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Earl Russell: My Lords, does the noble Lord understand that the argument of the noble Baroness, Lady Stern, was not about the propriety of punishment; it was about the propriety of punishment being imposed by the executive?

Lord Warner: My Lords, we can have a philosophical debate about that and no doubt we shall

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do at later stages of the Bill. I am trying to set out my agenda in terms of my response to the Bill. I shall be happy to engage with the noble Earl and the noble Baroness in a philosophical discussion about that at a later stage.

I believe that in plain English we are dealing with community punishments. In my judgment, being clear that they are punishments to be enforced in accordance with national standards makes it far easier for the courts to use them without fear of being accused of going for soft options. In addition, they will be more reassuring to victims and to public confidence. We cannot simply shrug away concerns about public confidence. That is not being populist; in this country we police by consent and operate our criminal justice system by a degree of public consent.

Perhaps I may say a few words about the restructuring of the Probation Service. It is a key aspect of community enforcement to have the police and Probation Service working together closely, especially with sex offenders and persistent offenders. As many people in the Probation Service and the police service have said to me, realigning probation areas with police force areas is a major step forward. I believe that it is to be welcomed, as is the creation of a national probation service. It should provide the direction and leadership which are long overdue and provide greater consistency of enforcement between different areas.

Of course, the local boards are important but we should not forget that the local management arrangements that are in place have not been totally successful in achieving resources for the Probation Service, in improving practice consistency and in achieving public recognition of the legitimate achievements of the Probation Service that other noble Lords have mentioned. A stronger national focus would improve some of those aspects.

I strongly support the new measures on compulsory drug testing. Of course they will cost more to implement and of course it follows that more testing is likely to mean more positive results and the need for more treatment services. However, the fact that treatment services are still inadequate in some places does not mean that we should hold back on compulsory testing, as some are suggesting. That is a false argument. The two are not alternatives. We need both testing and treatment services.

Drug action teams should use the new money that has been provided to press on more vigorously than has so far been the case with the expansion of treatment services. The slow progress on testing should not be used as an argument to justify not pressing on with compulsory testing.

We have yet to exploit the full potential of new technology for electronic monitoring, which, combined with effective supervision, could help to create effective community punishments. I hope that the Government will not be deflected by the contrived attacks of the Opposition spokesman in the other place on home detention curfews. They have been a huge success when applied to people who were

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coming out of prison on licence anyway, with more than 95 per cent of offenders completing their period of HDC without being convicted or cautioned or having proceedings still pending. That shows what we can achieve on community punishment if we set our minds to it. I welcome the provision in the Bill to make further use of electronic monitoring as an alternative to prison. It can often be a more effective way of punishing.

Finally, I welcome the new measures on juveniles. I particularly welcome the measure to help to prevent unsuitable people working with children and to make it a criminal offence for anyone so identified to apply for or accept work with children. From my experience in social services, I know that paedophiles are devious people and are far from self-evident. The Government are to be congratulated on further strengthening the provisions against people who seek to abuse children. It is clear from the debate so far that there will be many areas of detailed scrutiny and discussion as we take the Bill through the House, but its shape and content make it an important criminal justice reforming measure that deserves our full support.

4.22 p.m.

Lord Ackner: My Lords, I start with a general point. I am appalled by the recent attempts to politicise the administration of criminal justice. The Government and the Opposition appear to be vying with each other as to who is the tougher on crime. Having apparently been stung by the criticism of having done too little to stop English football thugs causing mayhem at Euro 2000, thereby seriously, if not fatally, prejudicing the 2006 World Cup bid, the Government have resorted to gesture politics.

The Prime Minister's lecture at Tubinger University in Germany last Saturday gave the clearest indication that the urge to take action to convince the public that something positive is being done is so strong that no time is taken to think through the proposals, or even to consult those who are affected. Apart from the obvious forensic criticisms, based on the common law or on human rights legislation, which I need not repeat, I ask from a practical point of view how the police are to cope with football thugs who, in preparing themselves for a night of thuggery, are wise enough to take the precaution of carrying neither money nor credit cards with them.

It was not ever thus. Until the 1990s, sentencing and the criminal law were not party political issues. Legislation was not introduced to score political points. In the 1970s, criminal justice legislation would not have been introduced unless a neutral body, such as an interdepartmental committee, had thoroughly reviewed the issues and produced the proposals. As a result, it was considered excessive to have even one new criminal justice Bill a year.

That system has disappeared. Legislation now emerging from the Government is politically driven, such as the Crime (Sentences) Act 1997. Outside bodies, such as the Advisory Council on the Penal

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System and the Criminal Law Revision Committee, have almost completely disappeared. Not long ago, there was bipartisan consensus that the aims of sentencing should concentrate firmly on the rehabilitation of offenders. Of course, no one doubted for a moment that those who commit serious crimes must receive a custodial sentence. That approach appears no longer to be politically correct. The Government and the Opposition appear to have overlooked Section 1 of the Criminal Justice Act 1991, which makes prison the sentence of last resort.

Clause 48 provides an almost automatic sentence of imprisonment. The Government well know that the words "exceptional circumstances" have been so narrowly defined by the courts that they have almost come to mean "once in a blue moon". By seeking to remove judicial discretion, the Government are attacking judicial independence. If Parliament requires the judiciary to impose a sentence that the judiciary considers unjust, it is a clear attack on the independence of the judge.

Your Lordships had no difficulty in appreciating that concept when, some time ago, I drew attention to the Russian phenomenon of telephone judges, who were phoned up by the executive during a trial and told what sentence should be imposed. When I took up that issue, somewhat critically, at a dinner party where I met the chief prosecuting counsel, he waved my criticisms aside, saying, "Well, after all our hard work, we are not going to run the risk of judges making a nonsense of what we have achieved".

Save as a matter of degree, I do not see that what is happening here by statute is all that different. Instead of being rung up and told what sentence to provide, Parliament has set it out in the statute. It does not matter how unjust you think it is as a judge, unless there are exceptional circumstances--a sense of injustice is not one of them--that is the sentence that you are obliged to impose. The results of Clause 48 will involve, from to time, a judge being obliged to impose a sentence which he considers is unjust. In any event, it is a sentence which is likely to be too short for any rehabilitation work.

There has already been reference to the extent to which this provision will increase, and substantially increase, the prison population. There has already been a reference to the cost involved. There seems to be little to support the nature of that provision except that the executive does not have confidence in those who are appointed to exercise the judicial function.

To some extent, I applaud the Bill because it is an indication that the Government realise that the public must be educated to understand that sentences within the community involve punishment. Unless the public so understand, there will be inadequate confidence in community sentences and as a result, under the impact of public opinion, the prison population will increase.

The Government are foolish to place so little confidence in the reasoning ability of the public and in their understanding of the elementary points of sentencing. Renaming sentences--Clauses 38, 39 and 40--will not achieve anything at all. It may add to

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confusion in that the probation order will sound very similar to the community order. Strangely enough, the probation order does not refer to punishment and the community service order does not refer to rehabilitation. As I suggest, there is likely to be confusion as a result.

I do not wish to take up further time on other matters in the Bill because they have been well covered by previous speakers. I accept the strength and validity of their criticism. I hope that the Government will think again, but hope is now beginning not to spring eternal, having regard to the extraordinary behaviour in which this Government and the Opposition are indulging on the subject of punishment.

4.43 p.m.

Baroness Seccombe: My Lords, two months ago, I received the customary letter from the noble and learned Lord the Lord Chancellor, informing me that, having reached a certain age, my services as a magistrate were no longer required. It is in that capacity that I declare an interest and express my personal views gained from over 30 years on the Bench.

I never served on the youth panel so my only experience with children was via the family court. I saw that work as very much a protection issue for the innocent children caught up by warring parents unable to settle their differences concerning the children.

After many years spent listening to heart-rending situations involving children, I learnt how important it was to have wise advice from dedicated professionals. Therefore, I welcome measures which will strengthen that support and, it is hoped, ease the way for distressed and unhappy families.

Like all new services, CAFCASS, as I am sure it will be called, will require adequate funding. If the necessary finance is not forthcoming, there will be great frustration as expectations will not be realised. Therefore I hope that the noble and learned Lord the Attorney-General will be able to assure me that the service will be properly resourced and has been thought through in detail.

Mentioning the words "thought through in detail" leads me to wonder at this point whether the Prime Minister's initiative on loutish behaviour will be included in this Bill. I was amazed at what appeared to be a comment off the top of his head when he was in a panic. I was even more astonished that a Prime Minister should announce such a measure when he was in another country. It seemed to me to be rather like washing dirty linen in public. Potential visitors from Germany may think twice about coming here if they accept the Prime Minister's view that such behaviour is prevalent in every town and village.

Part II is perhaps the most important part of the Bill. I am sure that other noble Lords were as horrified as I was by the depravity and cruelty which took place not only in Wales but in other institutions around Britain. Those were children who, through no fault of their own, had been placed in care. I can hardly bear to use

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the phrase "in care". The children were subjected to the most appalling and terrible experiences. I feel deeply ashamed whenever I think of it. How on earth did we let it happen?

I have never forgotten the exhibition organised by the police on paedophiles and their behaviour, although I felt that I just could not stay until the end because it was too upsetting. I saw a video of how a small boy was sexually abused. His expression of sheer fear, terror and misery haunts me constantly.

People who offend in that way should not be allowed to work or have close contact with children, I believe, ever again. I welcome measures introduced to reflect that concern. In particular, I welcome placing the burden of proof on the individual to show that he is no longer a risk if he should ever apply for the order to be revoked. But we shall need to look at the arrangements for those disqualification orders. I understand that they will be used only against criminals sentenced to 12 months or more. That seems to leave a loophole and amendments must be tabled to deal with that in Committee.

Another area of concern is the patronage which will be vested in the hands of the Secretary of State. Just as in the Learning and Skills Bill, there is that great centralising measure with the chairmen of both national and local boards being appointed by the Secretary of State. That will need extremely careful scrutiny in Committee.

Part III deals with offenders. I was saddened to see that the Government want to change the name of some court orders as, apparently, Ministers feel that the present names are not understood. I disagree and cannot accept that "community rehabilitation" is better than "probation". After all, the expression "probation" has been in use for many years and I believe that it is understood by most people, even if not by Her Majesty's Government. In particular, it is understood by those people appearing before the courts.

I also believe that "community service" is more acceptable than "community punishment". After all "service" is what is being done--unpaid work for the community. However, I concede that the phrase "combination order" is awkward and would be better expressed as "probation and community service order".

I hope that this is not change for the sake of change and I hope that it is not yet another of new Labour's modernisation obsessions.

That leads to breach of community orders. I am deeply concerned that mandatory imprisonment for failure to comply with an order is creating a straitjacket. For example, it takes no account of those suffering from mental illness. I am reminded of unit fines, which were inflexible on introduction but were soon altered. Magistrates should be given the discretion and flexibility to make decisions in each case without the stricture of obligatory penalties. I believe, however, that if an offender breaches an order, he

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should be dealt with firmly and speedily. He may, indeed, receive a custodial sentence but not a mandatory one.

The Bill has already been the cause of much debate on the issue of the non-attendance of pupils at school. The Bill would raise the maximum penalty from level 3 to level 4; in other words, from a fine of £1,000 to one of £2,500 and/or three months' imprisonment. It seems rather absurd to raise the fine to such a high level. During my time on the Bench I occasionally heard cases of that nature. Most of those who appeared before us were single mothers on benefit who also had other children. I have looked at the current sentencing guidelines for a first offence for someone in that position. Where a child has missed three weeks at school, the starting point would be £40 or, if a child missed half a term, £100. A guilty plea would result in a discount in which the fines would be £26 instead of £40 or £66 instead of £100. That is obviously a far cry from £1,000 never mind £2,500.

I am told that the purpose of raising the level is to give the court the power to issue a warrant for arrest if the parent fails to attend a court hearing. I would be grateful if the Minister could confirm that. I believe that parents should attend to explain why a child has not been going to school. However, that seems to be a heavy-handed way to go about it. I would hope that another method could be found to achieve the same ends.

I have always felt that the problem was the delay in getting the case to court. I remember a case where the non or minimal attendance was spread over two terms. It must be better to bring the case at a much earlier stage. It would be helpful if the Minister could say how many pilot parenting orders have been made in the past two years and how effective they have been. I would also welcome a copy of the evaluation. The Bill is therefore like the curate's egg: it has some good points which I welcome but others which are in need of amendment.

The Government have an enormous problem. Crime--particularly violent crime--is rising. Police numbers are falling and new measures will require more manpower. I hope that your Lordships will agree that we have a responsibility to ensure that where possible we improve the Bill so that, when enacted, it will be a useful tool in the battle against crime.

4.42 p.m.

Baroness David: My Lords, I thank the Minister for his clear exposition of the Bill, which makes two sensible and interesting changes to the Probation Service and the court welfare services. The Probation Service is reorganised into a national probation service for England and Wales, the 54 present separate services being reduced to 42. Their areas will be coterminous with the police and Crown Prosecution Service. That should make for greater consistency of practice and make it easier to spread good practice across the country. One national director should be in a more powerful position to put the case for adequate

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resources, which are essential if the Government's aims of reducing offending and protecting the public are to be realised. Like the noble Baroness, Lady Seccombe, I should like reassurance about the resources to be provided.

The other change is the creation of a unified service for the court welfare services which will become the children and family court advisory and support service, or CAFCASS, as it is now called. I am not keen on acronyms, but that is certainly less of a mouthful than the whole six words. It is to be a merger of the guardian ad litem and reporting officer service for public law cases; the family court welfare service for private law cases, and the children's section of the Official Solicitor's office.

The aim of creating a single source of expertise within the court system is to be welcomed. It may take a little time to settle down and make those now working in the system happy that their interests and expertise will not be diluted or ignored. I know that the guardians ad litem have some anxieties concerning: first, the qualifications of the officers of CAFCASS; secondly, the right to conduct litigation and right of audience (which comes within Clause 15); and, thirdly, the inspection service.

When the Minister, Paul Boateng, and the Parliamentary Secretary, Mrs Jane Kennedy, came to speak to the All Party Children Group last week--we are very grateful that they did--I asked about training. I was told that discussions are underway regarding an integrated strategy and accreditation scheme and that the Government were looking at continual professional development, an issue which has been ignored in the past. Both trainee and in-service training issues, as a modular degree course based on the OU distance learning approach, were being considered.

The aim is to have CAFCASS up and running by April 2001. Training recommendations are to be ready by September 2000. Further decisions depended on the appointment of a chairman and board for CAFCASS. When is that to happen? September 2000 is very near. If the new service is to be a success, which we all want it to be, the training programme is vitally important. Existing officers, who may have their job descriptions changed, will want to know how they are to work. They need to know soon if morale is to be kept up.

A second issue which I raised at the meeting was the matter of how children's views will be held by the court. Clause 12(1)(c) of the Bill defines as one of the service's duties:

    "to make provision for the children to be represented in [family] ... proceedings".

That begs the question: what is to be represented, the child's wishes or the child's best interests, or both? To put it another way, if there is a conflict between the CAFCASS officer and the child, who instructs the lawyer?

Under the rules governing guardians ad litem, if the guardian's views of best interests conflict with the child's view of his or her best interests, the child has the right to be separately represented by a lawyer, while the guardian continues to report to the court.

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On the other hand, the Official Solicitor only ever represents the child's best interests. He usually informs the court of the child's views, but that does not mean that he represents them. Indeed, he may argue against them. Can the Minister, or the Attorney-General, when he replies tell us how this problem is to be resolved, and also how Article 12 of the UN Convention on the Rights of the Child has to be considered?

I turn to Part III of the Bill, about which I have quite a few reservations. I should like to say, before embarking on this part of my remarks, that I am totally sympathetic to the aims of the Government in trying to reassure the public that the Government understand the frustration and horror that those who suffer burglary, vandalism, assault, and noise feel about the system that allows this to continue. They think that the Government are soft and the sentences inadequate, particularly the community service order.

We have to make it clear that it is an adequate and useful sentence, as the noble Baroness, Lady Stern said, and that breaches will be dealt with quickly. I know that there has been some slowness regarding that, but there has been a great deal of improvement lately and I am sure that the Probation Service appreciates that there must be. I firmly believe that to change the name of the order to "community punishment order" is a bad mistake. It is even slightly ridiculous. It sounds as if it is the community that is to be punished and not the offender.

I hope that Government will listen to the remarks of the noble and learned Lord, Lord Ackner, which I thought were very sound. Of course, the offender must repay his debt to society. However, at the same time he must be put in the way of learning other ways to behave, and of new possibilities for job training. He must find new interests and meet people who can sympathise and help. I dread to think what Lady Wootton would have thought of the proposals in the Bill for the name of the order. It was she and her advisory council at the Home Office who invented the community service order, which can be so successful and could be made so now. I hope very much that we can go back to "community service order". I think that it can be made to be understood by the public.

I am also against bringing offenders back to court without a second warning and the magistrate being given no discretion at all, as the noble and learned Lord, Lord Ackner, and others have said. That is quite wrong. There will be increased pressure on the over-crowded prison system with little if any rehabilitation taking place during the few weeks in custody. In many cases a fine and a continuing order is much more likely to prevent the offender from reoffending, and I hope that we can make changes in that regard.

As has been said, even the Home Office suggests that 25,000 people or more will be sent to prison, at enormous cost. That is an incredible waste of taxpayers' money. My noble friend Lord Warner told some of us a week or so ago about the highly successful work being done by the Youth Justice Board. If

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something new is required, perhaps that could be extended to the 18 to 25 year-olds; that would be far better than sending those young people to prison.

My final point concerns the proposals to increase the penalties on parents for the truancy of their children. The fine on parents of a persistent truant is to be £2,500 or three months in prison. Parents of such children are most unlikely to be able to pay even modest fines, let alone those of £2,500. They tend to come from the poorest areas with the lowest incomes, and most have a range of social problems. The schools themselves will begin to experience problems if this provision is brought into force. If the parents are sent to gaol, it is likely that the children will be taken into care, thus adding another problem to an already dysfunctional family.

And the question of human rights may arise. Surely people should not be deprived of their liberty for the actions or non-actions of others. I hope that the Attorney-General will think about that. The Government have given commendable support to non-punitive anti-truancy programmes Perhaps they can be extended.

There are some aspects of the Bill to praise. The protection of children is enhanced. But I, like many others, have raised matters of concern. I hope that the Attorney-General can reply in a positive way. Let us make improvements to the Bill as it goes through this House so that we can be proud of it. At this moment, I cannot really say that I am.

4.52 p.m.

Lord Phillips of Sudbury: My Lords, I suspect that no Bill on crime and punishment in this age will be anything but extremely difficult to put together. This Bill is no exception. Our job is to scrutinise and speak up about those areas where we feel improvements can be made. I agree with much that has already been said.

In relation to one point made by the noble Baroness, Lady Stern, reference to "punishment" in the issues to be considered under Clause 2 by the new probation service (as I shall persist in calling it) is a mistake. However, I congratulate the Government on the protection of children provisions, Clauses 25 to 37, which are a model by comparison with what I am afraid is now law in the Care Standards Act, about which we had many debates hitherto. It may be that there is a difference in departments, but the Home Office understands a great deal about basic human rights and procedures.

But even in commending those provisions I raise one issue: as things stand, the Secretary of State can, by order, extend the range of offences in respect of which disqualification from working with children will automatically apply. That is an important issue. It adds a second and in many cases more important punishment to an offence than the punishment provided under the mainstream criminal law. That extension should therefore be granted by a positive procedure.

My other point on the disqualification arrangement again echoes what the noble Baroness, Lady Stern, was saying rather eloquently in terms of the

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rehabilitation of offenders, which I am sure we all agree is difficult to achieve. Is it necessary to say, as the Bill says, that someone who is disqualified from working with children cannot make an application for the lifting of that disqualification, not merely 10 years after the offence was committed, but 10 years after he or she was released from prison? That creates a difficult climate in which individuals can hope, within prison, to rehabilitate themselves so that, in the case of a long sentence, they will come out of prison radically altered from the state in which they went in.

I should like briefly to back what was said by the noble Baroness, Lady David, in relation to Clause 15, which allows the new service, CAFCASS, to appoint an officer to represent a child in proceedings rather than, as now, a solicitor or solicitor and barrister. In that regard, representing what many of us think, Barnardo's said,

    "Barnardo's believes that the best interests of the child ... have been well served by the combination of the Guardian Ad Litem and the child's solicitor ... We are concerned that this Bill will diminish an effective system ... If the guardian is no longer able to instruct a suitably qualified lawyer"--

of course, there is now a highly developed children's lawyer panel--

    "there is a risk that the views and opinions of the child will not be fully heard by the Court".

Clause 16 allows the officer who is acting as advocate for the child to be a witness in the case. How can that be satisfactory? How can someone in the witness box represent a child who is sitting in the court? How can the child's questions be asked if the witness is the advocate? I feel that that needs looking into and shall be interested to hear more when the Government respond.

I should like to make one or two points on Clause 28. It has been well covered and I agree with the points made. The Probation Service in Inner London carried out a two-year survey into breaches of monitoring. It found that over the relevant period 28 per cent of the total case load had been breached; that is, 4,388 cases; and during that period, 21 per cent of those breaches received a custodial sentence. With respect to the noble Lord, Lord Warner, I do not see how the increasing use of prison sentencing now can be anything but increased further if Clause 28 goes ahead. It places a near compulsion on magistrates to send offenders to prison.

My next point concerns the arrangement in Schedule 1 for what are called "local boards"; the old probation committees. Schedules tend to be rather dry stuff, as I know only too well, but sometimes the devil is in the detail and Schedule 1 is no exception. My colleague has already referred to some of the aspects of this schedule, but I urge your Lordships to look at it. It is an astonishing display of control freakery. This is a government-created quango--if that is the right description of these local boards. Incidentally, while we are on nomenclature, is not that the most unmemorable, downbeat title for such an important new body? They are not even "probation local boards", just "local boards".

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As I say, Schedule 1 gives the Secretary of State a totally counterproductive set of powers. One might expect the appointment of local boards to come from the Secretary of State. But, as my noble friend Lord Dholakia said in opening from these Benches, the right is also reserved to appoint the chief executive of the local board, and he or she will then be on the local board. At the moment, the probation committees appoint their own chief executives. They have to draw up a short list which the Home Office then has to approve, and the person they select has to be approved by the Home Office. But this is a big leap. Once appointed by the Secretary of State, the chief executive is then employed by the Crown: he is not an employee of the local board. Everyone else is, but not the chief executive. It does not need anyone who is experienced in organisations--I spent 25 years of my long legal career looking at little else--to see that that is a self-defeating state of affairs. It creates conflict; it creates pressures; and it creates suspicion. Who does the poor chief executive look to when there is a dispute between the local board and the Secretary of State? I do not need to go on.

The "tenure of members" of the board is totally determined by the Secretary of State as, indeed, are the procedures. Remuneration is also determined by the Secretary of state, but that is fair enough. Sub-committees, and so on, are totally determined by the Secretary of State. Then we come to paragraph 8 of the schedule where, for one scintilla of a second, you think that here is a power that the local board can exercise. Paragraph 8(1) states:

    "A local board may appoint staff on terms and conditions determined by the local board"--

hooray! But, sub-paragraph (2) states that any such determination,

    "requires the approval of the Secretary of State",

and so on.

Paragraph 11, which is headed "Payments to Boards", states that the Secretary of State

    "may pay ... any amount he considers appropriate";

but then he may not. The supervision of these local boards is also totally determined by the Secretary of State, as are its ancillary powers. In that respect, the boards cannot borrow. How on earth can a local board get on with its work if it cannot borrow to tide itself over cashflow difficulties? Indeed, the current probation committees do so. Moreover, it cannot hold land.

I believe that the Government have gone to the expense of £1 million to commission a consultants' report on property--noble Lords know what we all think of consultants' reports--and a right old shambles that is. Although it may seem a rather trivial home-keeping issue, I believe that we should take account of what the Central Probation Council and the National Association of Probation Officers say; namely, that this is a very important bureaucratic issue that will cause mayhem, waste and frustration.

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Directions can be given; indeed, paragraph 14 of Schedule 1 says that "different directions" may be given for,

    "different purposes ... either general or special".

Frankly, it would not require anyone in the Home Office who was anything more than incompetent to grind this whole magnificent system to a complete halt. Therefore, I urge the Government very strongly to reconsider the whole of Schedule 1. If there is no degree of trust between government and these local boards, we shall not get performance. Moreover, I do not think that good people will want to serve on the boards if they are as ludicrously constrained, as is currently the case, with regard to their powers.

As I am sure your Lordships will agree, it is difficult enough even now to get good, experienced and capable men and women in the midst of their careers to take on such obligations. I really do despair when one has, as one has at the back of this proposal, the assumption that somehow the centre will do it better than the regions, or the localities. In his opening remarks, the Minister talked about a "unified and centrally-driven service"; it is certainly that. He also talked about the local boards being "more representative". But how on earth will they be more representative? Indeed, they cannot conceivably be more so than those run and appointed by local authorities, as is the case now.

The noble Lord, Lord Warner, said--I think I quote him correctly--that the central control that the Bill will give, especially under Schedule 1, will provide both "direction and leadership", which is long overdue. Does the noble Lord really believe that? Frankly, I do not. This is the absolute recipe for a eunuch board or a series of eunuch boards, which will be worse than useless.

The noble Lord also said that probation committees have not done a "totally successful" job of getting the necessary resources. Surprise, surprise! Just tell me about one arm of state--schools, hospitals or pensions--that has a plenitude of resources. Whose fault is that? What about the next government, or the one after? Are we really content for this crucial service to remain so totally at the whim, and in the hands, of the Secretary of State of the time? I am not; and I have not found anyone out there who thinks that this is satisfactory. On that issue, I urge strongly that the Government should look rationally and objectively at this--I should not say that because they always do so. Perhaps I should just urge them to look again.

5.4 p.m.

Baroness Prashar: My Lords, from my position as chairman of the Parole Board of England and Wales I shall concentrate of Part I of the Bill--that is, the creation of the national probation service--and parts of the Bill that deal with greater use of electronic monitoring, stricter enforcement and the new powers for compulsory drug testing of offenders and alleged offenders.

Perhaps I may turn, first, to the creation of the national probation service. I believe that this legislation provides an opportunity to bring about

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greater consistency and co-operation between the criminal justice agencies; it provides a launch pad for the Probation Service to be even better at reducing offending and reoffending and protecting the public; it places the Probation Service in a better position to persuade the courts and the public that community supervision is vigorous and effective in combating crime.

I particularly welcome the fact that the Bill will result in a stronger national identity and consistency for probation services, together with strong local accountability and service delivery. As we have heard, with the Probation Service fragmented into 54 areas at present and with no national leader, it is difficult to ensure consistency of practice and spread effective practice in supervising offenders nationwide.

The Parole Board works closely with the Probation Service and so we observe from very close quarters the importance of the service's contribution to criminal justice. In recent years, I have witnessed enormous changes in the service. The one significant change is that the service now sees itself very much as part of the criminal justice system, concerned not only with rehabilitation but also with public protection. It is therefore hard to imagine a more difficult and sensitive job than the one which the Probation Service performs. It is equally hard to imagine an effective penal system that does not rely heavily on the professional skills and experience of the Probation Service.

Any measures that strengthen the ability of the Probation Service to perform this crucial role need to be supported. The role of the Probation Service is, and must continue to be, central in relation to those who are in the community; those who are in prison; and those who are making the difficult transition from prison back into the community.

Today, I should like to take time in your Lordships' House to spell out, from the point of view of the Parole Board, how the proposed changes will impact on throughcare and discretionary early release of prisoners. Joint working between the Prison Service and the Probation Service is of great importance to the Parole Board. This working together will ensure that the reports and risk assessments that we receive from prisons and probation officers will be of the highest quality. Risk assessment, which enables us to determine whether an offender is suitable for discretionary release on licence, is a shared concern and is one of the most exacting tasks.

It is recognised as a starting point of work with offenders and the starting point of sentence planning. Probation staff work within prisons and assist prison management to monitor, evaluate and develop resettlement plans with a view to assessing and managing risk. Prison-based probation staff use their links with the outside Probation Service to obtain information about potentially dangerous behaviour and contribute to inter-disciplinary risk assessments for various purposes.

The work of the Probation Service in managing offenders in the community following their release from custody should, therefore, be built on the work

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undertaken in prisons. Better alignment of organisational boundaries within the criminal justice system would assist this further. It would also improve consistency of performance and standards between areas that are currently left to ad hoc local arrangements and differing interpretations of best practice. It would enable improvement of arrangements for disseminating best practice and enable the Parole Board to become involved in probation policy formulation that impacts on discretionary release issues. A national headquarters with which the Parole Board could have direct contact and develop working relationships would overcome the difficulties of communication that we currently encounter.

Central accountability would also help to overcome inconsistencies between probation areas. It would give the service a strong voice at all levels, which is bound to improve the way in which prisoners are managed before and after release.

There is also great merit in co-ordination of corrections policy which has shared aims and objectives, the same risk assessment bench marks and methods and the same systems of accrediting programmes for offenders. However, it will be important for the service to retain local links and local accountability if it is to retain its effectiveness and remain responsive to local needs and circumstances. A national probation service would not necessarily lead to a better service. The balance between police and operational competencies is important and it is this balance which in my view would ensure an effective probation service. Moreover, to perform its role effectively the service needs support, understanding, appropriate and workable organisational structures and, of course, resources, which have already been mentioned.

The Penal Affairs Consortium has argued that the division of accountability between central government and local probation boards must be clarified and boards must have sufficient clout to ensure that local people of high calibre will consider that it is worth being on them. Sufficient resources must be made available to the Probation Service and voluntary partner organisations to allow high quality work to take place which builds on evidence of what works most effectively in reducing crime. It would be helpful to be given assurances on these issues.

Furthermore, supervision and rehabilitation are at the heart of the new national probation service. This is an opportunity for the Government to set out clearly the overall aims of the service, as I believe that this would help to improve public understanding of the service and increase public confidence. While enforcement of licences when people are released from prison and enforcement of community penalties are critical, I argue that the service's role in rehabilitation is equally important. I therefore urge the Government to spell out the Probation Service's role in rehabilitation.

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As we know, the Probation Service has a history which stretches back over 100 years. There is a richness here which has relevance to the Government's aspirations for the modernised Probation Service. The service has always worked with those at the fringes, trying to influence the lives of those whom society finds easier to exclude than to include. Some people in our communities experience disadvantage from an early age. We all recognise that our prisons are more likely to be filled with those who have poor family backgrounds, fail at school and drift into unemployment.

Tackling crime means tackling such problems. Punishment and the strict enforcement of community sentences are a legitimate part of the community's expectations, but the Probation Service knows from its own rich experience that preventing offending requires individual offenders to acquire a true sense of citizenship. That is a human right. The Probation Service has vast skill in challenging unacceptable behaviour and promoting the re-integration of offenders. These are the ingredients of a true recipe for crime reduction and we would do well to remember it. The desire for revenge is so often allowed to dominate the way we punish crime in this country. Rhetoric about toughness so often lends itself to policies which make it more difficult to make a real difference to the level of crime that we face.

If we want to increase public confidence and reduce levels of crime, we must focus on prevention, inclusion and rehabilitation. Exclusion, revenge and intolerance are not the way forward.

The service has a particular expertise in community-based risk assessment. Recognising the danger signals in attitudes and behaviour are part of the service's shrewdness. The way it handles the most difficult and dangerous people in society proves its capability. This expertise is relevant to the enforcement of community penalties and is vital to the courts and other parts of the criminal justice system. It would therefore be a backward step if the service were to be allowed no discretion. What I have in mind here is the clause which replaces two non-statutory formal warnings with a single statutory one and introduces a presumption of imprisonment for offenders who are found to be in breach of a community sentence.

I do not argue with the introduction of a single warning before breach proceedings are initiated, but I believe that a near mandatory prison sentence is bad law. It will impose needless costs on the Prison Service and increase pressure on the prison system by increasing the number of short-term prisoners for whom little, if any, rehabilitative work is undertaken during a few weeks in prison. It will undermine the effectiveness of probation work. Moreover, the presumption of imprisonment is a significant erosion of judicial discretion in sentencing and will make it inevitable that some offenders will go to prison in direct conflict with the original intention of the sentencers.

Having praised the virtues of the service, I take this opportunity to draw the attention of the House to the report, Towards Racial Equality, the thematic

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inspection report of Her Majesty's Inspectorate of Probation which was published last week. It is disappointing, to say the least, that the progress which the service made in the 1980s and 1990s in this area has diminished as far as the question of racial equality is concerned. In his foreword to the report, Sir Graham Smith, Her Majesty's Inspector of Probation, said,

    "I was dismayed by many of the findings of which some raised very serious concerns. I was particularly disturbed about the disparities found in a number of areas of practice between the approach to work with white offenders compared to minority ethnic offenders. Although there was a commitment to work with racially motivated offenders, few services had produced any detailed guidance necessary to transfer this into operational reality".

Sir Graham quite rightly states that racial equality is a "given" and not an optional extra and must be integrated into all aspects of the service's work; that it must challenge and address the behaviour of minority ethnic offenders; and that work must be undertaken to confront and change the racist attitude and behaviour of offenders. He further emphasises that race equality is integral to "what works" and that race equality is synonymous with good practice and is central to the core business of the Probation Service.

Although the findings of the report are extremely disappointing, its recommendations are strong and timely. As we are moving towards a new style Probation Service, it is important that race equality is built into its very foundation and is seen as an integral part of it. It would therefore be helpful to be given an assurance that the recommendations of this report will be fully implemented and not just be treated as guidance and that racial equality and its promotion will be part of the national standards.

I now turn to electronic monitoring. As I understand it, this Bill will provide the statutory authority which will allow the imposition of electronic monitoring on any prisoner who is released from a custodial sentence and who is subject to a period of supervision on licence in the community.

When determining whether or not to release someone on licence, the Parole Board takes into account a number of factors. These include: the nature of the crime; previous convictions; prisoners' previous compliance with supervision (if relevant); behaviour and progress in prison; and the release plan; that is, accommodation, employment and arrangements in the community for supervision. So I presume that this additional provision in the armoury is intended to help with compliance and that its availability is not intended to change the way in which we currently assess risk. It would therefore be helpful to be given some clarity on that matter.

Finally, I say a few words on measures to deal with drugs. Like others, I applaud the fact that the Government are determined to break the link between drugs and crime and that the drug testing provisions in the Bill are intended as a means of encouraging good behaviour and deterring drug misuse. I would, however, be grateful if the Minister could assure the House that drug testing will be imposed only where it can assist in the effective resettlement of a prisoner on release from custody.

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We all know that drug misuse is a chronic relapsing condition. We also know that drug treatments can make a significant positive impact on those problems, but we have no convincing evidence that testing alone can do so. It is therefore important that a drug abstinence order as a requirement is used in conjunction with drug treatment. We must also recognise that as offenders cannot simply stop misusing illegal drugs altogether, although they may have ceased offending and reduced their drug use, testing in these circumstances can be destructive to the motivation of those who are reducing their drug use but are not managing to stop it completely. It would be helpful to consider those issues.

It is equally important that drug abstinence orders and drug testing are used in appropriate cases and where necessary with drug treatment. Spending resources on drug testing without making sufficient provision for drug treatment will not be an effective way of utilising them.

5.20 p.m.

Baroness Thornton: My Lords, I should like to identify myself with my noble friend Lord Warner in welcoming the Bill and in supporting its general thrust to modernise criminal justice and court services. I particularly support the proposals outlined by the Minister in relation to sentences for those involved in crimes against children and the child protection measures contained within the Bill.

I wish to address my remarks to one part of the Bill; that is, to the creation of CAFCASS--as my noble friend remarked, it is a somewhat long and clumsy title--and, within that, to the proposals for mediation services which are contained in Part I, Clauses 11 to 17 of the Bill.

I should declare an interest as a long-standing supporter of and adviser to NCH Action for Children, which is the largest single volume voluntary sector provider of family mediation services, operating as it does seven services providing mediation in large areas of England and Wales. Several services also offer children support services and child contact facilities. Such services are funded in partnership with local probation services. I have drawn on its experience and on the excellent briefing with which National Family Mediation was able to provide me in explaining the importance of its work--of which NCH Action for Children is but a part--and the concerns for which it is seeking reassurance from the Minister.

As noble Lords will be aware, family mediation is a process in which trained and impartial mediators help those involved in divorce or family breakdown to communicate better and to reach solutions acceptable to them both for the future, and which are the best possible for their children. National Family Mediation is the umbrella body for 65 family mediation services in England and Wales, which currently see more than 6,000 families per year throughout England and Wales, of which around one-third are referred by the courts.

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As the Explanatory Notes to the Bill make clear, CAFCASS will assume the functions currently carried out by the Family Court Welfare Service, the guardian ad litem and reporting officer service and part of the Official Solicitor's Office. It will serve the Family Division of the High Court, county courts and family proceedings courts. It will safeguard and promote the welfare of children before courts dealing with family proceedings, provide advice and information to the courts and families, and, additionally, provide support to families. Everyone should welcome the creation of CAFCASS as the establishment of a consolidated child-centred service to the family courts which can be only beneficial to the well-being of families and children.

Clause 13 gives CAFCASS the power to make arrangements for other organisations to carry out specific functions on its behalf. It is intended that family mediation will be one such function, and National Family Mediation will be one of the organisations with which CAFCASS will make arrangements under Clause 13.

Family mediation services were initially established some 20 years ago, many at the initiative of local probation services concerned at the effect of divorce and lengthy legal battles on the children caught in the middle. In recent years, many family mediation services entered into contracts with their local probation service to provide family mediation at the initiative of the courts. This was part of the Home Office's commitment to probation services spending a proportion of their budgets on partnerships with the voluntary sector and undoubtedly contributed to the growth in the early 1990s of local services affiliated to National Family Mediation. More significantly, it enabled many disputes concerning children to be settled without the need for reports to be prepared by the Family Court Welfare Service, thereby saving significant resources for local probation services.

Many family mediation services now have contracts with the Legal Services Commission (formerly the Legal Aid Board). These provide payment--but, of course, only in respect of those clients who are financially eligible. While these arrangements will continue until the provisions of the Bill are enacted and implemented, transitional arrangements are being set in place so that the change to the new regime will occur as smoothly as possible. It is here that serious concerns arise.

National Family Mediation is finding that in this period leading up to the transfer of responsibility from the Home Office to CAFCASS, many family mediation services are experiencing severe cuts to their funding from what were Probation Service contracts. A survey of family mediation services carried out in February this year revealed a reduction that has already amounted to £103,000 for the network of services as a whole. This represents 10 per cent of the previous year's probation funding on family mediation work. In the past 12 months, funding by probation partners for NCH Action for Children has

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been reduced by £36,000. In addition, two services have been moved to what is called "spot funding" arrangements.

The financial impact of this change in funding patterns has served to undermine NCH Action for Children's ability to sustain its services. Historically, probation contracts have been for three years in order to facilitate service planning, growth and stability. Existing contracts are now for one year, negotiated in the autumn for the following year. Funding for the forthcoming year is, as yet, unknown. In these circumstances, forward planning for voluntary organisations to sustain this service is in jeopardy.

The reduction has also been exercised in a very inconsistent fashion, with some areas maintaining funding, others reducing it substantially and a small number cutting grants completely. It is most unsatisfactory for the services to find themselves in a position of financial insecurity at a time when they are required to sustain and adapt their provision over the next few years while the new CAFCASS infrastructure is developed.

Further, this coincides with the LSC plans to enter into long-term contracts with family mediation services based on the present level of funding. If current funding is dropping below the level at which the services are feasible, the financial basis of these long-term contracts will be unrealistically low. Altogether, this state of affairs makes financial planning very difficult indeed.

It is no exaggeration to say that, if matters are not improved and then stabilised, this invaluable service will be lost to the courts in the interim period before CAFCASS is set up. If this were to happen, the cost of re-establishing the family mediation service would be far higher than that of sustaining the current provision. It must be acknowledged that the Home Office, recognising that there is a problem, issued guidance as recently as 12th June with regard to probation funding, but I fear that this may not be enough.

In conclusion, my remarks are concerned with how we get from A to B. I seek an assurance that the Government have taken steps to secure partnership funding during the transfer in order that, at the end, we have a service which meets the needs that the Government have recognised in the Bill and which puts children and families at its heart.

5.27 p.m.

The Earl of Listowel: My Lords, the Bill aims to increase confidence in the Probation Service and in non-custodial sentences; to unify and make consistent the three similar, though separately managed, services for the welfare of children within our court system; and to protect children from the appalling abuse from which many have previously suffered. It also purposes to reduce truancy, which greatly decreases the life opportunities of young people, puts children at risk of sexual exploitation and drug addiction and increases the instances of vandalism, public intimidation and

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crime. These are laudable goals. I share the concern of many noble Lords as to whether the Government have chosen the right means to deliver them.

I shall concentrate, however, on two areas of concern arising from my experience of working with young people. Is the Lord Chancellor's Department the office in which to place the children and family court advisory and support service? As I am sure we all agree, the Government were absolutely right to make the first priority of the new service the well-being of the child. Those who already serve children and families in the courts have a tremendously challenging job--and the guardians ad litem, the court reporting officers and the children's section of the Official Solicitor's Office have a high reputation for meeting that challenge.

Last week I spoke to a former child's advocate. She had moved from advocacy into research because she had not been properly supported. She had asked her employer, a charity, not to assign her to families with a history of violence towards women. In fact she was asked to interview a man whom she later learnt not only had such a history but was known particularly to hate articulate women in positions of authority, such as herself. I give this example to illustrate what can happen when a similar service to the one described is overstretched and to show the degree of personal danger that may be involved.

The Lord Chancellor's Department is of course greatly respected by all but it is far smaller than the Home Office. Can the noble and learned Lord the Attorney-General reassure the House that the voice of the Lord Chancellor's Department will be strong enough to obtain the funding necessary to maintain a high quality, well-supported court welfare service? It would be a great step backwards if staff were to feel under-resourced in the future and were to leave the service for their own protection.

We have the highest divorce rate in Europe and we can anticipate a rising incidence of family breakdown. The court is seldom a good place to solve family disputes. As Judge Thorpe recently intimated, most families might do better seeking counselling and therapy rather than legal redress, or indeed the kind of family mediation to which the noble Baroness, Lady Thornton, alluded. When a couple fall out they need to be helped to recognise their new role as parents pure and simple. In that context, is it helpful to bring CAFCASS into the purlieu of the Lord Chancellor's Department? In communicating to parents that family disputes are better settled out of court, would it not be better for the service to go to the Home Office or even to the Department of Health?

As the noble Baroness, Lady Seccombe, went to great lengths to describe, the Bill makes welcome proposals to prevent unsuitable people from working with children. I beg the noble and learned Lord the Attorney-General, as he considers these measures and the regulations pertaining to them, to consider the need to encourage people, particularly young people and students, to consider voluntary work with children. I urge that as someone whose interest in

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children and families was greatly encouraged by my first experience of service in the community with children 15 years ago.

A survey for the National Centre for Student Volunteers found that 75 per cent of former student volunteers found work in the area of their community service and that the career of 40 per cent of them was completely unrelated to their choice of academic study. Clearly then voluntary work is an important means for students and young people to find their vocation. The most important protection for children is to have staff for whom childcare is a calling. Will the Minister undertake to do all in his power to integrate the new protections that he is providing under the Bill into a system which allows the absolute minimum delay in the processing of police checks? Young people have many demands on their time. There are more lucrative careers than the care of other people's children. It is vital that young people can taste the rewards of such work; to see it not as a last option but as a most fulfilling employment.

Such experience can also be the opportunity to know first-hand the children on society's margins, be they the children of the state, the children of sink housing estates or mentally or physically disabled young people. So this knowledge is immensely valuable. I hope that the noble and learned Lord the Attorney-General can offer reassurance on that point.

5.34 p.m.

Lord Thomas of Gresford: My Lords, there are a number of matters in the Bill which we on these Benches must welcome. The extension of electronic tagging, due to the developments in technology, will indeed make it possible for offenders not merely to be kept within their own homes but to be prevented from making a nuisance of themselves elsewhere. I am glad to see those provisions in the Bill.

Similarly, the family court advisory service has been long awaited and is welcome. However, I share the reservations of my noble friend Lord Phillips of Sudbury about an advocate of that service also appearing as a witness in the same case. One wonders where the interests of the child will be in such circumstances.

The provisions for the protection of children are extremely welcome. Those who come from north-east Wales, such as the noble and learned Lord the Attorney-General, cannot have anything other than a great deal of sympathy for any measure which prevents sex offenders having any contact with children. My only reservation about it is that we have as a society demonised sex offenders. They comprise a very broad category of people, from the fumbling adolescent who commits an indecent assault to the persons who committed the atrocities in Bryn Estyn and elsewhere in North Wales. The provisions in the Bill are welcome.

It is when one turns to other aspects of the Bill that reservations set in. As I listened to noble Lords today, I was musing about the punishments that used to be inflicted by our courts; how people would be put to

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death by hanging; how they would be transported; how they would be imprisoned with hard labour. People would be flogged and whipped. I recall my father, who was a policeman, telling me how deeply upsetting it was for the station sergeant who had in cold blood to whip youngsters pursuant to a court order.

We moved away from that. We developed alternative methods of dealing with young people. We realised as a society that many of the faults that we see in youngsters really reflect faults in a wider society for which we, together, are responsible. We adopted probation. The noble Baroness, Lady Stern, referred to probation officers acting from a strong ethical basis. That is the ethos of the Probation Service. With that was coupled the judicial discretion--a discretion to which the noble Baroness, Lady Seccombe, referred--for magistrates and judges to impose sentences commensurate with the offence and commensurate with the degree of responsibility of the offender before the court. Probation has been part of the sentencing of the courts, as have, in the past 25 years, community service orders.

It may surprise those on the Government Benches when I say that probation in this country has been an overwhelming success. It is a system which has been developed. Anyone who has contact with the criminal justice system--as I, declaring an interest, have--knows that many youngsters who once went astray are today leading perfectly normal lives with families, jobs and careers, thanks to the intervention of the friendly and caring probation officer who gave them help at a very difficult time in their lives. Now, however, the Government call this, to use the words of the Minister, "a soft and ineffective option". Contrary to all the success of the Probation Service, which the Government ritually and frequently commend, it is now "a soft and ineffective option". The change was spelt out by Mr Paul Boateng in Standing Committee G when the Bill was going through another place. He said:

    "We are moving away from a social work-type befriending model, and no one should be under any illusions about that. ... we intend to focus the National Probation Service on law enforcement".--[Official Report, Commons Standing Committee G, 4/4/00; col. 33.]

Mr Boateng also said, at col. 36:

    "No one should be under any illusions about the nature of the change and of the culture shift that we expect: it is a philosophical change".

When the noble Lord, Lord Warner, refers to the philosophy that lies behind the opinions expressed from these Benches and from those of the Official Opposition, he should appreciate that the "philosophical words" have come from a Government Minister in another place. It is the philosophy of the Government that has been changed quite deliberately.

I agree entirely with the noble and learned Lord, Lord Ackner, when he referred to "gesture politics". We have seen the politics of gesture exercised by the Prime Minister. Indeed, we have seen electioneering as we approach another general election. Both sides have

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been vying with each other to prove how "tough" they can be--that word was used three times by the Minister during his opening remarks on the Bill.

However, I think it would be a great deal more "tough" for the Government to demonstrate leadership by going against a press commentary that seeks to whip up public opinion and to change that climate of opinion so that people come to realise that, for the community and for individuals within the community, the greatest safeguards against crime are rehabilitation and reform. The best way to prevent crime is not to lock people away for lengthy periods--they will eventually come out of prison, so the problem is merely pushed back--but to use such time during which people may have their liberty taken away by doing something positive; namely, by using the resources of the state to educate and train those who have offended.

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