awakening in them a sense of social obligation.
At its best, it shows offenders that there are people worse off than themselves. It shows offenders that they can help people and be valued for it. Sometimes they voluntarily carry on with the community service work once the order is completed. It shows those being helped that offenders are people, too, and can do good as well as ill. It is a penalty with enormous possibilities for development. Once it becomes a community punishment order, it loses all that meaning. I really urge the Minister to reflect once more on the name changes.
I turn to Clause 48, which relates to imprisonment for breach of community sentences. The noble Lord, Lord Windlesham, set out the case most eloquently. A major objection is that it removes discretion from the courts. It will lead to injustice and the courts will not be able to take the action which they believe to be right, having seen the person and heard the circumstances. It is most likely to lead, not to a reduction in crime, but to an increase in crime. Over the years, I have known many magistrates. They have all seemed to me to be capable of looking at the offender before them and deciding what course is the most likely to prevent further offending.
As we have heard, the measure will mean that many more people will go to prison. Estimates vary between 25,000--the figure given by the noble Lord, Lord Bassam, in May--and 50,000 if there is no deterrent effect. In that context, I want to draw the Minister's attention to research on deterrence commissioned by the Home Office from the Cambridge Institute of Criminology. It concludes that,
Increasing the number of people going to prison in one year by between 25,000 and 50,000 will increase the number of people receiving prison sentences by between 25 and 50 per cent. I want to remind the House what going to prison means. For many people, it means losing their homes. For most people in employment, it means losing their jobs and facing widespread discrimination in employment on release. It means meeting and getting to know many people who are looking for recruits for various criminal activities. It can mean becoming a drug addict. It is an experience which pushes people further out of legal society and towards the lawless fringes. It is socially very costly.
We are grateful for the information we have been given about the likely cost of such an increase in the use of prison, but can the noble and learned Lord the Attorney-General estimate the increase in social exclusion which will be created by the provision and the cost which will therefore fall to the budgets of other departments?
I want to mention briefly the measures relating to drugs. The vast extension of drug testing is estimated to cost £45 million a year, as mentioned by the noble Lord, Lord Dholakia. The organisations which work daily with drug addicts have asked: what is the use of testing without treatment? The noble Lord, Lord Bassam, told us that 700 more drug workers will be recruited. Is that adequate when one considers the amount of drug misuse he described today?
What effect will the measures have on the excellent and well thought-out arrest referral schemes? Under those schemes, people involved with drugs who are arrested are given the opportunity, when in the police station, to get help from voluntary agencies. How can that voluntary and apparently very effective approach be combined with such a raft of compulsory testing?
I want to raise a concern about the abolition of the sentence of custody in a young offender institution. I understand the arguments--more flexibility and perhaps a chance to keep young offenders nearer their homes--but I fear the consequences. Because of pressure on the Prison Service--and it will be greatly increased by these measures--perhaps not as a matter of course, but as a matter of fact 18 year-olds will be placed on the normal adult wings in Wandsworth, Wormwood Scrubs, Liverpool and the other large prisons. They will be at serious risk of being inducted into the adult criminal world or worse.
In conclusion, these measures have been presented as if they will increase public protection, ensure greater social peace and benefit victims. I am sure that the Attorney-General will not accuse those who oppose measures in the Bill of living in Hampstead, being lawyers and not caring about victims. That accusation is unsustainable. Victims are not helped if the names of community penalties are changed to something long and incomprehensible. Victims are not helped if drug abusers are tested and then there is no treatment. Victims on disadvantaged housing estates are not helped if many more of the young people who live
This is a measure of missed opportunities: a missed opportunity to create a framework for community penalties that will make it clear to the public that they work and that they benefit victims and society; a missed opportunity to develop community service in particular into a penalty that is clearly restorative, paying back something to the victim and to society; and a missed opportunity to give courts, judges and magistrates a greater role in imposing sentences that are specific to offenders and their circumstances, and following them through to see that they work. I hope that it is not too late for much of this ill-considered Bill to be improved.
Lord Warner: My Lords, I rise to support the Bill despite the concerns expressed by the previous three speakers, whom I greatly respect. I should make clear that I neither live in Hampstead nor am a lawyer. I see the Bill as another instalment in the Government's programme of reforming the criminal justice system to make it more effective, both organisationally and in terms of processes. This is episode three, following the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999.
In making my observations, I declare an interest as chairman of the Youth Justice Board for England and Wales. It is no great secret that I was the Home Secretary's senior policy adviser from 1996 to the end of 1998. I share his desire to tackle the long-standing organisational problems of the criminal justice system and understand the importance of making community sentences more effective and publicly credible if they are to be seen as an alternative to prison.
As I sit through debates in this House, I sometimes believe that we want to have it both ways: we want to drive down the prison population but we do not face up to some of the consequences of that in terms of credible and rigorously enforced community sentences. I want to remark on those issues before turning to more specialist aspects of the Bill.
First, I come to the issue of reforming the Probation Service and increasing the credibility of community sentences. There is very little with which I am in any measure of agreement with the previous Home Secretary. However, he probably performed a public service in abolishing the earlier professional training for probation officers, based as it was on the diploma in social work. I say that having in a previous incarnation set up the first diploma in social work course in this country. Unfortunately, the Home Secretary put nothing in its place, and I was glad to have helped to establish a new qualification. It focuses much more on the enforcement aspects of probation work--an area where I believe some in the Probation Service have ended up on the wrong side of the argument about community punishment in relation to prisons and where a few are still positioned. We may hear from a few of them during the course of the Bill.
The previous qualification and mix of functions were bound to leave the Probation Service confused about its primary role. Was it concerned primarily with enforcing court-ordered punishment or with welfare? I strongly support the removal of the family welfare function from the Probation Service and the establishment through this Bill of the new children and family court advisory and support service. Not only will it enable the new Probation Service to focus on its key task of enforcement; in my view, it will mean that we have a service to the courts which will better serve the interests of children.
I turn now to the issue of enforcement of community sentences. As I said earlier, we cannot have it both ways. We cannot curb the rise in the prison population when crime rises decade by decade and at the same time persist with too narrow a range of community sanctions which are inadequately enforced. At Second Reading in the other place the Home Secretary cited one large probation area, which for the sake of decency I shall not name, where nine out of 10 offenders breached national standards by failing to turn up on three or more occasions for probation appointments but were not subjected to further action. I repeat: nine out of 10.
I accept that enforcement has improved recently under leadership from ACOP, but that leadership started to be exercised effectively only when the Home Secretary began to press the public confidence aspects of properly enforced community punishments. If we do not want the prison population to rise decade by decade, we must face up to having a wider range of rigorous community punishments properly enforced through a reformed Probation Service, using new technology to the maximum.
The other evening this House indulged in a good deal of wishful thinking about community punishments on the subject of making social security benefits conditional on not breaching a community order. Under the present probation arrangements, courts send more people to prison and for longer terms. Before we criticise Clause 48, we might reflect on how effective the present arrangements are.
During the passage of the Bill we shall hear quite a lot of what I would describe as somewhat mealy-mouthed arguments about the terminology of community sentences. It seems to be entirely sensible to inject the word "punishment" into the title of such sentences. As a long-term supporter of the Plain English Campaign, I believe that we should call these sentences what they are: they are community punishments. The offenders, the victims, the general public and the enforcement service will then know where they stand.
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