Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Warner: My Lords, does the noble Lord accept that difficulties may be encountered in trying to alter public attitudes towards crime when we are faced with the kind of situation I outlined in my contribution? Nine out of 10 people sentenced to community service orders breach those orders not only once or twice, but three times. With such high levels of breach, it will be difficult to persuade the public that action has been taken and that changes will be made.

Lord Thomas of Gresford: My Lords, I am grateful to the noble Lord. However, I should like to be able to examine the workload for each probation officer, as well as that for prison officers who need to contend with 65,000 or more prisoners housed in buildings that were designed to accommodate far fewer people. The problem is that the resources are going in the wrong direction. As I said, I should like to see the Government demonstrate leadership and persuade the people of this country that rehabilitation and reform are the only way to proceed.

As regards the structure of the new national probation service, I concur with the criticisms made by my noble friend Lord Phillips of Sudbury. How will local strategies initiated by local people be developed? The Minister used those words to describe the new regime. However, the Home Secretary will appoint the chief officer, who may be at odds with the local board. It is inevitable that clashes and difficulties will emerge from that kind of system. What is the need for such centralised control? We have heard the word "fragmentation" used in this context. According to the Government, the Probation Service today is "fragmented". However, that reflects the philosophy of Edward I when he set out to conquer Wales and Scotland. He felt that the United Kingdom was "fragmented". I do not believe that there is any need to centralise. I strongly support local autonomy and putting responsibility into the hands of local boards to carry out what they believe to be appropriate and correct for the people they know in the areas they know.

The noble and learned Lord, Lord Ackner, referred to the imposition of a prison sentence as once being considered the decision of last resort. Now,

3 Jul 2000 : Column 1327

imprisonment is clearly the decision of first resort. I believe that we are following the American path here. More than 2 million people are currently imprisoned in that country, compared with 65,000 in this country.

I turn to the provisions dealing with drug abuse. My noble friend Lord Dholakia referred to "drug-ridden prisons". That comment brought to mind a person I represented in a manslaughter case. He was a heroin addict. It was alleged that he had injected his girlfriend with heroin. I asked him what it was like to be an addict, to be imprisoned and thus without access to heroin. He said, "There is no problem at all. It is easier to get hold of heroin inside prison than it is to get it outside". That is a chilling thought upon which noble Lords should reflect. We are sending people to drug-ridden prisons rather than maintaining them in the community where they can keep their jobs and maintain their responsibilities to their families and to the community.

It has been suggested that drug abstinence orders should be issued. That sounds all well and good, but they will be quite useless unless resources are made available for treatment. The Minister has acknowledged that there is a shortage of adequate drug treatment facilities in this country. As the noble Baroness, Lady Prashar, pointed out, a drug addict cannot stop taking drugs. If a drug abstention order is issued without support, it will be bound to fail. What will happen then? The offender will come before the court and he will then be sent to prison--to a drug-ridden prison where it is easier to acquire heroin than it is on the outside. Not only that, but by executive diktat issued under other legislation that we debated last week, the Government would like to see such an offender and his family lose their entitlement to benefits under our social security system.

Prison has been recommended not only for drug addicts, but also for parents. Under the new proposals, parents who are incapable of getting their children to school in the morning will go to prison for three months. What that will do to benefit the child, I do not know. As the noble Baroness, Lady David, pointed out, such a child will be taken into care. Alternatively, that child will be thrown out of the family home. I have had to deal with people who have been thrown out of their homes by their parents in similar circumstances.

It is claimed that these proposals are part and parcel of the youth justice reforms. However, to echo the noble Baroness, Lady Seccombe, perhaps I may ask how many parenting orders have been made. How many curfews for 10 year-olds have been imposed? How many anti-social behaviour orders have been issued? These are gimmicks that have been tried out by the Home Office, no doubt supported by the noble Lord, Lord Warner, when he was a Home Office special adviser. All those ideas have failed to make any significant impact. In the mean time, fewer policemen are patrolling the streets and violent crime is rising. Despite that, even more gimmicks are being introduced by the Prime Minister without the benefit of any consultation. Over the weekend I was travelling extensively and I heard overwhelming laughter up and

3 Jul 2000 : Column 1328

down the country at the suggestion that policemen should drag drunken louts to cashpoints to relieve them of £100.

The Government say that these measures are being tried in order to protect victims. Victims are to be at the heart of the process and at the heart of the Government's efforts. However, I shall take the words of the Government seriously only when they restore the link between common law damages and criminal injuries compensation paid to the victims of violent crime. The tariff system was introduced by Michael Howard, the then Conservative Home Secretary, after it was rejected as an illegal move in the courts and after it was attacked in this House by the noble and learned Lord, Lord Ackner. The then Shadow Home Secretary, Mr Tony Blair, opposed it bitterly in another place. It was opposed by the current Home Secretary, Mr Jack Straw. But, after three years, what have the Government done to restore justice to victims? Absolutely nothing.

As I have said, parts of the Bill are to be welcomed, but much needs to be done to remove what I regard as positive excrescences from its content.

5.49 p.m.

Baroness Blatch: My Lords, first, I thank the Minister for setting out the details of the Bill. At the outset, I declare an interest as president of the Association of Probation Managers. Perhaps I may say also to the noble and learned Lord, Lord Williams of Mostyn, how much I look forward to working with him over the coming weeks. I have been living under a misapprehension about the workload of the Attorney-General. The noble and learned Lord graces this House almost daily with his presence, from which we all benefit, and he takes a close interest in much of the business taken on the Floor of the House. Now, as previously, the noble and learned Lord is helping out his noble friend Lord Bassam, and for that we are grateful.

Like so many organisations and respondents to the consultation that has taken place, we support some measures in the Bill. However, like other noble Lords, we find that many questions are begged and much clarification is required. Subject to the will of the House, I hope that noble Lords will accept some revision of the Bill during its passage through this House. Where measures in the Bill are designed to tackle crime and where they are deemed effective and enforceable, they will have our support. However, before referring to specific aspects of the Bill, I want to press the Minister on two other, related matters.

When pressed on why the Government had been more proactive when dealing with football hooligans who travelled to watch Euro 2000 football matches, the noble Lord, Lord Bassam, lost no opportunity to blame Conservative Back-Benchers in another place for preventing a Private Member's Bill becoming law. The details of the accusation are debatable, but that is not my point. In answer to a Question in this House, the noble Lord said for the record that, had the

3 Jul 2000 : Column 1329

measure to remove passports from known hooligans to prevent them travelling overseas been on the statute book, the Government would have used it.

The Government have entered their fourth year in office. If the Home Secretary had really wanted such a measure, the Government had only to include it in one of the many Home Office Bills that have passed through both Houses over the past three years; or the Home Secretary could have taken over the Private Member's Bill, which would have ensured its passage on to the statute book. Is it the Government's intention to bring forward an amendment to this Bill? If not, I am confident that such an amendment will be tabled, probably in Committee.

Secondly, it can hardly have gone unnoticed that the Prime Minister has once again chosen to discuss policy not in Parliament, not even in this country, but in Germany. This time, specific measures to deal with drunken and/or drugged hooligans and their behaviour on our streets are being contemplated, aloud, and before any consultation with interested parties. It is suggested that individuals are forcibly taken to the nearest appropriate cashpoint to withdraw £100--that is, if they do not have a spare £100 in their pocket.

There are so many questions that one must ask about the practical implementation of such a measure. Hooligans usually operate in groups. Who should be arrested--all of them? Some may, some may not, have the ability to pay. Some may respond without resistance; some may not. Who will determine the level of behaviour that would trigger direct punishment by the police? Who will resolve on-the-spot disputes about who is displaying the offensive behaviour? What is the policeman expected to do with the cash when he has collected it? Most significantly, where are the numbers of policemen or police women who can afford to be distracted from their duties to deal with the time-consuming business of marching one or more drunken hooligans to the bank? How would accountability for such direct punishment be dealt with? Will the Minister tell the House whether such a measure is likely to be added to the Bill, or what the next steps are likely to be?

Not only is the Bill being discussed against the background of much hand-wringing within the Home Office; it also coincides with a rise in street crime and a serious fall in the number of police officers. In London, the situation is very serious indeed. The Home Secretary has frequently commented that crime doubled under the previous government. What the Home Secretary conveniently does not say is that crime rose during the whole of that time throughout the western world. However, under the previous government, the tide was turned: the number of policemen was expanded by 16,000, and crime fell in each of the last four years of the previous government's term of office. However, since 1997, police numbers have declined and crime is increasing. I understand that we may learn this week that street crime continues to rise. Forgive my cynicism, but I cannot help feeling

3 Jul 2000 : Column 1330

that yet another No. 10 summit, following the Prime Minister's visit to Germany, and the efforts of the spin doctors have more to do with masking a growing crisis.

The creation of a national probation service and a free-standing children and family court advisory and support service are to be welcomed, although there will be matters of detail to be explored in Committee and on Report. I want at this stage to pledge my support--and to express my long-standing support--for the Probation Service. My complaint about the Probation Service when I was responsible for it was that those in the service were their own worst enemies. They did a thunderingly good job, and given the kind of people with whom they had to deal one would not have wanted to be in their place. Sadly, they did not stand back sufficiently to tell the world about what they were doing. I believe that that has changed--it was certainly changing before I left office. More and more, the service was inviting the public in, talking with the public, and displaying the way in which it was working and how effective its services were.

Clause 15 allows staff of the family courts advisory service to conduct litigation in all courts with rights of audience. Clause 16 allows for CAFCASS officers to act as witnesses. That has been referred to in the debate. There is huge concern about the proposal, in terms of non-lawyers representing children facing legal representation for other parties as well as in terms of conflict of interest, where an officer acting as advocate for the child is then questioned as a witness. The interests of the child should be safeguarded; however, I am not sure that the Bill as drafted does so. I hope that the noble and learned Lord will be able to clarify, and if possible allay, our concerns. If not, we shall return to this issue.

There is also concern over paragraph 1(5) of Schedule 1 in regard to the position of the Chief Probation Officer nationally and the local chief officers. They cannot serve two masters. If they are not employed by the boards and they are accountable to the Home Office as set out in the Bill, local accountability and line management will be affected and I am afraid that confusion will reign. I hope that the Minister will consider amendments on this issue.

As the noble Lord, Lord Phillips of Sudbury, said, "local boards" is a frightful name. It does nothing to convey the work of the Probation Service at a local level. I hope that it will be changed--and I hope that it does not give way to the acronym "LOBs"!

The ownership and management of property as proposed, based on a much-criticised report, is also causing concern. The boards, if they are to be effective, should have control over the staff, finances and premises. To regard the control and management of property as a distraction, as the Home Office does, is to misunderstand and to confuse completely the interaction between procurement and the use of buildings with the work of the service on the ground as a justice agency managing difficult and potentially dangerous people. Special factors, such as group workrooms, reporting centres, the isolation of difficult and dangerous people, the need for security systems,

3 Jul 2000 : Column 1331

and the juxtaposition of premises to neighbours, plus the all-important relationship to landlords, are crucial. Local input, control and ownership of decisions are essential. I hope that the Government will rethink this matter and that they will take note of the strong case put by the Central Probation Council.

There are many questions to be addressed on the financial arrangements. First, when additional powers are conferred on the Probation Service, it must be given the resources to deliver that service effectively. Also, local authorities presently have borrowing powers on behalf of the Probation Service. Is the Minister able to tell us whether, when that arrangement ends, borrowing powers will be extended to the boards? What flexibility and powers will boards have to buy and sell services from and to other bodies; for example, partnership organisations, and the voluntary, statutory or commercial sectors? These are all daily activities for the Probation Service. We shall consider the tabling of amendments on these and other related issues. The stability of the service as a result of these changes is important. Therefore, any further reorganisation, whether of the service as a whole or the redrawing of boundaries, should be subject to primary legislation.

We shall examine the very considerable central control and powers of patronage proposed for the Secretary of State. I note that in another place Mr Paul Boateng said that any move to alter or restrict these powers,

    "would constitute an undue fettering of the Secretary of State's discretion".--[Official Report, Commons Standing Committee G, 11/4/00; col. 83.]

I suggest to the right honourable gentleman that that is for Parliament to decide.

I return to family court issues. The National Family Mediation Service, which was touched on by the noble Baroness, Lady Thornton, seeks an assurance that the Government will secure partnership funding during the transfer of assets from the Home Office to CAFCASS. It is also concerned to know how funding is to be assessed to ensure that there are adequate resources for referred family mediation in each conurbation and how the funds are to be allocated.

We welcome the Government's acceptance of our proposal to include assault occasioning actual bodily harm in the list of qualifying offences in Schedule 4. I also look forward to the Government fulfilling their promise to my honourable friends in another place to include amendments which will increase the maximum sentences for child pornography offences. We shall want to consider further the arrangements for disqualification orders. In particular, we remain concerned that they are be used only for criminals who are sentenced to 12 months or more. Your Lordships will be aware of the high profile case of the singer Paul Gadd, better known as Gary Glitter. Despite being in possession of thousands of sickening images of children, he received a sentence of just four months and so would not have been eligible for a disqualification order. The arbitrary 12-month cut-off includes no discretion for judges to impose disqualification orders on those sentenced to less than

3 Jul 2000 : Column 1332

that. As my honourable friends said in another place, it might be better if such a discretion was on the face of the Bill.

We also believe that the list of offences in Schedule 4 should include dealing drugs to children. We shall want to look further at the range of occupations from which offenders will be disqualified. Is the Minister in a position to say anything about plans to merge, or not to merge (as the case may be), the inspectorates of prisons and of probation? Could the idea have anything to do with the removal of Sir David Ramsbotham, the current Chief Inspector of Prisons? Does the Minister accept that the two services are sufficiently important and distinct to warrant separate inspectorates and that consideration should be given to an independent inspectorate for probation?

As was made clear in another place, the Opposition support the Government's proposals on the drug testing of criminal suspects but are concerned that they may not go far enough. The other place debated at length the issue of testing for class B as well as class A drugs. Your Lordships will doubtless want to explore that issue in Committee.

Another concern is that the list of trigger offences in Schedule 5 is too narrowly drawn. We accept that drugs are a major factor in property crime, but they can also play a part in violent crime. In another place my right honourable friend Ann Widdecombe referred to the case of Christopher Tilling who was gaoled for 12 years for manslaughter after setting fire to a house and killing a seven year-old child in return for £200 to feed his drug habit. If the Government are to break the link, as they put it, between drug habits and crime--we do not dispute that aim--they should look at extending the mandatory testing provision to all serious crime, not just acquisitive crime.

The Government amended the Bill in another place to conform with the decision of the European Court of Human Rights in the case of Thompson and Venables. We continue to grieve for the family over the murder of their small son Jamie. The nation felt a sense of revulsion at such a dreadful crime, the effects of which are still felt after a decade. However, we remain concerned about Clause 56 which was not part of those changes. The Government will need to provide an unequivocal commitment that young offenders aged between 18 and 20 will not be dumped with older, hardened criminals in adult prisons. We shall seek to make clear the Government's intentions in this vital area of penal policy.

In a debate in this House on 10th April the Minister agreed (at col. 9) with my right honourable friend Michael Howard that prison worked. However, that contrasts with the early release scheme introduced in the Crime and Disorder Act. More than 2,000 criminals have now been released before the half-way point of their sentence. We welcome the belated change in Clause 60 to exclude sex offenders from that scheme, which was called for two years ago, but we disagree with the fundamental objective of the scheme which is to give convicted criminals a get-out-of-gaol-free card. Those sentenced to six months are being

3 Jul 2000 : Column 1333

released in six weeks. Thousands of robbers, burglars, violent criminals and drug dealers are being granted the privilege of special early release. How can it be honest, transparent or just for criminals convicted of some of the most serious crimes, including manslaughter and attempted murder, to serve less than half the sentence handed down by the judge? We shall table a number of amendments in Committee. Your Lordships should be in no doubt about the strength of the Opposition's feelings on this matter. On return to office we have pledged to abolish the early release scheme.

Turning to Clauses 38 to 40, we believe that the renaming of the community orders is change for the sake of change. Much has already been said on that matter. As to Clause 41 which is concerned with exclusion orders, can the Minister explain to the House whether the tagging and tracking equipment is sufficiently developed and technically robust to be used on offenders who are forbidden to enter a specified area?

As to Clause 42, can the Minister tell the House whether rehabilitative treatment will be a condition of a drug abstinence order? That point was made by many noble Lords, including the noble Baroness, Lady Stern, in an excellent speech. Without some form of assistance to break the habit of drug taking, the failure rate is certain to be even higher.

I turn next to Clause 48(4) on page 33. Referring to paragraph (b), can the noble and learned Lord clarify, by giving examples, what constitute "exceptional circumstances"? If an additional 25,000 people go to prison, which I understand is the estimate of the Home Office, is that cost included in the financial appraisal? If so, I have not been able to detect it.

As to paragraph 18 of Schedule 1, will the Minister consider the strengthening of the complaints procedure?

I assume that the rationale for the increase in fines for failure to attend school is to introduce the penalty of custody, as was suggested by my noble friend Lady Seccombe. Hardly anyone--I believe no one--has been fined the maximum of £1,000. Therefore, increasing the penalty will only increase the likelihood of a breach, which will then give rise to an increase in custodial sentences. Is the total cost of that taken into account, and is it the most effective way to deal with these mothers?

There is not time for me to speak in more detail about breaches of community sentences which will attract custodial sentences. However, as suggested by the Association of Chief Probation Officers, if there was greater certainty that a return to court would follow every breach, that a hearing would take place without delay, that appropriate penalties, including prison and curfew orders, would be imposed and that every breach would attract a penalty, the public would be better protected, and repeat breaches would probably be reduced. It is not just the Probation Service that is at fault here. I am aware that conscientious probation officers who tried to carry out

3 Jul 2000 : Column 1334

that level of enforcement have taken young people back to the court and the magistrates' response has been, "Are you saying that you have brought this young person before us simply because he arrived home last night one hour late? Don't waste our time". If the Probation Service is to do its work, it must be supported by the courts as well.

The approximate cost set out in the financial memorandum is £457 million. However, I suggest that, within that, the cost to the Probation Service of these additional responsibilities is underestimated. As to the estimate of £100,000 for the protection of children measures referred to in paragraph 154 of the Explanatory Notes, that is extremely optimistic. It would just about pay for one year for the services of Alastair Campbell in No. 10; and that does not include his on-costs.

The assumption of a 50 per cent deterrent factor as a result of imprisonment for breach of a community sentence order is too optimistic. I agree with the noble Lord, Lord Dholakia. That figure has been built into the savings factor. According to paragraph 164, all the extra funding, another £0.5 billion, is to come from the departmental budget. Is the noble and learned Lord able to say whether it is new money; or is to be taken from the budget? If so, which services will forgo funding as a result of the funding of these measures?

Finally, the report of the Delegated Powers and Deregulation Committee recommends that powers in Clauses 41, 42, 45 and 46, which allow for amendment of the Bill to increase the severity of sentencing, should be omitted. I agree. For such serious changes, primary legislation is the appropriate vehicle. If the Government do not heed this advice--I believe that the House will display its usual concern--it would be a break with the convention of this House not to accede to the considered deliberations and advice of that committee, the work of which is valued greatly by your Lordships.

As has been said by so many, the new national probation service and the separate child court welfare service are to be welcomed. However, the noble Lord, Lord Phillips of Sudbury, described well the degree to which the Bill is centrally controlled and centrally driven, especially in relation to the national probation service. I agree. That has come to be the hallmark of the Government; Bill after Bill passing through this House is testimony to that. I predict that many days will be spent revising and improving the Bill. I look forward greatly to being back on Home Office territory.

6.11 p.m.

The Attorney-General (Lord Williams of Mostyn): My Lords, I am grateful for the thoughtful tone of the debate. It was set at the outset, if I may say so respectfully, by the noble Lord, Lord Windlesham.

A number of noble Lords have referred to the value of the Probation Service. I hope that in the past I have shown myself to be as powerful a supporter of its good work as the noble Lord, Lord Windlesham. I share one thing at least in common with the noble Baroness,

3 Jul 2000 : Column 1335

Lady Blatch: we both have responsibility for probation and prisons. When one works in that field, one cannot but feel a sense of humility about the work that is done.

I should say immediately that my noble friend Lord Bassam did not say that community sentences were a soft and ineffective option. He said that they had often been regarded as such; and perception is sometimes important. It is also true, unfortunately, that the outcomes in different probation areas have been patchy. As my noble friend Lord Warner pointed out, in some areas breach after breach goes without sanction. In other areas the outcome is much better.

Reference was made by the noble Baroness, Lady Blatch, to the two inspectors, Sir Graham Smith and Sir David Ramsbotham. Sir Graham Smith was the first to insist that national standards should be set and adhered to. He was the pioneer in the document Evidence-based practice, and had the foresight to say that that document would be valuable for three years and we must then scrutinise it again. I have always said that Sir David and Sir Graham were admirable public servants. I have said that on every public occasion when Sir David has been present with me on the platform. I always encouraged him to be an irritant, although I never found him irritating. It seems to me that the purpose of an inspector is to be an irritant. I say this about both of them. They are notable public servants and both had their terms extended: Sir Graham when I was probation Minister and, shortly after I left--there is no necessary connection--Sir David's term was similarly extended. So any ill-informed comment in the press is grossly unfair to both those public servants, who have done, in my opinion, excellent work.

On these occasions I am always reminded of the gloomy baggage that invests the word "but". Almost all of your Lordships have said that this is quite a good Bill--and then I wait for the inevitable "but". Most noble Lords have said that it has much excellent quality. I should like to follow what I have sought to do in the past. If amendments are consistent with the underlying philosophy and capable of improving the Bill in that context, I am more than happy to approach these matters with an open mind. My noble friends Lord Bach and Lord Bassam and I are perfectly happy to have meetings on any convenient occasion to discuss specific worries or queries that any of your Lordships has. We want to make the Bill as good as possible.

Many questions have been raised. Some are quite deep. I should like to give a good deal of thought to the questions and consider answers in correspondence in due time. Whichever noble Lord I reply to, I shall ensure that a copy is sent from the Home Office (I intrude somewhat into the territory of my noble friend Lord Bassam) to all noble Lords who have spoken; and copies will be placed in the Library of the House. However, I shall do my best to deal with particular aspects.

No title can be given to any new organisation which is free of possible misunderstanding. As your Lordships constantly referred to the children and

3 Jul 2000 : Column 1336

family court advisory and support service, I reminded myself that it is spelt CAFCASS and not "Kafka's". (I felt that I should say that because someone is bound to pick it up!) CAFCASS offers a substantial opportunity for the future. A number of noble Lords referred to it as being a possibly enormous significant advance.

My noble friend Lady Thornton asked about start-up costs. The funding for those has been identified. The transfer of funds for the new service will reflect the historical budgetary spend by the three amalgamating services. Future funding--I say this more generally about other questions put by the noble Baroness, Lady Blatch--will depend on the outcome of the current government spending review and I cannot pre-judge that, although I think that it has been fairly widely published in the newspapers that announcements are imminent this month or early next. I cannot go beyond that at this stage.

The Lord Chancellor sees CAFCASS as critically important in looking after the interests of children. The noble Earl, Lord Listowel, asked the Lord Chancellor was likely to be a doughty fighter for necessary funding. All I can say, without breaching confidences, is that at any funding discussion between colleagues which I have attended with the Lord Chancellor and the Home Secretary, the Lord Chancellor has normally been successful. If I were a betting man (which I am not) and I had a spare £5 (which I have not) I would place it on the Lord Chancellor.

One of the questions, raised initially by the noble Lord, Lord Phillips of Sudbury, was the apparent tension between Clauses 15 and 16 in the advocacy rights of a non-legally qualified employee of CAFCASS and the possibility of cross-examination. Clause 16 makes plain that cross-examination cannot be available simply because the advocate is acting as advocate by virtue of Clause 15. I hope that that is a reassurance.

A question was raised about a possible tension between the interests and the desires of the child. Many of us, being parents, have frequently understood that there may be a tension between the views of the child and his or her best interests. That is commonplace in the minds of professionals who have to deal with children. One cannot say dogmatically that the child's views must always be paramount because it is part of the wider context of evidence upon which one draws to see where the best interests of the child lie. We are determined that these two apparent tensions can be reconciled; and the professionalism of the CAFCASS will have great input into, I hope, successful outcomes.

A number of noble Lords referred to the training of CAFCASS staff. The CAFCASS project team is working at present. It is seeking the advice of organisations representing the judiciary, the legal profession, voluntary agencies and court users. CAFCASS will work within national standards and a national training programme and will have a system of independent, regular inspection.

That comment about taking the view of the judiciary brings me conveniently to a question raised by the noble and learned Lord, Lord Ackner. The

3 Jul 2000 : Column 1337

Home Secretary is in continuing, current correspondence with the Lord Chief Justice. It would not be appropriate for me to read out the correspondence at this stage without having the express permission of the Lord Chief Justice, but I can say that in the Home Secretary's last letter, dated 30th June--which is why I am able to say that it is current correspondence--his manuscript note at the bottom says:

    "I am of course happy to discuss this with you further if you or [Lord Justice] Rose continue to have concern".

Some of the concerns expressed relate to Clause 48, which I come to immediately. Clause 48 has been misconstrued. Clause 48(3) introduces Section 2A and has a filter, to which I think none of your Lordships referred. It states:

    "Sub-paragraphs (2) and (3) below apply if the responsible officer is of the opinion that a person aged 18 or over...has failed"--

and I underline these words--

    "without reasonable excuse to comply with any of the requirements of an order".

The dual filter is there. It can only refer to someone over the age of 18 years and the responsible officer has to come to the informed conclusion that it is a failure without reasonable excuse. A warning is then given. New Section 2A(5) states:

    "A warning under this paragraph must--(a) describe the circumstances of the failure".

Therefore the offender is in no doubt. It has to state that the failure is unacceptable and it has to say that, within the next six or, as the case may be, 12 months, "if you fail again, you will be liable to be brought before a court".

I respectfully suggest that that is not unreasonable, unless the public is to continue to believe and to hold the perception--to which my noble friend Lord Bassam referred--that this is soft and ineffective. One therefore has to have a breach or a failure without reasonable excuse; the offender has to be over 18; the warning has to be given; then back to court where, unless there are exceptional circumstances, imprisonment must be ordered. Not for three months, however. One has to look at the words. The term is, "not exceeding three months". There will not be 25,000 extra persons in prison at any one time. I respectfully suggest that it pays to read Clause 48 with care before coming to alarmist conclusions.

Perhaps I may turn to the observations of my noble friend Lady Stern on Clause 2. I think I may call her my noble friend because we almost always agree and, when we disagree, it is normally because she is wrong. I am now ducking!

What Clause 2 says is wholly unexceptionable and indeed to be commended:

    "This section applies to--

    (a) the functions of the Secretary of State under this Chapter;

    (b) the functions of local boards, and officers of local boards, under this Act or any other enactment".

3 Jul 2000 : Column 1338

What is an officer of a local board? That is found in Clause 4(4) which states that,

    "any member of the staff of a local board appointed to exercise the functions of an officer of the board, and

    (b) any other individual exercising functions of an officer of a local board".

What must they do? In Clause 2, when they are carrying out their work, either as Secretary of State or functions discharged under him, or when they are discharging the functions of local boards, they must do three things. That is hardly surprising or objectionable. Clause 2 continues:

    "In exercising those functions the person concerned must have regard to the following aims--

    (a) the protection of the public;

    (b) the reduction of re-offending;

    (c) the proper punishment of offenders".

I find nothing objectionable or strange there at all--particularly as I agree with the distinct sub-text of my noble friend Lady Stern and indeed what was said by the noble Lords, Lord Thomas of Gresford and Lord Dholakia. In some circumstances the protection of the public and the reduction of reoffending may depend on the rehabilitation of offenders; but not in all circumstances.

This Bill is not the first on the agenda set out by the Home Secretary. It is building on the work of the Crime and Disorder Act. I paraphrase the philosophical underpinning of that Act in this way. The purpose here is to intervene early; not as was foolishly and almost childishly described in some newspapers as the Home Secretary wanting to send children to prison at the age of 12. It is to stop them falling into crime so that they do not become persistent offenders at the ages of 17, 22, 25, 36, 47--until they mature or just give up committing crime.

Another purpose is to make community sentences not only effective but apparently effective. They are sentences. They are necessary consequences of crime having been committed. It does no one any favours, least of all the young offenders, for them to think that they can breach, and breach, and breach again.

I did not know what my learned friend Lord Warner was going to say, but if what he describes is correct--and we all know it to be correct--letting a young offender offend, breach and breach again, for half a dozen times without an effective sanction, is actually doing them a serious harm. It is also doing the public a serious harm.

The noble and learned Lord, Lord Ackner, urged us not to treat this as a political football, and I hope that I am not doing so. With the best will in the world, however, I cannot see that a discussion of football hooligans and cash points is within the ambit of this Bill. In answer to the question as to whether it is to be amended in that connection, I do not believe that it is.

The typical characteristics of the young offender are: coming from a home which is dysfunctional; with a life which is not ordered; without education; without employment; and, significantly, some abuse of drugs or alcohol. The belief we have--perhaps shared by many of your Lordships--is that the vital component

3 Jul 2000 : Column 1339

which is lacking is order: the order which comes from school, from education, from discipline. We do not do very well at the moment. We insist that children are educated from the age of four to 16, at colossal expense. Those of your Lordships who have visited prisons will know that two-thirds of the young men in prison cannot read and write sufficiently well even to complete a job application.

This is a determined strategy. It will not please everyone. As I have said on earlier occasions, it is a matter of perfect indifference to me as to whether a person is a lawyer or whether they live in Hampstead. In the past I have pleaded guilty to the first charge but never to the second. I would rather go to the message, however, and not to the messenger.

I believe that what the noble and learned Lord, Lord Ackner, said, echoed by the noble Lord, Lord Thomas of Gresford, is right: we ought not to make a political football of these matters. It may of course be possible to improve the Bill. I repeat--and hope that it will be accepted--that if there are amendments by way of improvement, consistent with the general philosophy, we will look to them.

The areas which it seems to me have been commended by your Lordships in this Bill are CAFCASS--with general if not with perfect applause--and the area which deals with children. I ought to say to the noble Baroness, Lady Seccombe, that sitting as a justice of the peace obviously retards the ageing process. I was amazed to hear her say that she had had a letter requiring her no longer to sit!

Some queries are raised as to whether Clause 48 is too strict or rigorous. I do not think that it is. After all, a community sentence, as described by my noble friends Lord Bassam and Lord Warner, in a sense is an alternative to imprisonment. If it is to be an alternative, it has to be a serious alternative. It is not to be regarded as not a sanction by way of punishment. I know the judicial argument, expressed in its purity by the noble and learned Lord, Lord Ackner, that this is in some way interfering with the independence of the judiciary. I fundamentally disagree. It is taking away some of their power, but it does not affect their independence as judges. We have mandatory sentences and I agree that they are limited. Here one has a parenthesis by way of escape in Clause 48.

There is no doubt that we shall debate these matters at some length. I believe that that is appropriate because--and I say so without disrespect--it is what your Lordships do best. There is a better quality of informed debate in this House than in some other places--and of course I am not thinking of the House of Commons.

A number of questions were asked about the Delegated Powers and Deregulation Select Committee, in particular by the noble Lord, Lord Dholakia, and they were reflected in subsequent speeches. The Select Committee said that it was not happy with the measure but that if it is in the Bill it should be by way of affirmative resolution procedure. We have examined the issue and we believe that the Select Committee is right; the powers should be subject

3 Jul 2000 : Column 1340

to the affirmative resolution procedure. We shall table amendments to the Bill so that the alteration of maximum and minimum periods of community orders are subject to the scrutiny of this House through the affirmative resolution procedure. I hope that your Lordships will accept that as an appropriate and prudent response to the questions which were raised in particular by the noble Lord, Lord Dholakia.

Furthermore, we considered that we should go further. We intend to extend the principle by amending the Criminal Justice Act 1998 so that changes to the period relating to curfew orders are also subject to the affirmative resolution procedure. If one makes the first change, one should go further and make the second. There are precedents for the alternative. We have thought about the issue carefully and I was personally grateful for the courtesy of the noble Lord, Lord Alexander, in indicating the preliminary view of the committee. I hope that your Lordships will consider that to be a decent response to those issues.

Many other questions were raised today. As I said at the outset, I want to give thought to some of the deeper ones and undertake to send the letters quickly. Fine questions as to finance may take some research. However, others, such as the borrowing powers, I can answer straightaway: they are specified in the Bill as being subject to the Secretary of State's powers of direction.

I am conscious that my 20 minutes has run out but perhaps I may make one final comment. As regards local accountability, I recognise that your Lordships' concerns are of worth and validity. However, I submit that they are met in Schedule 1 because paragraph 2(4) on page 46 states:

    "Regulations may make provisions as to their appointment".

The important provision is paragraph 2(5), which states:

    "Regulations must provide, so far as it is practicable to do so, for the persons appointed to be representative of the local community in the board's area and to live or work (or have lived or worked) in that area".

Next Section Back to Table of Contents Lords Hansard Home Page