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As the Bill approached Report and Third Reading in the other place, it was apparent that particular concerns remained in respect of one aspect of offender management; namely, the work that probation does in relation to courts. We responded to those concerns by tabling an amendment to the Bill that enables the Secretary of State to contract only with a public sector provider for the work that probation does in relation to courts. That amendment was passed unopposed and now forms Clause 4 of the Bill. It was coupled with what is now Clause 12 of the Bill, which enables the restriction to be lifted by means of an order subject to affirmative resolution.
Why do we think that such a power is needed? As I have made clear, we see no reason of principle why this or any other aspect of probation work should be reserved for the public sector alone. But the fact that we do not think it appropriate to open up this area to other providers now does not mean that we should rule out the possibility for all time. If we reach a stage where alternative providers have gained greater expertise and experience, where courts have full confidence in their abilities and where concerns about conflicts of interest have been addressed, the Government of the day may well wish to open up this area of work to competition to see whether it can be delivered more effectively by a non-public sector provider. We should have the flexibility to respond to those changed circumstances without having to wait for a suitable slot in primary legislation.
In that context, it is worth highlighting the fact that the court restriction is cast widely and covers much more than the specialist area of court reports and advice on sentencing. It also covers, for example, the provision of general advice and bail information. It may very well make sense for some of those less sensitive aspects of delivery to be opened up to other providers more quickly, which is why Clause 12(2) allows for Clause 4 to be repealed partially as well as in its entirety. We should not deny this or a future Government such flexibility, but we should attach to it an important safeguard in the form of the affirmative resolution procedure. That means that the Government could not lift the restriction without a vote to that effect in each House.
For a sensitive measure such as this, that is setting the bar high. The Government would need to present a convincing and effective case, backed with evidence, if they were to secure the support of both Houses, particularly this one. The Government currently have no majority here and the House can effectively operate a veto. That is a robust safeguard, and I believe that it is the right approach for an order of this importance.
I was glad that the Delegated Powers and Regulatory Reform Committee agreed that this procedure was appropriate. The noble Lady, Baroness Anelay, however, does not agree with either the Government or the Delegated Powers Committeean unusual point, as it says.
Baroness Anelay of St Johns: I think it appropriate that I intervene, although it is somewhat unusual. I have not said that I disagree with the report of the Delegated Powers and Regulatory Reform Committeeindeed, I have quoted it. It was careful to point out that this was a matter of policy on something that was fundamental to the Bill. In other words, the committee left it to noble Lords to make up their minds about taking other processes with regard to this particular process of affirmative SI. As ever, the Delegated Powers and Regulatory Reform Committee does not pass comment on policy, as that is not its role. As politicians, we should.
Lord Bassam of Brighton: I understand how the Delegated Powers and Regulatory Reform Committee works. My point is simply this: that committee agreed with the Governments interpretation of what was required in terms of process and procedure. It did not suggest that the super-affirmative process was appropriate for dealing with this issue.
In that context, the amendment goes much further than the normal tried-and-tested procedures and seeks to apply a super-affirmative procedure. It seeks, in so doing, to impose an unnecessary delay by specifying that a draft order must be laid for at least 60 days before both Houses may debate the order. Further, it seeks to impose on both Houses by requiring them to approve a report that sets out what will be in the draft order. Both Houses would then be required to approve the same proposals, in the same Session, as set out in the order.
As the noble Baroness has conceded, the amendment was inspired, perhaps in her mind, by the super-affirmative resolution procedure set out in Section 18 of the Legislative and Regulatory Reform Act 2006, which is in many respects similar to the power proposed here. But the circumstances for which the super-affirmative power in the 2006 Act was designed bear no resemblance to the circumstances that we are dealing with here.
The Legislative and Regulatory Reform Act 2006, which I had the privilege of taking through your Lordships House, enables the Government to use secondary legislation to amend retrospectively primary legislation that made no provision for such amendment when it was passed by Parliament in the first place. It was designed for a different purpose altogether.
To reflect the wide-ranging nature of this power and to provide appropriate safeguards, the Act therefore followed the super-affirmative procedure first developed under the Regulatory Reform Act 2001, repealed by the later Act, which operates along the sort of lines set out in the amendment. Our situation is entirely different. Whereas the 2006 Act introduced powers to amend primary legislation for purposes that were not envisaged at the time that that legislation was passed, our intentions are open and clear. Indeed, this is the very purpose of Clause 12: to provide an order-making power to enable the subsequent repeal, in whole or in part, of Clause 4. So a super-affirmative procedure is quite inappropriate here. Indeed, it is ironic that a procedure that was intended to facilitate deregulation and the lifting of burdens should here be used with the aim of maintaining them.
I ask the Committee to think carefully about the implications of applying this procedure in circumstances that are so different from the ones that it was originally designed for. Quite aside from its impact on the probation provisions, it could set a most unhelpful precedent more widely and risk undermining the clear and well understood parliamentary procedures that have stood the test of time. Before noble Lords consider this further, I ask them to reflect carefully.
Under the normal affirmative procedure, the order will be laid in draft before both Houses, and the Government will be required to make their case to both Houses before the order can be made. When Ministers come to do so, they will need to fulfil the commitments that have been made during this Bills passage through both Houses: to demonstrate that the appropriate safeguards are in place to alleviate the concerns expressed during that passage; and to present evidence as to how the new arrangements are working in practice. In fact, my right honourable friend the Home Secretary gave just such an undertaking during the Third Reading debate in another place.
Whether a formal report is the best vehicle for doing so is a judgment that will need to be taken at that time, taking into account the specific circumstances under which the draft order has been laid before both Houses. It cannot be rigidly codified in advance, in ignorance of those circumstances or, indeed, of what exactly the Government propose in the order. The bottom line is that, if either House is not satisfied with the case that the Government bring to the House at that time, it will not support the order and the restriction will not be lifted.
This has been a valuable debate and has provided an opportunity to pull together a number of important issues, in particular the issue of conflict of interest. We do not believe that there is an intrinsic conflict of interest for private companies in writing pre-sentence reports, which is undoubtedly one of the issues that troubles noble Lords. The writing of reports will be done under the very strict guidelines already in place to prevent any similar potential conflicts of interest under current arrangements, when the local board is in the position of both advising on and implementing the sentences of the court. However, we recognise that we have to get the system right before opening up this sensitive area of work to other sectors. That is why we have added this clause to the Bill. In any case, the awarding of a sentencethat being an issue raised in this contextwill remain entirely at the discretion of the sentencer.
The noble Lord, Lord Dholakia, asked whether there had been consultation with the judiciary. There has been very wide consultation on the probation proposals. It is partly in recognition of the concerns about conflicts of interest that Clause 4 was inserted in the first instance.
We are clear on this. We believe that we have a robust procedure that is tried and tested. It will inevitably mean that we must bring forward and carefully explain to both Houses the basis of our decision to move forward in the contestability field. The noble Baroness has drawn together in essence a procedure designed for an entirely different purpose, under legislation intended broadly speaking to deregulate rather than over-regulate. I invite the Committee to consider its position carefully before it decides to agree or take on board the proposal made in the amendment. I hope that, having heard what I have said, the noble Baroness will feel able to withdraw her amendment.
Baroness Anelay of St Johns: I begin by knocking on the head the allegation that the Minister makes that somehow I am abusing a parliamentary process. That is what he is suggesting, in very fancy words.
The Government have chosen to cite one Act the Legislative and Regulatory Reform Act 2006but they have themselves adapted the super-affirmative procedure to suit their own ends in other legislation, including the Civil Contingencies Act 2004 and the ID Cards Bill, in which an amendment was included to that effect until they decided to accede to the request of noble Lords that, instead of any kind of affirmative instrument, there shouldbe primary legislation. So we should not let the Government hide behind an allegation that the Committee will be veering off in a new direction. Parliamentary procedure should be flexible enough to meet the needs of democracy and the way in which the legislature works; it should not just be flexible for the Government to have the power to exercise their own authority.
In this case the issue is simple and I am grateful indeed to all noble Lords who spoke in favour of the amendment. The way in which Clause 4 should be removed is fundamental to the Bill, because the provision gives core protection to the core management work. The Minister says that over the past couple of weeks we have got a greater understanding of how contestability will work. No, we have not; much still remains hidden and uncertain. He is right to say that I have no objection in principle to contestability. My problem is with process, and it comes to a head with putting forward this amendment as a way of trying to resolve the problem that I have with process. He says that the affirmative procedure, by which we can merely reject or accept, sets the bar high enough. It is not high enough for something that, as the right reverend Prelate the Bishop of Chester said, is a matter of judgment on right and wrong. On this matter, I wish to test of the opinion of the Committee.
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