Lord Beecham: My Lords, it is common ground between all Members of your Lordships’ House, and reflected in some of the amendments that we have already debated, that the problems suffered by and indeed occasioned by offenders are complex and often multiple, and that in dealing with them no single agency is likely to be able to resolve all those problems

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or help people entirely overcome the difficult issues that they face. On the contrary, it is quite clear that in a number of areas, collaboration between various agencies will be required if we are to achieve the shared objective of reducing reoffending, from the perspective both of the advantage to society and of the individuals concerned. Therefore, looking at what is most likely to avoid reoffending, we know—and it has been rehearsed many times in your Lordships’ House—that the principal steps that can be taken to diminish reoffending relate to employment and in particular to housing, but also to issues such as health.

A number of different agencies could and should be involved in all these aspects, both in the direct provision of services and in the case of commissioning services, so that, for example, local authorities clearly have a role. I suggest that in shire county areas that is at both levels—of adult services which are county level responsibility, and housing, which is a district level responsibility. However, of course, in unitary authorities they are located within the same authority. Obviously the police have a role, but also in terms of employment one has to look at the Department for Work and Pensions. In terms of health, in the new organisation of the health service, I suggest that one has to look at two levels: the clinical commissioning groups and the national Commissioning Board, because they have responsibility over areas of mental health.

All these need to be involved, and many of them are already involved, in local arrangements, such as community safety partnerships and crime and disorder reduction partnerships. Some of them are involved in the health and well-being boards, which prepare strategic needs assessments. I would hope that the needs of offenders are reflected in those bodies. However, the purpose of this amendment is to ensure that all providers of the services which the Bill seeks to introduce, or at any rate ensure are available, come together with the other relevant agencies so that a genuine cross-sectoral partnership is dealing with these issues. Of course, that puts a responsibility on the other partners, as well as on the direct providers of probation services or supervisory services.

I hope that the noble Lord will accept that, at least on this occasion, this is meant to be a friendly amendment, designed to achieve some progress on a commonly shared objective, and I look forward to hearing his response.


Lord McNally: My Lords, I always assume that the noble Lord, Lord Beecham, is working in the most constructive manner. I was a little brusque with him in my previous reply. I thought that perhaps buried away in his innocent amendment was an effect that might have undermined the purpose of our Bill. However, in respect of Amendment 7B, I would not even entertain such an unworthy thought. I understand where he is coming from; let me try to explain our approach.

This amendment would provide that all future providers of probation services would be responsible authorities for the purposes of formulating and implementing crime reduction strategies. It would also mean that all responsible authorities, not just probation providers, would be obliged to attend community safety partnership meetings and co-operate with crime and disorder reduction partnerships.

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The Government fully share the sentiment in this amendment but nothing that we do will work unless it is rooted in local partnerships. The Transforming Rehabilitation strategy made clear that the Government expect new providers to engage with statutory and non-statutory local strategic and delivery partnerships. These will, of course, include community safety partnerships, but also others such as integrated offender management, safeguarding boards and youth offending teams. It will be in providers’ interests to work with other partners to achieve the best results, and our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.

However, we also set out in the strategy our clear expectation that providers will need to demonstrate how they will work in and strengthen local partnerships to deliver the results that they are incentivised to achieve. As part of the formal evaluation of this, we will include a requirement that providers’ evidence how they will sustain and develop networks and partnerships. Once the system is up and running, we will monitor local partnership working as part of obtaining assurances of the delivery of services. We will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.

I have set out our commitment and the steps that we are taking to ensure that our reforms are rooted in local partnerships so that offenders can access the broad package of support that they need to get their lives back on track. Incentivising providers to focus relentlessly on reducing reoffending means that it is in their interests to work with other partners and in local partnerships. However, we must ensure that providers have the flexibility to do what works. Integration at local level works best when it is not mandated centrally.

Sections 5 and 6 of the Crime and Disorder Act 1998 already specify that where contractual arrangements so provide, providers of probation services will be responsible to authorities for the purpose of crime reduction strategies. We have no plans to change the legislation in this respect. We are doing further detailed work on the contractual requirements on providers, and will look at how we address issues such as lack of engagement with partners locally. However, as I have already touched on, it will be in the provider’s interest to work with other partners to achieve the best result under our system, and we will incentivise them to do so. We will monitor local partnership working as part of obtaining assurance of the delivery service. As I have said, we will liaise with the police and crime commissioners, local authorities and others in this task. We are doing further detailed work on the contractual requirements on providers and will look at how we address issues such as lack of engagement.

However, it will be in the provider’s interest to do this work. For this reason, although I think it is an important issue, I hope that my reply convinces the noble Lord that it is one that we are keeping in mind as we draw up the contracts. We will try to get the balance right between flexibility in operation, which we have continually emphasised, and an important emphasis on local engagement, commitment and monitoring, which the noble Lord has rightly raised in this amendment. Having given such a warm and constructive reply, I hope that he will agree to withdraw it.

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Lord Beecham: Out of sheer surprise, I certainly will. I welcome the thrust of the Minister’s reply. From the way that the amendment is framed, it looks as though responsibility is intended to fall only on the provider of the supervision but, of course, a wide range of other organisations—some statutory—need to be involved. While the Minister and the department will keep an eye on these matters, it is important that other departments are also engaged, including departments at a national level, particularly the Department for Work and Pensions, the Department of Health and the Department for Communities and Local Government. Then, at local level, there are various bodies such as local authorities, clinical commissioning groups and the like.

I wonder whether a cross-governmental approach on this would be sensible, although not necessarily at this point, rather than simply leaving it to the Ministry of Justice to adumbrate the desiderata of co-operation, but ensuring that there is buy-in from other government departments. Equally, we might approach, for example, the Local Government Association—I declare an interest as an honorary vice-president thereof—to encourage local authorities to recognise the importance of their role in this new programme.

There is nothing between us on this. I hope that spirit of joint approach, which has been evident in the Chamber tonight, will be communicated to those who will be taking the important decisions at the local and, indeed, the national level. I beg leave to withdraw the amendment.

Amendment 7B withdrawn.

Schedule 1 : Supervision Requirements

Amendment 8

Moved by Lord Beecham

8: Schedule 1, page 20, line 6, leave out paragraph 1

Lord Beecham: My Lords, I expect this will be another brief debate. There are two matters to which I want to draw attention in this amendment, and they relate to Schedule 1, which seeks to introduce a new provision, again into the Criminal Justice Act 2003. One relates to the requirements that the Secretary of State may specify must be adhered to by an offender on supervision. That is in relation to the,

“requirement to reside permanently at an address approved by the supervisor and to obtain the prior permission of the supervisor for any stay of one or more nights at a different address”.

While one can well see the importance of residence, particularly in cases where it is undesirable for an offender to reside in a particular location—for example, if there has been an incident of domestic violence and that is the subject of his or her conviction. Equally, however, there are very vulnerable people in the system. If they were, for example, to return to the family home—particularly in the case of a young person, but not necessarily in only those cases—where there are already problems, one can envisage circumstances in which they may be unable to continue to reside there and it may be almost an emergency situation.

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I hope it would be clear that, in those circumstances, as long as the offender takes the first opportunity to notify that he or she has not been able to return to that place of residence, that would not lead to a breach. I assume that would be the case, but some words on the record from the noble Lord would perhaps be helpful.

My other question is a simple one in relation to new Clause 256AB(4), which relates to the fact that the Secretary of State may, by order, specify additional requirements, or “remove or amend” the requirements that have already been set out in new subsection (1). The order will presumably have to take the form of something laid before the House. The question is whether that would be an order subject to negative or affirmative resolution. It is as simple as that. I beg to move.

The Deputy Speaker (Lord Haskel): I have to inform your Lordships that if this amendment is agreed, I cannot call Amendments 9 to 12 because of pre-emption.

Lord McNally: My Lords, I hope I am answering the amendment that the noble Lord has moved, because I am just wondering what Amendment 8 would actually do. It would remove paragraph 1 of Schedule 1 to the Bill, which amends the 2003 Act and sets out the conditions under which the Secretary of State may top up supervision. I have already said that top-up supervision is a useful device to ensure that there is a reasonable period of supervision to enable a change to be made to the offending behaviour. Therefore, the amendment has the unusual and perhaps unintended effect of not removing the provision for top-up supervision that is contained in Clause 2.

Lord Beecham: It is purely a probing amendment. There is no intention to remove the provision.

6.30 pm

Lord McNally: Instead, it would simply remove any statutory controls on the conditions that can be imposed during the supervision period. When sentencing offenders to custody, courts will be unaware of the limits to the conditions that may be imposed by the Secretary of State. This could affect their sentencing behaviour if they decide that they need to compensate for the risk of punitive supervision conditions being imposed. It also, strangely, retains the detail of drug testing and drug appointments under the top-up supervision, which are in paragraph 2 of the schedule, along with the process for dealing with the breach of supervision. However, it removes the reference to them as conditions of the supervision.

The noble Lord said that this was a probing amendment. I will look again and reflect on what exactly he was probing. If I need to clarify this, I will. On his question about a resident who for unforeseen circumstances was in breach, again, I hope that what we are doing is not setting up circumstances for individuals to fail; these are meant to be supportive, sensible, intelligent ways of dealing with individuals whom we know—as has been emphasised—often have very complex

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problems. The noble Lord has probed, I have responded, and if the matter requires further clarification, I will certainly provide it.

Lord Beecham: I am grateful for the second—unscripted—part of the noble Lord’s speech. In the circumstances, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendments 9 to 12 not moved.

Schedule 1 agreed.

Clause 3 : Breach of supervision requirements

Amendment 13

Moved by Lord Marks of Henley-on-Thames

13: Clause 3, page 3, line 38, after “may” insert “if satisfied that the interests of justice so require”

Lord Marks of Henley-on-Thames: My Lords, I will speak also to Amendments 16 and 17 in this group. All the amendments are in my name and in the names of my noble friends Lady Hamwee and Lord Dholakia. Our amendments concern sanctions for the breach of supervision requirements. Clause 3 deals with such sanctions. Noble Lords will have seen that failure to comply with supervision requirements may lead to information being laid before a justice and to the issue of a summons, with or without an arrest warrant, as appropriate. On proof of a breach of supervision requirements without reasonable excuse, it is proposed by new Section 256AC(4) that the court may do one of four things. First, it may impose a sentence of 14 days in prison or in a young offender institution, as appropriate. Secondly, it may impose a fine. Thirdly, it may impose an unpaid work requirement. Fourthly, it may impose a curfew requirement. The clause is permissive, so it would be open to a court also to take no action. However, as drafted, the clause establishes no test for when action is or is not appropriate.

As has been pointed out, the Secretary of State very helpfully attended a meeting of all Peers yesterday and explained the purposes of new Section 256AC(4). The first purpose was, effectively, punishment. He explained that because this section is concerned with offenders who have been sentenced to prison and who then on release are subject to supervision requirements, it should be made clear that if the offender does not comply with those requirements, there will be a penal sanction. That effectively is why the four sanctions that I listed—imprisonment, a fine, unpaid work or a curfew requirement—are penal in nature.

The second purpose he outlined was personal deterrence. He explained that offenders should not think that the supervision requirements are in any sense voluntary, and that if they choose to ignore them or fail to comply with them, nothing will happen. He might have added that there should also be an element of public deterrence, so that the world will know that if offenders disobey supervision requirements, they will be liable to penal sanctions.

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Those propositions may be sound; I do not dissent from them. However, they do not advance rehabilitation, which is the purpose of the Bill. Furthermore, offenders on release from short sentences are, as the Government and many noble Lords have pointed out, particularly fallible. It may be that in many cases a court would take the view that instead of imposing one of the four penal sanctions, it would be better in the interests of rehabilitation for the supervision requirements previously imposed by the Secretary of State to be varied. It may be that they should be varied to stronger requirements or to requirements that are better targeted to the particular needs of the offender, which may have been revealed by the breach of the requirements that had been imposed earlier—or by the proceedings taken after the breach and the investigation before the magistrates in court when the breach was looked at.

The possible requirements that can be imposed are to be found in Schedule 1. They cover a broad range and are very flexible. It is right that an offender may start with a very relaxed regime but a court may take the view on investigation that although the breach of those requirements justifies the imposition of a much tighter regime, it does not require one of the four penal sanctions. Amendment 16 would allow the court to recommend to the Secretary of State that the requirements be varied. Why should they be varied on the Secretary of State’s recommendation? It is because the notice imposing requirements comes from the Secretary of State by virtue of new Section 256AA. I accept that it is therefore right that the court’s power should be to make a recommendation for the Secretary of State to vary the requirements rather than to make an order imposing such a variation. The proposed scheme allows the court much more flexibility than it has under the Bill as drafted. That flexibility would both be useful and advance the cause of rehabilitation.

Amendments 13 and 17 are designed to ensure that the courts have some guidance about the proper response to a breach. Noble Lords will remember that at Second Reading, concerns were rightly expressed by a number of Peers, including the noble Lord, Lord Beecham, and the right reverend Prelate the Bishop of Newcastle, that the purpose of the Bill, which is rehabilitation, might be frustrated by the excessive imposition of sanctions for breach. As the Bill is presently drafted, the court has no indication as to when it ought or ought not to impose a sanction. Amendment 13 would give a clear direction as to what should be the court’s approach to a breach of supervision requirements. It would impose a threshold test so that the power to impose sanctions would be exercisable where the court was satisfied that the interests of justice require a sanction to be imposed. While I accept that it may be said that that can be inferred from the permissive nature of the power, it seems to me that the purpose and the test should be expressed on the face of the Bill. Amendment 17 would help to secure some policy consistency and uniformity in the imposition of sanctions by requiring that the Sentencing Council should publish guidelines in respect of the imposition of sanctions for breach of supervision requirements.

These amendments introduce flexibility to allow for the appropriate treatment of individual offenders and individual cases of breach. They are in the interests of

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rehabilitation which the Bill is designed to promote. They do not undermine the policies which the Secretary of State outlined yesterday and which he rightly wishes to implement in pursuit of that policy. I therefore invite my noble friend the Minister and his department to consider them on that basis. I beg to move.

Baroness Howe of Idlicote: My Lords, my Amendment 14, which is very similar in many ways to the amendment moved by the noble Lord, Lord Marks, would help to ensure that the purpose of the new supervision period is primarily rehabilitative by removing custody as a sanction for technical breach of requirements. It would retain the sanctions available to the courts of imposing a fine or a supervision default order imposing either an unpaid work requirement or a curfew requirement. The option of recall to custody for breach of conditions during the licence period is unaffected.

The Prison Reform Trust—it is good to see the noble and learned Lord, Lord Woolf, in his place—has had many tributes paid to it to which I add my own for the invaluable work it does in the whole of this area. It is particularly concerned that, without additional safeguards, the proposals will result in an increase in breach and recall to custody, which will drive up the short sentenced prison population. As the Transforming Rehabilitation consultation acknowledges, many people serving short prison sentences have complex and multiple problems, including homelessness, unemployment, drug and alcohol addictions, mental health needs and learning disabilities. This in turn increases the likelihood of breach and recall to custody if sanctions imposed for non-compliance are too onerous or the period of licence or supervision is too long.

By limiting custody as an option for breach, the amendment should help to reduce the costs of extending statutory supervision to short sentenced prisoners. The risk of breach and recall to custody is acknowledged but not quantified in the impact assessment. It states:

“There will be court costs associated with breaches of this provision and costs of providing sanctions for these breaches. These will include additional pressure on the prison population arising out of offenders being recalled to custody and further electronic monitoring starts. Initial estimates of these costs are of the order of £25 million per year”.

In addition, the impact assessment states:

“There may be an additional burden to the police from extending supervision in the community to offenders released from custodial sentences of less than 12 months, as police time will be needed to deal with offenders who fail to comply with the conditions of supervision. Our initial estimate is that this could cost up to £5 million per year”.

The rise in the number of recalls has been identified by the Ministry of Justice as a key driver of the growth in the prison population over the past two decades. The recall population has grown rapidly since 1993, increasing by more than 55 times. The recall population increased by 5,300 between 1993 and 2012. Growth in the recall population began in 1999, reflecting the change to the law in 1998 which extended executive recall to medium-term sentences—12 months to less than four years.

6.45 pm

There is a significant risk that extending recall to custody as an option for breach of the new supervision requirements for short sentenced prisoners could have

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a similar impact on the short sentenced prison population. This would be counterproductive to the rehabilitative aims of the proposal, given the poor record of prison at reducing reoffending, particularly by short-sentenced prisoners. Reoffending by offenders sentenced to less than 12 months in prison is estimated to cost the economy up to £10 billion annually and 57.6% of prisoners sentenced to 12 months or less reoffend within one year of release. For those who have served more than 11 previous custodial sentences, the rate of reoffending rises to 68%, which is a horrific figure. By contrast, community sentences for 18 to 24 year olds outperform prison sentences by 12.8 percentage points in reducing reoffending. Even when offenders of all ages are closely matched in terms of criminal history, offence type and other significant characteristics, the performance gap remains a robust 8%.

In the summary of responses to the Transforming Rehabilitation consultation the Government acknowledge that “many” respondents suggested that return to custody should,

“only be available as a final option after other sanctions had failed, rather than an automatic response in every case”.

The Government then state:

“The conditions attached to mandatory supervision will be geared towards rehabilitation rather than punishment, with discretion for providers to identify the activities that should be carried out. We propose to adopt a range of sanctions to address non-compliance with supervision, only recalling offenders to custody as a final measure”.

That is partly reassuring and I was rather more reassured after the meeting we had yesterday on these and other issues. However, despite these assurances, very little provision is made in the proposed legislation to ensure that custody will be imposed as a last resort in response to breach of the supervision requirements. Subsection (4) of new Section 256AC sets out the sanctions available to the court where it is proved to the satisfaction of the court that the offender has, without reasonable excuse, failed to comply with a requirement during the supervision period. These include committal to prison for a period not exceeding 14 days, a fine and a supervision default order imposing either an unpaid work requirement or a curfew requirement. There is nothing in the legislation which guarantees that custody will be imposed only as a final measure. I very much hope that the Minister will be able to reassure us further on these points.

Lord Woolf: My Lords, as regards the practicalities of this issue, as mentioned by the noble Lord, Lord Marks, and the noble Baroness, Lady Howe, it is important to provide greater flexibility to deal with breaches. Many of the offenders whom the Bill is intended to help to go straight have deep problems which are often associated with drugs. It would be a huge achievement if these offenders were able to keep out of trouble for part of the 12-month period. Sending them into custody would be most unfortunate and would fail to give them the further opportunity they may need. Support can be much more helpful in these circumstances than something that is more in the nature of a sanction. Sanctions are important in appropriate cases, but other approaches are sometimes more constructive.

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Lord Beecham: My Lords, I join the noble and learned Lord and the noble Baroness, Lady Howe, in supporting the amendments spoken to by the noble Lord, Lord Marks, which would help considerably. The noble Baroness’s amendment would remove the capacity to order a person in breach to be committed to prison. She said that there was no provision in the Bill for this measure to be used as a last resort. That is the substance of my amendments in the next group. It may be convenient for me to speak to those amendments now as I am advised that that is possible. It makes sense to do so, as my Amendments 15 and 18 would qualify the provision in new Section 256AC(4)(a) within Clause 3 by providing that a sentence for breach not exceeding 14 days is to be treated as a last resort. I hope that meets the point raised by the noble Baroness. Concerns were expressed about this provision in the consultation document, which the Government acknowledged in their response. However, as yet, their response has not been reflected in the Bill. In my submission, it would make sense to add that qualification, so that, in addition to the provisions in the amendments spoken to by the noble Lord, Lord Marks, the right of the court to impose a custodial sentence of up to 14 days would be preserved but it would be stated explicitly in the Bill that it is to be used only as a last resort. That is the sort of declaratory statement to which the noble Lord has referred in earlier debates.

Is the Minister in a position to indicate the anticipated number as regards the recall provision? I could not find it in the impact assessment. He may not be in a position to do that. However, the noble Baroness rightly referred to the very large increase in this regard—the 55-fold increase—in the past 20 years, most of which, as she rightly says, occurred over the past 14 years. Many of the custodial sentences for breach are imposed on young offenders. Indeed, the Prison Reform Trust has reported substantially on that problem.

I suspect that there is no great distance between the Minister’s position and that set out in the amendments of the noble Lord, Lord Marks, and in my Amendments 15 and 18. I would welcome the Minister indicating tonight or on Report that those measures will be included in the Bill, with the appropriate wording. The noble Baroness rightly referred to concerns about there being an increased readiness to impose custodial sentences for breach and the cost of this in material terms and, potentially, for offenders and the rehabilitative process. This is not a clear-cut issue and there are clearly arguments on both sides but I have heard concerns expressed by a senior member of the Magistrates’ Association as well as by the noble Baroness and other organisations. Accepting these amendments would go a long way to relieve those concerns while still leaving the court with the ultimate power to impose a custodial sanction as a last resort.

Lord McNally: I thank noble Lords who have taken part in this debate. Perhaps I could cover numbers and costs in the revised impact assessment that I will bring back to the House.

I say to the noble Lord, Lord Beecham, and the noble Baroness, Lady Howe, that I certainly do not want to see any benefits gained from a successful rehabilitation programme being dribbled away in the

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costs incurred through dealing with breach. That would be very self-defeating indeed and we must look carefully at that. However, although this is a wonderful Chamber in which to discuss these problems, I sometimes think that we try too hard to be understanding on these issues. In trying to understand all these terribly complex problems with which these people are faced, we do not face up to the fact that they have a choice. As I have said in previous debates, I remember from my childhood young people who experienced in their upbringing many of the problems we talk about in this House but who nevertheless grew up to be honest, decent, honourable members of society. It is a choice.

In our efforts to understand, I sometimes think that we leave some of these offenders with the belief that the gun is never loaded and that they will never have to face the consequences. As the noble Lord, Lord Ponsonby, has said in earlier debates, some offenders who have been given every chance, shown every understanding and been offered every opportunity still appear before the courts and the magistrates have no alternative. I am as willing to be as woolly a liberal as the next man, but we must also send a very clear message that as a society we do not intend to tolerate anti-social and criminal behaviour without a firm response. If we do not do that, some of the characters we are trying to deal with will never apply themselves to the offers we are making them that we hope will help them put their lives together again.

7 pm

I will try to deal with the various amendments, and I accept with alacrity the kind offer of the noble Lord, Lord Beecham, to reschedule his amendments into this group. I turn first to Amendment 14 from the noble Baroness, Lady Howe. Its effect is simple to understand: it would remove the power of the court to commit an offender to custody for failing to comply with the conditions of their top-up supervision. I do understand concerns about the risk of some offenders ending up back in prison for breaching their supervision conditions. We should, however, not lose sight of the fact that far too many of these offenders are already ending up back in custody because they have been released without any conditions and have gone on to reoffend.

There has to be a balance between the need to ensure there is some grip on offenders under supervision and the need to keep them out of custody and on programmes designed to rehabilitate them. The Bill gets this balance right. First, there is discretion for supervisors to warn offenders before bringing breach action. Secondly, the decision to bring breach action will always be taken by the public sector. It is not in the interests of the public sector to have lots of offenders recalled to custody, which we all know is expensive.

Then we have the need in the Bill to demonstrate to the court that a breach has occurred and with no reasonable excuse. The court can find there has been no breach or that there was a reasonable explanation for the breach. Only when it is satisfied that there has been a breach can the court decide on the action to take on the breach. I would stress to the noble Baroness that the court may decide that, despite there being a breach, no sanction should be applied to the offender.

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This is because Clause 3 creates new Section 256AC (4) of the 2003 Act, which states that, if there has been a breach, a court “may”—not “must”—impose a sanction. I am quite sure that my noble friend Lady Hamwee will make that part of her bedtime reading because she likes to go back and check whether we have got this exactly right.

Even when the court decides there should be a sanction, it has three alternative options to consider before it decides to commit an offender to custody. If it does commit to custody, the maximum period available to the court is 14 days and this period does not amount to a new sentence, meaning it does not trigger a new period of supervision. As I say, I recognise the concerns about returning people to custody, but we have to put these safeguards in place. We also need to give the courts a range of sanctions that are effective in punishing an offender for breaching conditions and in getting the offender back on to the rehabilitation activities as soon as possible, which is the intention of the supervision period.

The noble Baroness’s amendment would create an inconsistency with existing powers. This is because the courts can already commit offenders to custody for failure to pay fines or for failure to comply with requirements of community orders. It would, I suggest, create an anomaly that courts were able to commit to custody for lesser sentences but were not able to do so for breach of conditions attached to more serious sentences involving custody. I hope my reassurance on the safeguards and the discretion given to the courts, reassures the noble Baroness so that, at the appropriate time, she will not move her amendment.

I now turn to Amendments 13, 16 and 17, proposed by my noble friends Lord Marks, Lord Dholakia and Lady Hamwee. Amendment 13 adds a qualification that the sanction for breach of top-up supervision may be imposed if the court is satisfied that the interests of justice so require a sanction. I hope that I have already made clear that the provision as drafted gives the court an option to decide not to impose a sanction even if a failure to comply with the condition has been demonstrated. This is because the court may impose a sanction for a breach but does not need to. The addition of an “interests of justice test” is unnecessary as the court already has the discretion to decide not to impose a sanction and would do so only if it felt it necessary. In other words, the court already has discretion to decide whether to sanction in the interests of justice.

Amendment 16 would mean that the court considering a failure of the offender to comply with top-up supervision conditions could recommend to the Secretary of State that the supervision conditions should be varied and suggest ways in which they may be varied. It will remain for the Secretary of State to set licensing conditions and now to set the new top-up supervision conditions. This is a continuation of what happens now with offenders serving longer sentences that already attract release on licence and is the most practical approach to setting conditions of supervision. However, I take my noble friend’s point that there may be circumstances in which a court dealing with a breach can point out that the rehabilitation of the offender might be better addressed by a variation of the Secretary

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of State’s supervision conditions. That seems a sensible and practical suggestion and I will take it away and examine the technicalities of the process and return to this at a later stage.

Amendment 17 would create a statutory duty on the Sentencing Council to publish guidelines with regard to the court’s powers to deal with failure to comply with supervision conditions. I expect that the independent Sentencing Council will want to provide guidance on the treatment of breaches as it does, for example, on breaches of other orders. I also expect that this will be a key element of the training for the judiciary that the Judicial College will want to provide. As noble Lords will know, the Sentencing Council is an independent body set up and governed by the provisions of the Coroners and Justice Act 2009. Apart from two specific general matters relating to sentence calculation, the Act, does not specify what guidelines the council must produce.

There is already a power for the Secretary of State or the Court of Appeal to refer to the council any matter that it considers the council should consider issuing guidelines on. It is also open to any other person to make representations to the council about guidelines. I have already said that I would expect that the council will consider guidance for the courts in this area, but my noble friends will also appreciate that I am anxious to maintain the independence of the Sentencing Council. I would not want to encourage every Bill coming before the House to have a provision that required the council to issue guidelines on matters affected by it. I am confident that the council will consider the provisions of this Bill and issue any guidance it considers necessary. I hope that my noble friend will understand that reassurance and feel able to withdraw his amendment.

I turn to Amendments 15 and 18 from the noble Lord, Lord Beecham. Are those the ones? That is good. I know that it throws everything into confusion if you move them out of order, but I will do my best. As I said in relation to the previous group of amendments, and particularly that in the name of the noble Baroness, Lady Howe, I understand the concerns about the risk of some offenders ending up back in prison for breaching their supervision conditions and I understand why a number of noble Lords have expressed concern about this. The approach taken by these amendments is somewhat different from that taken by the noble Baroness, Lady Howe, in the previous group in that rather than remove the option of committal to custody, they insert a provision which requires the committal to be a last resort after all other means of dealing with the breach have been exhausted by the court.

As I have outlined already, there are a number of steps to reach before the offender will be committed to prison. So there is an option for courts to take no action at all before they consider the four sanctions available to them. There is no hierarchy of sanctions here. It is for the court to decide what the most appropriate sanction is for any particular breach of conditions. Of course, committal to custody is an onerous sanction, but the courts will be aware of this and will take that into account in deciding the appropriate and proportionate response to any breach.

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It is not necessary to set out the concept of the use of committal as a last resort and I would point out that it is not clear exactly what that would mean. I also suggest to the noble Lord, Lord Beecham, that Amendment 18 is unclear about what amounts to exhausting all other matters. Does it mean that a court must first use the option of imposing no sanction, then a fine for a further breach? It seems simply to be impractical and unduly restrictive on the discretion of the courts. There will also be offenders who will fail to comply with conditions in such a way that will justify committal to custody as a first response. I suggest to the noble Lord that we have some faith in the ability of the judiciary to make reasoned, proportionate and sensible decisions about breach, and I ask him not to move his amendments.

Having listened to the debate and heard the tenor of my reply, I hope that the House will believe the point that the noble Lord, Lord Beecham, made that there is not a great deal of difference between us on this. I hope that I have demonstrated that in the way that we are approaching this matter we are providing the supervisors at every stage of this process with a great deal of discretion. However, we must face up to the reality that there will be those who, by their response to the assistance that they are given, will provoke the only response that we can make—to return them to prison. I hope, however, that it is also clear that we provide this wide discretion. This area is not a matter of punishment but real assistance to those who are willing to receive it. There should be a real commitment by society to make it clear to those who are in this process that we mean it and that we expect them to mean it too. I ask Members to withdraw their amendment.

Baroness Hamwee: My Lords, before my noble friend responds, I should deal with the terrible slur from the Front Bench about the narrowness of my bedtime reading. In fact, my bedtime reading at the moment consists of Caroline Shenton’s book, The Day Parliament Burned Down—a wonderful book that the Minister himself recommended to me.

Lord Marks of Henley-on-Thames: My Lords, first, I am grateful to my noble friend for indicating that he will consider Amendment 16 and come back to the House on it at a later stage. I am also grateful for his assurance that he has great confidence that the Sentencing Council will indeed publish the guidelines, and I quite understand his reason for not wishing that to be included in the statute because of the danger of compromising that body’s independence.

As to the lead amendment in the group, while I completely appreciate the Minister’s position that “may” is discretionary—I have no doubt that my noble friend Lady Hamwee, notwithstanding her additional bedside reading, will confirm my view when she has considered the response—I still feel that setting a test for the use of discretion might be helpful. Perhaps the Minister will consider that also. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14 not moved.

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Amendment 15

Tabled by Lord Beecham

15: Clause 3, page 3, line 39, at beginning insert “subject to subsection (7A),”

Lord Beecham: My Lords, I have to reassure the Committee that my bedtime reading does not consist of “50 Shades of McNally”.

I regret the dismissal of the purpose of my amendment, even if the wording might be improved, because it is important, as the noble and learned Lord, Lord Woolf, said in another context and as I reminded your Lordships, that a declaratory phrase be used to clearly indicate that the court should not be quick to impose even a 14-day sentence. It should be implemented only after full consideration of such a measure. The experience of committal for breach for young offenders, to which I have alluded, lends some force to the suggestion that a clear message be sent that such a provision ought not to be lightly adopted. Not all benches would do that in any case, and obviously the court on which my noble friend Lord Ponsonby sits is not cavalier in its approach, and I doubt whether many courts would be. Nevertheless, a declaration of the sort suggested would have been helpful. However, in the circumstances, I shall not move the amendment.

Amendment 15 not moved.

Amendments 16 to 18 not moved.

Clause 3 agreed.

7.15 pm

Schedule 2 : Supervision default orders: new Schedule 19A to Criminal Justice Act 2003

Amendment 18A

Moved by Lord Beecham

18A*: Schedule 2, page 23, line 27, at end insert—

“(1A) An offender subject to a supervision order under section 199 (unpaid work requirement) shall not be required to work unpaid for a private sector employer.”

Lord Beecham: My Lords, the amendment relates to new Schedule 19A, which deals with supervision default orders and incorporates new provisions in the Criminal Justice Act 2003. The amendment addresses the issue of the unpaid work requirement embodied in new sub-paragraph (2)(a).

It is a straightforward amendment that might not be necessary. To be frank, I do not know the Government’s current thinking or, for that matter, the present state of the law. However, if unpaid work is to be required it should not be to the profit of a private sector organisation that is in the business of, perfectly legitimately, generating profits. If unpaid work is to be done, it should be for a public body or a social purpose. Obviously it is important that people have the opportunity to develop skills. It is also good that the discipline of work should apply. That is very much part of the rehabilitation process, which is not always easy to achieve. Unpaid work

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might be very helpful in that respect. However, I repeat that it would be wrong if that work were to the financial advantage of a profit-making organisation. One could well envisage placements with voluntary organisations, local authorities or whatever, which would be perfectly reasonable and satisfactory.

I hope the Minister can assure us about that. Otherwise, we might have to return to this issue on Report because it is an important point. We hear too much of what can only be described as bogus apprenticeships, shelf-stacking and the rest of it under the Work Programme. One does not want to see that kind of work, particularly if it is unpaid, being imported into this agenda. It is desirable that the range of activities that might be encompassed within such a programme benefits the offender and perhaps society. It would be wrong if financial benefit was thereby given to a private business. I beg to move.

Lord Ahmad of Wimbledon: My Lords, I thank the noble Lord and I can from the outset assure him, as is clear in all these matters, that the objective is not for any operator to make profit from such work. My understanding of the purpose of the amendment is that it would prevent any offender who is carrying out unpaid work as a sanction for breach of a supervision requirement from doing that unpaid work for any private sector organisation. I would make a number of points in response to the noble Lord.

First, as noble Lords will know, we intend to open up the delivery of unpaid work, along with other services for offenders in the community, to a wide variety of organisations. This will include the private sector. However, the model for private sector organisations’ delivery of unpaid work would, I should make absolutely clear, not involve the offender working directly for them. The private provider would be responsible for organising the community work and supervising the offender’s progress. Unpaid work is intended to be of benefit to local communities. The private provider would make arrangements with a local authority, community group or charity for the actual work to be carried out. The private provider may also subcontract another organisation to deliver the unpaid work. This may be particularly important for women offenders or offenders with particular needs, such as learning disability. In these cases a smaller organisation within the community with the relevant expertise is much better placed to arrange the unpaid work.

However, the amendment might prevent private providers even from making arrangements with other bodies to deliver unpaid work. Consider the case of a private provider with responsibility for supervising offenders carrying out unpaid work and that wants to make arrangements for placements with a local charity or community group. The amendment could prevent the private provider from doing so, although I am sure that this was not the intention of the noble Lord, Lord Beecham, in tabling the amendment.

Unpaid work can fulfil a number of purposes. As part of a community order or suspended sentence it provides a credible punishment, but it can also help offenders to learn new skills or disciplines of work. The noble Lord, Lord Beecham, raised this important issue. Too often offenders are looked at in a particular

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way, but some lack the basic ability to turn up at a given time to serve a particular number of hours. We need to help develop these basic skills and mindsets.

Unpaid work is also reparative, allowing offenders to pay back the harm done by their crimes to the wider community. This is equally true of unpaid work carried out under supervision default orders. It is a sanction for the breach, but this is not to say that it cannot also support the offender’s rehabilitation, or allow them to put something back into the community they have harmed.

My point here is that unpaid work needs to be meaningful, whether it is carried out as part of a community order or as a sanction for the breach of supervision requirements. Even if it is imposed as a sanction for a breach, the work needs to be of sufficient quality. This remains true whether the provider is a private sector organisation, a charity or the public sector. For this reason I do not believe this amendment’s singling out of private sector organisations to be the right approach. The key issue is ensuring that whoever delivers unpaid work does so to the appropriate standard. We will ensure that our new arrangements deliver this. For these reasons I hope the noble Lord will see fit to withdraw his amendment.

Lord Beecham: My Lords, I cannot say that I am terribly happy with the noble Lord’s response. It seems to me that there is almost a moral issue here about what is in effect the exploitation of unpaid labour. There is already some concern about the degree to which this now forms part of the process of imprisonment. Bringing in unpaid work has a potential impact on competitor organisations that do not have the advantage of cheap labour, or as in this case unpaid labour. If private sector employers are to be engaged in the process of assisting rehabilitation by providing work—and there is no reason why they should not be—it is incumbent on them to pay for that labour. There is no reason why they should not pay at least the minimum wage. It seems wrong that they should benefit from this process.

I regret the Minister’s response. I invite him to think again about this, as it is not satisfactory. Otherwise we might have to return to it on Report, because it strikes me as a wholly inappropriate response. There are many opportunities outside unpaid work in the private sector that would encourage the rehabilitation that we all want to see. The Government should rethink their position on this issue.

Lord Ahmad of Wimbledon: My Lords, perhaps I may clarify this. The noble Lord’s point about paying someone who is caught up in one of these arrangements or rehabilitation schemes is a slightly separate one. I emphasise that the amendment as tabled would prevent the private sector from providing any kind of service as part of the rehabilitation process. I have made the point, which I wish to underline, that the private sector organisation is there not to make any profit. As I have said, the person actually performing this particular arrangement within the community would be doing so

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as part of their rehabilitation. The issue about whether that person should be paid or unpaid is a slightly separate matter.

As the noble Lord has said, we will come back to this. For the benefit of the Committee I would like to clarify that many offenders are currently subject to unpaid work. Currently, around 60,000 offenders have successfully completed community payback sentences, for example. That is 7 million hours of work on projects that directly benefit local communities. To be clear, the intention is that any unpaid work is of benefit to the community and to the individual as part of their rehabilitation process. The underlying objective is not for any provider, whether private or otherwise, to make a profit from that arrangement.

Lord Beecham: I am grateful for the noble Lord’s most recent remarks, although the points that he made did not really come across when he previously addressed the matter. There is perhaps not the great difference between us that I had perceived. However, it would be better, if the noble Lord agrees, to go back and look at how the Bill might be worded to deal with this situation, which I now apprehend does not really divide us.

I am well aware of community payback schemes, and I see them in my own ward. They are very valuable and seem to me to be the right approach, although not necessarily in exactly the same form. I sense that really we agree about the notion of people carrying out work for a profit-making organisation on a profit-making project, in which case perhaps the noble Lord would look again at the amendment and see whether we can come up with something on which we can agree. Having said that, I beg leave to withdraw the amendment.

Amendment 18A withdrawn.

Schedule 2 agreed.

House resumed. Committee to begin again not before 8.28 pm.

Burma

Question for Short Debate

7.28 pm

Asked by Lord Alton of Liverpool

To ask Her Majesty’s Government what assessment they have made of the progress being made in Burma to end ethnic tensions and to secure democracy.

Lord Alton of Liverpool: My Lords, just over a year ago on 21 June, Daw Aung San Suu Kyi addressed both Houses of Parliament in Westminster Hall. There was an understandable sense of euphoria and a sense of “problem solved”. Daw Suu now sits in the Burmese Parliament rather than under house arrest. Hundreds of political prisoners have been released and ceasefires have been agreed with most of the country’s ethnic groups. Space for media, civil society and political actors has increased significantly, and in two years’ time Burma will have elections. Sanctions have been lifted, and Burma’s President, Thein Sein, is travelling the world, feted by world leaders. Only this week the BBC World Service became the first international

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media organisation to deliver news on a mobile platform in Burma, where it has some 8.4 million listeners. Does this not imply that the problem is solved? Is it not time to move on and focus on the world’s other problems?

During a recent visit to Burma it became clear to me that the euphoria is premature, misplaced and profoundly dangerous, a point I made at Question Time earlier today. During that visit, Daw Suu told me—I shall quote her exact words—that some countries are,

“going overboard with optimism, making the government think that it is getting everything right”.

She said that we must be less euphoric and more realistic, and that nations such as ours must get their response right. This should include a rather better and sympathetic understanding of the constraints which are still being placed upon Daw Suu herself.

To explore those issues, I tabled today’s Oral Question and this Question for Short Debate, and I am grateful to all noble Lords who are participating tonight. The focus is on ethnic tensions and the limitations of recent developments. The immediacy of those challenges was underlined by the anti-Muslim violence last week in Lashio in Shan state, which also involved attacks on journalists trying to document what occurred. Mosques, schools and shops had been burnt down, and violence took place in more than 18 townships hundreds of kilometres apart from one another.

As I saw during my visit, partly facilitated by Christian Solidarity Worldwide, and from its reports and those of Human Rights Watch, if the challenges posed by ethnic violence are not addressed, they have the capacity to derail Burma’s evolution from military dictatorship into a plural, federal democracy. I met representatives of the Rohingya and the Kachin, whose home states are the two of the bloodiest theatres of ethnic violence. Over the past year, some 192 people have been killed and 140,000 displaced in Arakan state.

The plight of the Muslim Rohingya people is well documented, most recently by Human Rights Watch in its chilling 150-page report, All You Can Do is Pray. It details mass graves from violence that swept Arakan state in June and October last year. At a meeting on 21 May, the All-Party Parliamentary Group on Burma considered that report, along with the first-hand account of Rushanara Ali, the Member of Parliament for Bethnal Green and Bow, who had recently been in Arakan state.

The Rohingya are among the most persecuted and marginalised people in the world, and they are now facing an intensified campaign of ethnic cleansing. This week, Channel 4 highlighted the plight of thousands of displaced Rohingya who have been forced to flee to Thailand, where they are held in deplorable conditions in detention centres. When the Minister comes to reply, I would be grateful if she could tell us what representations have been made specifically arising out of that report by Channel 4.

I first raised the plight of the Rohingya in your Lordships’ House on 17 July 2006, when I urged the Government to co-ordinate an approach to the United Nations, and I asked that that should be done particularly with Islamic countries to raise the plight of the Rohingya and the deplorable conditions in the refugee camps.

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They are the perfect breeding ground for nurturing a generation of alienated and hostile jihadists. I have repeatedly urged the Government to take action: five parliamentary interventions in 2010, twice more in 2011, again in 2012—and on 28 February this year, I asked the noble Baroness, Lady Warsi, whether she would,

“confirm that since 2012, around 5,000 Rohingya Muslim people have been murdered and that many thousands have disappeared”.—[

Official Report

, 28/2/13; col. 1157.]

I also urged her to mediate a visit by the United Nations special rapporteur on religious liberty to Arakan state. She and I agreed that the Rohingya are living in a system of 21st century apartheid with their citizenship rights having been formally stripped from the constitution. The years, the months and the weeks have passed by, but there has been very little sense of urgency among or a coherent, determined response from the international community.

Six weeks ago, through five further Parliamentary Questions, I again raised the conditions in the camps. I asked about the core issue, the question of the Rohingya claim to citizenship. The Government of Burma need to repeal the 1982 citizenship laws which stripped the Rohingya of their citizenship, rendering them stateless. They need to introduce a new citizenship law in line with international norms. They should also be challenged for trying to impose a two-child policy on the Rohingya, which in the past seven days Daw Suu has described as, “illegal and against human rights”. Perhaps the Minister can tell us whether the Government would be willing to encourage the establishment of two independent inquiries: one through the United Nations to investigate the violence in Arakan state last year and to assess whether crimes against humanity have been committed, a phrase that was used in your Lordships’ Chamber earlier today by the noble Baroness, Lady Kinnock; and the other perhaps consisting of independent academics and other experts to assess the historical basis for the claims of the Rohingya in order fully and conclusively to address the claims of the Government of Burma and many in Burmese society that the Rohingya are, as they put it, illegal Bengali immigrants. Years of misinformation about the Rohingya in Burma need to be countered with a full, comprehensive and independent assessment of the history and the facts, if the suffering of the Rohingya is ever to end.

Similarly, as part of a serious peace process, Thein Sein’s Government must end the Burmese army’s offensive against the Kachin people. While it is to be welcomed that the Government of Burma have agreed ceasefires with many of the ethnic armed groups, over the past two years they have inflicted a very serious offensive against the Kachin people in north Burma. Last week, Ban Ki-Moon welcomed the agreement reached between the Government of Myanmar and the Kachin Independence Organisation, calling it a first step towards reconciliation in the country. Perhaps the Minister can share with us the details of the seven-point agreement and her assessment of its durability.

Over the past 18 months, a number of fragile preliminary ceasefires have been agreed. However, there is a need not only for a ceasefire, but for a peace process. As one Karen put it, “A ceasefire is simply pressing the pause button, and we need to find a way to press the stop button”. That can be achieved only

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through a peace process that involves a meaningful political dialogue with the ethnic nationalities to find a political solution to decades of war.

The military campaign which began two years ago has led to the displacement of 100,000 Kachin civilians, at least 200 villages being burnt to the ground, and 66 churches destroyed. Grave human rights violations have included rape, torture and killings. A recent report by Christian Solidarity Worldwide detailed the story of one Kachin who had been jailed for a year. During his interrogation, he was hung upside down for a day and a night, beaten severely, mutilated with hot knives, and a grenade was shoved into his mouth, his torturers threatening to pull the pin. One Kachin has said that, “The impact of the war this time has been enormous. Many have lost land, plantations, livelihoods ... people are living in the middle of nowhere, hopeless, desperate, suffering”. What are the Government doing to encourage the Government of Burma to develop a serious political dialogue with the ethnic minorities? Those nationalities comprise 40% of the population, inhabit 60% of the land, and live predominantly along the country’s borders in some of the most resource-rich areas that lie along the major trade routes. It is therefore in Burma’s own interests, and those of the international community, to see decades of war end and peace and stability established. That can be achieved only through real political dialogue. So far, the changes on the ground in Burma, welcome though they are, amount primarily to a change of atmosphere rather than a change of system.

I want to end by returning to the recent and shocking rise in religious intolerance, hatred and violence. During my recent visit, I visited a Muslim community in a village called Ayela, two miles from Naypyidaw, which is the new capital. I arrived just three days after a large mob of Buddhists from another area had attacked the village. In this particular case no one was injured or killed, but only because they were able to escape. In many other places, notably Meiktila and Oakkan, there has been appalling loss of life. The tragedy is that, previously, the Buddhists and Muslims had lived together for 200 years. However, someone said to me, “We don’t even dare greet each other in the street”. There are various theories about why this wave of anti-Muslim violence has erupted. I would be interested to know what role the Minister thinks that the militant group known as “969” has played.

I end by saying this. I have made three earlier visits to Burma, the first 15 years ago, illegally into Karen state. I am honorary president of the charity, Karenaid. That I can now visit legally and meet ethnic leaders and democracy activists is a small but welcome harbinger of change. However, the international community has a responsibility to do all it can to help in the effort to bring about fundamental change.

7.38 pm

Lord Patten: My Lords, Burma is at grave risk of joining the list of permanent world trouble spots as a failing state. On present trends, it is sinking fast into a terrible cesspit of racial violence and ethnic cleansing, as the noble Lord, Lord Alton, has just portrayed so

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graphically; he knows much more about it than I do. I believe that Burma desperately needs three things. First, it needs enlightened and outspoken healing democratic leadership; secondly, it needs a miraculous outbreak—I believe in miracles—of religious understanding and human decency between Buddhist, Muslim and Christian alike; and, thirdly, its people need to recognise that unless they bring about stability, they will fail to hoist themselves out of poverty through economic development, something that is achievable within a generation.

On the first point, with hindsight it seems much easier in Burma, as elsewhere, to foment change out of a repressive regime than to embed the further necessary changes thereafter. Remember the soundbite delights of the so-called Arab spring a couple of years back. Tell that to the Copts in Egypt or the Christians in Iraq or Iran alike. Where are the outright and immediate appeals to human decency from the heroines and heroes of recent political change in Burma? They are sadly but understandably muted so far.

Secondly, there is no evidence at all of an outbreak of religious understanding in the face of Burmese, Burman and Buddhist persecution of Muslims and Christians, increasingly led—surprisingly, as they are religious—by some gung-ho Saffron Revolutionary Monks, such as the Venerable Wirathu, who said after last week’s burnings and killings, which spread on 29 and 30 May to the north-eastern town of Lashio, to which the noble Lord, Lord Alton, has already referred:

“The Rohingya there burned down their own houses so that they could live easily in the refugee camps”.

He then went on to say that the burnings and killings by Buddhist mobs in Meiktila was “forgivable”. The story is similar for the poor Baptists and others in Kachin, who look as though they will face the fate of the Kurds in ever more repressive Turkey, as we have seen in recent days in that country. To an outsider like me, it looks as if the lessons of these recent changes in Burma simply express that it is best not to be a minority of any kind at all. The world community and the Minister need to show a lead in this.

Thirdly, one can only hope that economic change can ride to the rescue as the majority of hard-working, decent Burmese of all religions realise that this increasing endemic violence will prevent their experiencing the rapid advances out of poverty that an Indonesia or a Thailand managed so quickly in a couple of decades. The Burmese could grow their economy by four or five times over the next 25 years with all the inward investment that is needed to build a new deep-water port at Dawei or roads into Thailand. It is a country that I read may soon experience the delights of having a Coca-Cola bottling plant, but it will be among pitiful poverty, with hardly an ATM in sight and hardly any mobile phones or the other things that increasingly power democracy through the messages that they send.

Maybe, in the end, the realisation that they can lift themselves out of poverty will produce that national miracle where there is, as yet, neither much uplifting political leadership or an outbreak of human decency among majority and minority groups. It could well be the engine of social cohesion and national salvation for Burma—something I never thought I would say of economic growth.

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7.43 pm

Baroness Nye: My Lords, I declare an interest as a board member of the Burma Campaign UK and I thank the noble Lord, Lord Alton, for arranging this timely debate and for his tour de force on the situation in Burma now.

As the recent McKinsey Global Institute report says, Burma is an unusual country in that it,

“remains an underdeveloped agrarian economy in the heart of the world’s fastest growing regional economy ... one of the few remaining largely untapped markets in the world”.

It has many potential drivers of growth and areas that foreign investors can target, but foreign investment will succeed only if there is a politically stable environment in which to do business. That means that human rights cannot be ignored in the rush to be in at the beginning of an expanding economy.

Following some initial positive steps by the Burmese Government in April 2012, the EU decided to suspend economic sanctions, which had gradually been introduced over the past 20 years. However, the EU specified four human rights benchmarks that would need to be met as a way of marking progress before it would consider lifting sanctions entirely. But two months ago the EU did lift sanctions entirely, seemingly without any regard to those benchmarks at all, as most human rights organisations report that the situation has deteriorated. I hope the Minister will agree tonight to publish any review of the benchmarks the Government have conducted which showed that they had been met, and explain why the Government did not support proportionality or a gradual suspension as and when those criteria had been met.

Take the issue of political prisoners, which is being kept under constant review by the Burma Campaign UK. The release of political prisoners has been used repeatedly by President Thein Sein to coincide with a foreign visit to show that reform is ongoing. None of those released prisoners has received any kind of medical care, compensation or acknowledgement that they should not have been in jail in the first place. They still have criminal records with their sentences suspended and no full pardons, not the unconditional release referred to in the EU benchmark statement. Those released are still subject to restrictions on their freedom, including on travel and future political activity. The repressive laws that sent them to jail in the first place are still in place so, as the already incarcerated are released, more are arrested. The UN special rapporteur, after his visit in February, highlighted not only the ongoing detention of political prisoners but the increasing reports of the use of torture.

The Burmese Government have set up a review committee but questions remain about its composition, mandate, timing and lack of independent international experts. Will the Minister update us on whether the Government have confidence that this committee will finally resolve the issue of political prisoners in Burma? I fear the families of the remaining and the newly arrested political prisoners would beg to differ.

The second benchmark was to end conflict but throughout last year, as the noble Lord, Lord Alton, said, the conflict in Kachin deteriorated, with the Burmese army using air strikes on civilians and rape

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and sexual violence as weapons of terror. With the signing of the seven-point agreement in recent days, there appears to be the basis of a genuine process of reconciliation in Kachin, which is to be welcomed. However, those 75,000 displaced people in Kachin still urgently need humanitarian assistance, which brings us to the third benchmark.

Agencies are still reporting difficulties in gaining access to the IDP camps in Rakhine, and to Kachin and Shan. The situation will get worse for the people in those camps in the low-lying areas during the approaching rainy season. However, as noble Lords have said, the most disturbing development last year was the violence against the Muslim and Rohingya communities. Indeed, on the very day that sanctions were lifted due to the satisfactory progress that the EU decided had been made, Human Rights Watch issued a damning report which documented crimes against humanity and the ethnic cleansing of Rohingya Muslims.

After the violence in Rahkine, the President called for the “illegal Rohingya” to be sent to third countries and transferred civilian power to the military in a state of emergency that was extended last month. The recent news that the 1994 ban on Rohingya having more than two children is being enforced again is a clear violation of their human rights. Does the Minister accept the evidence of the Human Rights Watch report that ethnic cleansing and crimes against humanity are happening in Burma?

Concentrating on the economic opportunities that Burma offers, without parallel regard to human rights issues, means that progress on reform can stall. The exit of Vodafone from bidding to become Burma’s first foreign mobile phone company after seeing the final licence conditions shows the perils of companies trying to do business before the country relaxes its controls on access to information and freedom of expression.

In a recent debate on Europe in this House the Minister applauded,

“the intelligent use of sanctions, which in the case of Burma have been attributed as one of the most effective levers in encouraging the regime to implement democratic change”.—[Official Report, 31/1/13; col. 1695.]

I therefore look forward to hearing from the Minister about what changed her and the Government’s mind about the effectiveness of those levers. As an editorial in the Daily Telegraph—not a newspaper I usually agree with—said, on the day that sanctions were lifted:

“Mr Hague and his EU colleagues have now cast aside all their sticks, leaving themselves with no option but to rely on the regime’s goodwill”.

In the absence of those sanctions, what is the policy of the British Government towards the achievement of human rights in Burma?

7.48 pm

Lord Williams of Baglan: My Lords, I, too, welcome this debate and commend the noble Lord, Lord Alton, for initiating it and also for his long-standing interest in human rights in Burma. I first visited Burma in 1988, a few months after the suppression of the student revolt, which left many thousands of students killed. Brave students—braver than me—whom I met faced subsequent harassment and in many cases imprisonment. I worked then for Amnesty International.

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I have visited Burma many times since, most recently in 2008, following Cyclone Nargis, which ravished the country and claimed more than 140,000 lives. Terrible though that tragedy was, it may well have been a turning point in modern Burmese history, forcing a reluctant and harsh regime to recognise that it could not cope with the scale of the disaster.

When I last visited, 12 months ago, I found a county much changed, despite the continuing human rights violations that the noble Lord, Lord Alton, and others have addressed this evening. That transformation is, I believe, the most significant in South East Asia since the ousting of President Suharto of Indonesia in 1998. Over the past 18 months, we have seen significant progress, although it remains one of the poorest countries in the region and one with a human rights record which, to say the least, needs to be addressed and improved greatly. There has been dialogue between Daw Aung San Suu Kyi and President Thein Sein. The sweeping victories of the opposition National League for Democracy in by-elections last April were described by then Secretary of State Hillary Clinton as,

“a dramatic demonstration of popular will”.

Two weeks ago, in the White House, President Obama received President Thein Sein. As President Obama recognised, the scale of the challenge facing Burma, in a difficult transition to more representative governance, is enormous. The country and its Government need all the international assistance, as well as pressure, that they can receive.

I commend our Government for the support that they have given to Myanmar and its people. In that regard, I believe that Prime Minister Cameron’s visit in 2012 was critically important and I wonder whether the noble Baroness, Lady Warsi, has any news of a return visit by President Thein Sein, when many of the issues that have been brought up here this evening could be addressed. I commend the Government for what they are doing; in particular, DfID’s support in assisting the process of ethnic reconciliation. Can the noble Baroness also say more in that regard? I believe that the UK can, and should, play an important role and am especially pleased by the current visit of the Chief of the Defence Staff, General Sir David Richards. I hope that that visit will lead soon to the appointment of a British military attaché in Yangon. Any news on that would be welcome. The Burmese Government have agreed to many ceasefires—or, more appropriately, cessation of hostilities—over the years but they lack the will and the capability to transform those tenuous agreements into lasting political accords.

Several days ago, as the noble Lord, Lord Alton, mentioned, the Government and the Kachin Independence Organisation agreed a seven-point peace pact. For the first time, in a striking development, the UN Secretary-General’s special envoy, Mr Vijay Nambiar, was present during that meeting. I hope that that is perhaps an indication of a greater involvement by the UN in helping Burma in this difficult task of ethnic reconciliation. The most difficult aspect of that at the moment, as has been rightly addressed, is the situation affecting the Muslim population of Rakhine state. The UK must follow that situation closely, and guard against further substantial breaches of human rights,

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but I believe that, equally and at the same time, we must tread a difficult path and support Burma’s leadership —Aung San Suu Kyi and President Thein Sein—in the very difficult path along which they are trying to advance their country.

7.53 pm

Baroness Jenkin of Kennington: My Lords, I, too, congratulate the noble Lord, Lord Alton, on securing this important debate and pay tribute to his active interest in, and commitment to, the cause of freedom and human rights around the world, including in Burma.

I make no claim to any expertise on this specific subject, but I declare an interest for four reasons. First, I hope to visit Burma next month with the All-Party Group on Population, Development and Reproductive Health—unless of course my visa is refused as a result of my contribution to this debate. Secondly, I co-chaired the Conservative Friends of International Development. I recognise that Burma is a major recipient of British aid but it is in need of even more humanitarian assistance. Thirdly, I am contributing to this debate having met and talked to Benedict Rogers, deputy chair of the Conservative Party Human Rights Commission and a well known Burma specialist, who has visited Burma many times, most recently with the noble Lord, Lord Alton, in March. Fourthly, last summer I put my name to a letter to the Daily Telegraph, along with noble Lords from across the Chamber, expressing concern about the desperate plight of the Rohingya people. We called for emergency aid to all the victims of violence in Rakhine state, pressure on Bangladesh to allow refugees fleeing persecution across its borders, pressure on the Government of Burma to stop the violence, a serious effort to revise, or repeal, the 1982 citizenship law, which stripped the Rohingyas of citizenship, and a new citizenship law in line with international human rights norms. I repeat those calls today.

I echo many of the points already raised in this debate. Although it is indeed absolutely right to recognise the extraordinary and welcome changes taking place in Burma, to encourage further reform and to open a hand of friendship to the people of Burma as the country opens up and moves towards freedom, it is also essential that we recognise that Burma is just at the very beginning of change, that the early signs of increasing freedom are fragile and that there are many grave challenges still to be addressed.

In the time available, I wish to focus my remarks on a couple of these challenges. First, as others have already noted in depth, the recent anti-Muslim violence is of serious concern. Clearly, there are attitudes within parts of Burmese society that are deeply troubling and need to be addressed through public education and inter-religious dialogue. Such efforts must be encouraged at grass-roots levels, as well as at a national level. However, more urgently, it must be a priority for the international community to urge the President and his Government to end the climate of impunity and to ensure that the security forces act swiftly, effectively and fairly to prevent violence, stop violence when it is occurring, protect vulnerable communities and bring the perpetrators of hatred and violence to justice. Can my noble friend give her assessment of the Burmese

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Government’s response to these crises and say what concrete steps Her Majesty’s Government are taking to address these serious concerns with the Burmese Government?

Secondly, I am very pleased that Britain has continued to increase aid to Burma and has been the largest single donor to the country. That is a record to be proud of. I am also pleased that, as part of our aid to Burma, Britain has provided humanitarian assistance to displaced people within the country and along the borders. However, as my noble friend will know, there are two areas which are in particular need of further and urgent assistance: Kachin state and Rakhine state. The war in Kachin state has displaced at least 100,000 people and left more than 200 villages destroyed. In Rakhine state, more than 130,000 people, mainly Rohingyas, have been displaced and are living in camps which the UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Co-ordinator, the noble Baroness, Lady Amos, described six months ago as “dire”. Will my noble friend tell the House what efforts Her Majesty’s Government are making to secure unrestricted access for international humanitarian aid to all displaced peoples in Kachin and Rakhine states, including those outside government-controlled territory, and what contribution Britain is making to the needs of displaced people in these areas?

I wish to end with one of the most serious challenges in Burma and an issue that should be at the centre of Her Majesty’s Government’s focus on the country, given that it is a personal priority of the Foreign Secretary: sexual violence and rape as a weapon of war. Over the past decade, hundreds of cases of rape and sexual violence have been documented by women’s organisations in six different states. Of the cases of rape that have been documented, almost half are women who were raped and also killed. In Kachin state, many women have been raped during the conflict over the past two years. According to an article in the Guardian in February, Muslim Rohingya women, including teenagers, were raped. Will my noble friend tell the House what plans the Government have to ensure that Burma is included in the Foreign Secretary’s preventing sexual violence initiative?

7.59 pm

Baroness Cox: My Lords, I congratulate my noble friend Lord Alton on his tireless work for oppressed people and his commitment to obtain first-hand evidence, enabling him to introduce this debate with characteristic authority, knowledge and concern. I will focus on my experience of recent visits to the Shan and Kachin peoples and meetings with representatives of the Rohingya, Karen and Karenni ethnic nationals. Of course I also welcome reforms, including the freedom of the iconic democracy leader Aung San Suu Kyi and the release of several hundred political prisoners, although hundreds more remain in prison. But all ethnic national peoples share fears that reforms may be used by the Burmese Government to further their own agenda, including more exploitation of their resource-rich lands. When I was in Shan state with my NGO, Humanitarian Aid Relief Trust, or HART, one of the Shan leaders said:

“When the lights went on in Rangoon, all the world rushed to Rangoon; no-one stopped to see us in the darkness”.

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The UN Human Rights Council resolution on Burma passed in March highlighted many aspects of the darkness, including,

“arbitrary detention, forced displacement, land confiscations, rape and other forms of sexual violence, torture and cruel, inhuman and degrading treatment, as well as violations of international humanitarian law”.

These violations of human rights and military offensives against civilians have forced hundreds of thousands of ethnic nationals to flee their homes to live in destitution as IDPs or into exile in neighbouring lands. I appreciate the visit by Minister Hugo Swire to the Rohingya people in Rakhine state but, as we have heard from my noble friend Lord Alton and other noble Lords, their plight remains dire with an increase in anti-Muslim propaganda, attacks on communities and the destruction of mosques, homes and businesses. The condition of those who have had to flee into camps is desperate, with many dying from lack of medical care or other essentials.

In Kachin state in June 2011 the Burmese Army broke a 17-year-long ceasefire with military offensives, including aerial bombardment of civilians and widespread violations of human rights such as extra-judicial killings, rape and torture. We in HART visited Kachin state in February and we saw the suffering of the people, 100,000 of whom have had to flee from aerial bombardment and ground defences. We visited some of them living in destitution in makeshift camps along the border with China and we heard gruesome accounts of brutality inflicted on civilians. In Shan state fighting continues in the north and the Burmese Government continue exploitation of this resource-rich land. During our last visit to Shan state we met civilians who had to flee their lands because of military offensives by the Burmese army or expropriation of their land by deals made by the Burmese Government with foreign investors, such as the pipeline being built from India to China which has driven countless Shan civilians off their lands with derisory or no compensation. We met one lady in a camp for Shan IDPs who had lost absolutely everything. All she had left were the ragged clothes she was wearing, and she was one of many.

Given the gravity of the suffering of these ethnic national peoples, there is widespread concern over the Burmese Government’s refusal to allow access to international aid organisations, a point that has been raised by other noble Lords. Other ethnic national peoples who have signed cease-fire agreements, such as the Karen, emphasise that those ceasefires are used by the Burmese Government to extend roads into their lands, for possible future hostile military activities or to increase the expropriation of their natural resources, such as teak and other forms of timber. Although the Kachin leadership and the Government have resumed talks, as has been mentioned by other noble Lords, this is also simply seen as a precursor to a ceasefire and not real peace. The Burmese Government have a sorry record of brokering and breaking ceasefires.

Following the lifting of EU sanctions, what specific tools, mechanisms and leverage do the EU and the UK have to encourage and pressure the Government of Burma to address these grave concerns of the ethnic national peoples and to establish a genuine lasting peace process leading to a political agreement enshrining

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justice and equality for all peoples of Burma? Finally, what progress is there in encouraging the Government of Burma to sign and ratify the international covenant on civil and political rights, and will the UN special rapporteur on freedom of religion or belief visit Burma with an assurance of unhindered access to all parts?

I conclude by referring back to the words of the Shan leader:

“When the lights went on in Rangoon, all the world rushed to Rangoon; no-one stopped to see us in the darkness”.

I hope the Minister’s replies tonight will prove that the UK Government have stopped to visit them in the darkness and will do all in their power to prevail on the Burmese Government to bring them into the light of genuine peace, freedom, justice and equality as citizens of Burma.

8.04 pm

Baroness Berridge: My Lords, when faced with such expert eye witnesses to the tragic facts on the ground in Burma as those of the noble Baroness, Lady Cox, and the noble Lord, Lord Alton, it is hard to know what to add. But for outside observers I suspect the abiding image is the satellite photo from late last year that so clearly showed the destruction in Rakhine state. A picture does indeed speak more than 1,000 words. I will concentrate on the proposed international and domestic actions which could assist in bringing to an end the ethnic and religious intolerance against the Rohingya people. I declare an interest as the chair of the All-Party Group on International Religious Freedom.

At international institutional level in the UN and the OIC there has been much debate around international religious freedom as outlined in Article 18 of the Universal Declaration of Human Rights. Unfortunately, the events in Burma bring sharply into focus the distinction between protecting individuals’ human rights, which is what Article 18 enshrines, and protecting religions—in this case Buddhism—which is not what Article 18 protects. The UN and member states need to show in this situation that they can use soft power, institutional mechanisms and financial pressure to protect the Rohingya Muslim population. I had the privilege of accompanying the Minister on a trip to Srebrenica in 2009. Of course there is a different dynamic for the UN when you are actually physically present as an atrocity such as Srebrenica occurs. But bearing in mind the situation in Syria, I sense that there is a particular need for the international institutions, especially the UN, to show that they can effectively protect a Muslim population like the Rohingyas. Can the Minister tell this House whether there is a danger of extremists influencing Burma’s Muslims from neighbouring nations if the UN fails to act to protect the Rohingya people? Also, could she outline, due to her role in the Department for Communities and Local Government, whether she has received representations from British Muslims on this issue? Nowadays there are very few international issues that do not have a potential domestic dimension.

Although ethnic and religious issues are not always separable, it is clear from the propaganda of the Buddhist monk Wirathu and the 969 campaign that there is a religious dimension to these atrocities. It is

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sad to note that with the Rohingya people there is almost certainly a racial dimension as well. There is mention made in news reports such as in the

Guardian

in April 2013 that Wirathu’s teachings have large followings on YouTube and Facebook, but does the Minister know if these followings are in Burma as well? I join with the noble Lord, Lord Alton, in congratulating the BBC World Service for being the first international news service to broadcast from a mobile platform in Burma where there are now estimated to be 4 million mobile phone subscribers. But highly developed states struggle with the issue of the boundaries of freedom of expression on new technology. How are the Burmese Government coping with this issue and might some simple assistance with monitoring and removing footage have a huge effect and assist long-term peaceful co-existence between Burma’s religious communities?

I would particularly value my noble friend’s assurance that Her Majesty’s Government will request an urgent visit by the UN special rapporteur on international religious freedom, not just to report on the current violations but to look at how a long-term strategy can be developed so that all Burmese people are respected as equal human beings, enjoy citizenship and live under the rule of law. Perhaps also the UN special rapporteur could be asked to look at the use of new technology in promoting religious hatred. There is much that can be done by the UK Government. Between 2011 and 2015 £187 million of UK taxpayers’ money will be spent on aid, according to DfID’s operational plan for Burma. In that plan there is a section entitled “Alignment to DfID and wider UK Government priorities” and the Minister has been prioritising the work on international religious freedom and Article 18. This alignment section does not mention her priorities and as it is clear that there are violations of Article 18 on the ground in Burma, should this not be reflected in DfID’s plan? DfID support is given not to the Burmese Government but only through United Nations organisations and trusted international and local NGOs. Is Her Majesty’s Government ensuring that the UN and these NGOs which are spending UK aid are funding work that assists the understanding of religious freedom at community level with Burmese citizens?

No one expects overnight transformation in Burma. Daw Aung San Suu Kyi is not a miracle worker and mature institutions of a democratic state take decades, even centuries, to form. But I do not believe with all the plaudits the world has given to the Burmese leaders and the aid and the investment that is now flowing in that asking them not to oversee or even assist in the annihilation of certain religious and racial communities is too much to ask.

8.10 pm

Lord Triesman: My Lords, I add my thanks to the noble Lord, Lord Alton. This debate takes place at a point where it is hard to make completely clear judgments because the evidence has not, as yet, pointed conclusively in any one direction. I found the latest report by the special rapporteur on the human rights situation in Myanmar particularly helpful. I know it is unedited, but it was published on 6 March and is therefore very recent. It is an attempt at a balanced review, occasioned,

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it appears to me, by a wish to give encouragement to former prisoners of conscience and to sustain, and even increase, their remarkable and brave efforts.

When Aung San Suu Kyi visited our Parliament, the admiration felt for her was evident. The facts that she was no longer a prisoner, she was active in political life in Burma and that she was able to speak and publish very widely were all powerful signs of progress. Her measured optimism was an encouragement and from what I heard of what she said, I conclude that she was not overoptimistic. She is plainly wholly seized of the massive issues in democratic life, the continued violence against opponents of the Government, their military leadership’s actions, the deadly assaults that still continue and the cultural subjugation of minority peoples. In part because of what she had to say and in part because of the changes that we can observe, we have also tended to add qualified encouragement. Earlier today the noble Lord, Lord Howell of Guildford, invited the Government to recognise the progress that has been made, and in a way, he is right, as is the noble Lord, Lord Williams, tonight. I know they are both far too wise to believe that things are now okay or may not go into reverse. None the less, as the noble Lord, Lord Williams, said this evening, ceasefires, prisoner releases and so on are welcome.

The noble Lord, Lord Alton, invites us to ask whether it is reasonable enough for us to look at both sides of this balance sheet rather more acutely and without any euphoria. Uncritical optimism is not a policy. Last September, the President of Burma said that changes are irreversible. Is that true? Eight amnesties have freed about 850 prisoners of conscience, but there are certainly in excess of 250 still in prison, and it is unclear to me why any kind of special committee is needed to oversee the process of their release. Does the Minister know the rationale? How have representations made by the Government about medical help for current and past prisoners or those who are in the revolving door of repeated arrests been received? Do the Government think that the Burmese authorities will ratify CAT and OPCAT and, if so, when? Do the Government regard this, as I would, as a benchmark test for eradicating the torture of detainees and others? How have the Burmese Government reacted to representations that we have made on the impropriety of imprisoning peaceful demonstrators? I know there have been improvements in this area, but there have also been significant lurches backwards.

Have the Government made representations on illegal land seizures and, if so, with what response? How much progress does the Minister believe has been made by the national planning authority on the pledge that has been made to halve the rate of poverty? My noble friend Lady Nye and the noble Lord, Lord Patten, have illustrated the economic potential, if it were to be grasped. Does the Minister have an estimate, which has been recommended several times in the past by the UN Commission on Human Rights, of when universal education for younger children—their human right, if I can put it that way—might be achieved?

I am very grateful to the noble Baroness, Lady Cox, this evening for her report on her recent visit and also to the noble Baroness, Lady Berridge, for her proposals.

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The noble Baroness, Lady Jenkin, made a very powerful statement on this. I, too, note with deep apprehension the reports of every kind of vile atrocity suffered by ethnic minorities in Burma. The announcement in the joint statement of work on de-escalation between the authorities and the KIO on 6 February is an important step, and China is to be thanked for the constructive hosting of the talks on Kachin state.

The crisis in Rakhine state raises the same deep apprehensions. Blame is attributed by both sides to each other. The offer by the UN of an independent investigation is welcome, but removal of the violent assaults and killings in the wider Rohingya community is surely the starting point before there is any prospect of a serious discussion on a federal outcome. I am with the noble Lord, Lord Patten, and my noble friend Lady Nye in asking this question—I hope I am not putting words in their mouth. Does the Minister agree that we are witnessing, in the words that they carefully chose to use, ethnic cleansing?

I appreciate the typically thoughtful statement by Hugo Swire MP, the Minister responsible for Burma. He is right to emphasise that our Government’s action must go beyond lobbying. The noble Lord, Lord Williams, called for a much wider and more active UK role. Policy will, as Mr Swire said, evolve, but I urge a process somewhat faster than evolution, which is a slow process. Let us include active sponsorship of ethnic reconciliation, no impunity and closer co-operation with China on these matters. Their roles, alongside the bravery of the opposition, should be at the forefront of all our involvement. Finally, if progress stalls, will we press for the reinstatement of sanctions?

8.16 pm

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, I thank the noble Lord, Lord Alton, for once again calling a timely and important debate. Burma is going through a complex political and economic reform process. It will take time and requires scrutiny, support and guidance from the UK and like-minded partners in the international community to realise the full benefits of what Burma can become. It is not simply a matter of relying on evolution, which the noble Lord, Lord Triesman, referred to; it is about going further and using every opportunity to make sure that Burma is heading in the right direction.

The noble Lord, Lord Alton, who has visited the country, described horrific incidents, but he noted the progress that is being made. Perhaps the most visible is the growth in freedom of expression, including for NGOs and civil society. People are now able to buy a wide selection of newspapers, and civil society is active. We provide funding to support this, which includes a number of initiatives that strengthen civil society. For example, later this month, we will be hosting prominent former political prisoners from the 88 Generation who are coming to the United Kingdom.

Moves have been made to bring about an end to the internal conflict that has blighted the country since independence. The Burmese Government have signed ceasefires with eight of the 11 ethnic armed groups. We welcome last week’s potentially significant agreement

5 Jun 2013 : Column 1247

with the Kachin Independence Organisation to begin political dialogue and work to cease hostilities. We continue to support the Government and the representatives of the ethnic groups to reach robust and sustainable peace agreements through a political process. Recently we hosted visits from ethnic leaders and the Burmese Government to share our experiences of peacemaking in Northern Ireland, but I take noble Lords’ points when they say that this has to move beyond peace agreements into real reconciliation.

The noble Baroness, Lady Nye, and the noble Lord, Lord Triesman, asked specifically about political prisoners. There have been releases of large numbers of political prisoners, the establishment of a mechanism to review political prisoner cases and, for the first time in many years, the International Committee of the Red Cross now has access to Burma’s jails. The Foreign Secretary pressed the Burmese Foreign Minister in February to release all political prisoners. We note President Thein Sein’s statement on 4 June that all prisoners of conscience will be released soon. This is an optimistic statement and one that we will continue to monitor closely to ensure that progress is made. We particularly welcome his clear commitment not to enforce Section 401, under which released political prisoners can be returned to jail to serve the remainder of their original sentence. We have always emphasised that releases of political prisoners should be unconditional and we are pleased that the Burmese Government have publicly confirmed that they share that view. We will also continue to follow up on cases of reported abuse in Burma’s jails and we raise individual cases of political prisoners when we have the opportunity.

The noble Baroness, Lady Nye, also raised the two-child policy. Aung San Suu Kyi has said that any enforcement of a two-child policy would be discriminatory and not in line with the upholding of human rights in Burma. The British embassy in Rangoon is raising our serious concerns with Burmese Government Ministers citing the human rights obligations to which the Burmese Government have signed up. A presidential spokesman said earlier this week that the central government did not announce the Rohingya two-child policy—this was something that was being done on a local level and they would be looking into it.

In relation to political reform, Aung San Suu Kyi has, of course, now taken a seat in Burma’s Parliament. It was an amazing moment when we all welcomed her at the Houses of Parliament in Westminster Hall. She is now building alliances across the political spectrum to drive reform forward. We welcome the announcement on 20 March that the Burmese Parliament will establish a committee to review the constitution. This is a crucial next phase in underpinning the wider political reforms. We are funding work to strengthen the capacity of the Burmese Parliament, an institution vital for deepening democratic politics. Over the past six months we have hosted Burmese parliamentarians from the Public Accounts Committee and the Bills Committee.

The issue of sanctions was raised by a number of noble Lords. I think I raised this matter in some detail in an Answer to noble Lords at Oral Questions earlier today. In the context of the ongoing political transition, on 22 April the EU lifted all sanctions on Burma

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except for the arms embargo which remains in place. My right honourable friend the Foreign Secretary made clear at the time that our work in Burma is not remotely finished. The judgment of the UK and of all EU member states supported by Aung San Suu Kyi is that Burma’s remaining challenges are now best dealt with not through sanctions but through deeper engagement.

We will continue to be a constructive, supportive and critical partner to Burma, committed to supporting the reform efforts that have started. Our vision is for Burma to become a prosperous, stable, peaceful and more democratic country with respect for human rights and the dignity of all people. Without that respect for all people, this vision of Burma will not become a reality. Guided by these principles we remain concerned by a number of issues that the Government of Burma must address in order to sustain the momentum of the reform process.

Most specifically there is the issue of Rakhine state and the human rights abuses there, which were referred to by a number of noble Lords. We are extremely concerned by allegations of these abuses during the violence last year which was documented by Human Rights Watch and the UN special rapporteur. The Rakhine commission set up to investigate the causes of last year’s violence emphasised the importance of ensuring accountability and the president has endorsed this but these commitments now need to be translated into action. We continue to press the Burmese Government to bring to justice all those accused of having instigated, incited or carried out violence in Rakhine state. This accountability needs to be delivered in a way that is transparent, credible and in line with international standards. The EU-sponsored resolution at the March 2013 UN Human Rights Council mandated the special rapporteur to continue to report on human rights in Burma for another year. It drew specific attention to the need for accountability. OHCHR staff are currently on the ground in Rakhine state monitoring the human rights situation and we are lobbying the Burmese Government to open a country office of the High Commissioner for Human Rights with a strong mandate which allows it to monitor the human rights situation in all parts of the country.

On the question raised by the noble Baroness, Lady Nye, on whether ethnic cleansing and crimes against humanity took place in Rakhine in 2012, further independent investigative work would be required for an informed assessment as to whether ethnic cleansing and crimes against humanity have been committed.

My noble friend Lady Jenkin raised the issue of humanitarian aid and assistance. On humanitarian assistance, we have continued to call for unhindered access to conflict-affected areas at every opportunity. I raised this with Aung Min, the Minister for the President’s Office, when he visited the UK on 15 April. The Minister of State for Asia, Hugo Swire, raised with the noble Baroness, Lady Amos, when they met last week the need for improved humanitarian aid co-ordination. Ministers announced a further £4.4 million in aid to Rakhine on 15 May and we are giving £3.5 million to Kachin and have given £600,000 to support the Shan

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Women’s Action Network in Shan state. Our total commitment over the four years up to 2015 will amount to £187 million.

The issue of Rohingya citizenship was raised by a number of noble Lords. This remains fundamental to resolving their statelessness. We have consistently said that there needs to be a sustainable solution to citizenship for the Rohingya community, consistent with ensuring their human rights. I pressed senior Burmese Ministers on this in April and will continue to make the point. The Rohingya community, most of whom have lived in Burma for many generations, should be entitled to citizenship in line with Burma’s current legal framework. Any further independent work into the origins of the Rohingya community could have value on the question of their citizenship. We are in close contact with the UN which is reviewing the 1982 citizenship law to assess whether it is consistent with international treaties to which Burma is a signatory. Noble Lords will be familiar with the arguments that are made against the granting of citizenship in relation to the length of stay in a country, the look apparently of the people and the minority religious background. The irony of that argument was lost in light of the fact that they were discussing the matter with me.

The wider violence against religious minorities, which has affected other parts of Burma, is also a serious concern. Attacks against the Muslim community in Meiktila and other areas have led to deaths and the destruction of mosques, madrassahs, businesses and homes. The violence in Shan state last week has shown that there is still much more to do to prevent further outbreaks. As is the case with the violence in Rakhine state, the Burmese Government must ensure, in line with statements made by the president, that those guilty of acts of violence are held accountable. We are this week sending out a mission to assess what help is needed to improve the capacity of the police force so that it can sensitively and effectively deal with civil unrest and better protect minority communities.

The noble Lord, Lord Alton, raised the issue of an impartial investigation. An international inquiry would be most effective if it had the support of all parties. The issue of Rakhine is under discussion at the moment at the current Human Rights Council and we are engaging with other countries as to whether this is something we could take forward. The noble Lord also raised the issue of the two-child policy. I think I dealt with that matter earlier. He also raised the issue of the militant group 969. There is evidence to show that the violence was organised. I do not have the information to attribute it to one group at this stage. The noble Lord referred to the Channel 4 report asking what representations we had made, I think, to the Thai Government. We have lobbied them and asked them to ensure that they adhere to international protocols governing the treatment of refugees. We have also asked them to ensure that full access to detained Rohingya refugees is given to international migration organisations and the UN. I am more familiar with the Rohingya refugees in Bangladesh who I visited on my last visit.

My noble friend Lord Patten raised the issue of trade. I agree with him. We have put responsible investment at the heart of our future commercial relationship with Burma. We want to encourage investment that

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will benefit local communities and respect the local environment. He is right that if we give some people a stake in what could be a more prosperous future for all, it could help with some of these tensions.

The noble Lord, Lord Williams, raised the question of whether the president could visit the United Kingdom. We have asked President Thein Sein to visit the UK and we hope that it will be soon. That could be an opportunity again to raise these matters. The noble Lord also raised the issue of the visit by General Richards. I can tell the noble Lord that the UK now has a non-resident defence attaché who was appointed in February this year. A resident defence attaché will be in place, we hope, by November this year if it is agreed by the Burmese Government. That again could help with that relationship building.

My noble friend Lady Jenkin asked about PSVI. Over the summer the British embassy in Rangoon will be scoping options for increasing UK engagement and embedding PSVI approaches to tackle sexual violence in Burma.

My noble friend Lady Berridge specifically spoke of freedom of religion and belief. She asked a number of questions about which I will write to her in detail. To address the issue of radicalisation, we are concerned, both in relation to issues of radicalisation of the Burmese Muslim community, where the narrative has been fed in that they are a group that has been left to suffer in this way while other people stand by, and in relation to concerns among British Muslims, given how the issue of the Rohingyas could be used as a recruiting sergeant by radicals and extremists in this country. It is something we are acutely aware of and in discussions with the Home Office about.

In conclusion, after almost half a century of repression, the past two years have seen Burma make rapid progress towards the goal of a freer and more democratic nation but there is still much more to do. In order to achieve greater democracy Burma must deal with the ethnic conflicts it faces and tackle discrimination against its minority groups. We will continue to engage with the Burmese Government to shape the process of this reform and we want the UK to contribute with meaningful and targeted assistance. Above all, we will ensure that human rights, preventing further violence and ethnic reconciliation remain high on the agenda and, to respond directly to the noble Baroness, Lady Cox, we will not stop looking for, speaking of, or supporting those who are still left in the dark.

Offender Rehabilitation Bill [HL]

Committee (1st Day) (Continued)

8.30 pm

Clauses 4 and 5 agreed.

Clause 6 : Supervision of certain young offenders after detention and training order

Amendment 19 not moved.

Clause 6 agreed.

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Amendment 20

Moved by Lord Beecham

20: After Clause 6, insert the following new Clause—

“Probation service reform: Parliamentary approval

No alteration or reform may be made to the structure of the probation service unless the proposals have been laid before Parliament, and approved by resolution of, both Houses of Parliament.”

Lord Beecham: My Lords, we now come to the black hole in this legislation. Astonishingly, given the scale of the changes proposed for a major national public service, the Bill does not deal with the proposed restructuring of probation. It is quite remarkable that this should be the case.

I have complained from time to time about the Government’s habit of engaging in pre-legislative implementation. What they are doing to probation is, in fact, worse: they appear to be about to implement their proposals without any legislation at all. What we see in the Bill is a series of consequences of their proposals rather than a proposal. This is in connection with a service which has met and exceeded all its targets, which won the British Quality Foundation gold medal for excellence for its achievements over many years and which has very high ratings from those with whom it has to deal: 98% of victims approve of the work of the probation service in the feedback that they have supplied and 82% of supervisions were completed satisfactorily. The record on the timeliness of reports to courts was as high as 99%. Only just under 50%—49%—of what is by any standards a difficult client group were placed in employment after serving their probation order.

Yet the Government now propose a massive change which will effectively exclude around half the work of the probation service from its future deployment. Some 70,000 cases will be effectively privatised. The probation service will be unable, in its present form, to bid to carry out the work which the Government have determined will be subjected to competitive tendering.

The service has done well in reducing reoffending. The Secretary of State has drawn attention to the reoffending rates. He has noted that, for those serving sentences of less than 12 months, reoffending rates have been rising. We have heard today about the scale of the problem of that group. Of course, that is a group for which the probation service has no responsibility. Where it has responsibility, for those with longer sentences, it has done extremely well in reducing reoffending. The Government propose effectively first to nationalise and then virtually to privatise most of the probation service. They will centralise control. Probation trusts will disappear. There will be 21 areas in which the work will now be carried out by tendering. This will mean that much of the work currently carried out by the probation service, and all the work on short-sentence offenders which has not been carried out by the probation service but which the Bill seeks to address—I repeat that we welcome that—will now be carried out on a contractual basis.

There are many concerns about that. Certainly, one of the effects is likely to be a reduction in the degree to which justice is local along with greater difficulties for

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voluntary organisations wanting to be involved in the work. There would effectively be a binary system of risk, with categories of low and medium risk to be dealt with by organisations other than the probation service, but with the probation service being responsible for high-risk cases. Of course, this appears to ignore the fact that there is movement between the categories. Around 25% of offenders will change from one category to another, many of them becoming higher-risk.

The proposals will clearly lead to confusion. There is a risk, to which I shall return in greater detail when we discuss an amendment specifically dealing with the issue of risk, of the public lacking the protection that a properly administered probation service can afford in the 15,000 or so cases a year that move into the higher risk category. As we shall explore later, it is very difficult to see how those cases will be effectively managed.

We need a proper legislative framework for this exercise of transferring responsibility into the private sector. The Government display, as usual, a touching faith in the competence of the private sector but their record in this area of justice is not very convincing. There have been the huge profits made in relation to an inefficient and inadequate system of tagging, with many failures of the system and a great cost to the public purse. The Minister will no doubt say that that has been changed, that there will be new equipment, and so on. Be that as it may, the original providers certainly did very well for themselves but not very well in relation to the purposes for which they were contracted. Just yesterday we heard the appalling news about the young offender institution run by Serco, one of those massive organisations that purport to be able to do everything anywhere. It was a terrible report on the mistreatment of offenders in a young offender institution.

The unwavering determination of the Government to move from public provision to private provision potentially poses a risk to the interests of the community in matters of safety. We need a proper legislative framework if there is to be any change in the probation service. We need reassurances about a whole range of issues and we need parliamentary approval for a scheme which may bring changes to the probation service, a service that is highly successful.

The purpose of Amendment 20 in the names of the noble Lord, Lord Ramsbotham, and myself is to seek to ensure that any change in the probation service will take place only after the full details have been discussed and approved by Parliament, rather than by executive order or, as it may be, by statutory instrument. This is so important that it deserves to be dealt with by primary legislation. That would certainly be my preference. At the moment we do not have the details and I do not think that the Government have worked them out. They are rushing to implement this programme. Mr Grayling wants things in place in time for the general election. This is too important an issue to be rushed in this way, especially when they are doing so behind the curtain.

We have seen many changes to major public services under the present Government. The health service is in turmoil, despite all the warnings and a very long legislative process. There is a grave risk that we shall

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see something similar in terms of the impact on the service if the Government press ahead with untested, undebated and unapproved legislation to change what has been a very successful service. I hope that the Government will think again about this. I hope they will see the force of having their proposals properly scrutinised, debated and approved, if that is what Parliament wishes. At the moment, it does not look as though Parliament will have that opportunity, and that simply is not good enough. I beg to move.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, I need the guidance of the noble Lord, Lord Beecham, on the correct pronunciation of the word “chutzpah”.

Lord Beecham: It is glottal—chutzpah.

Lord McNally: Glottal or not, that is an extraordinary piece of chutzpah. He knows full well that the powers that we are taking to reorganise the probation service were embedded in his Government’s 2007 Act. It is interesting to recall that during the passage of that Bill through the House of Lords, the issue of parliamentary scrutiny of orders creating, abolishing or amending probation trusts was highly controversial. Originally the Bill did not include any parliamentary scrutiny but the Delegated Powers and Regulatory Reform Committee identified it as an issue for further investigation. My noble friend Lady Anelay of St Johns tabled an amendment successfully introducing the affirmative resolution procedure to this clause in the Lords. The then Government overturned the amendment during ping-pong by tabling their own concessionary amendment providing for the negative resolution procedure on the basis that that would provide sufficient scrutiny without unduly taking up parliamentary time.

That is the background. Nothing was done behind the curtain or anywhere else. No one has ever heard me, from this Dispatch Box or anywhere else, attack the record of the probation service. The probation service does an excellent job, and I hope it has a very clear future ahead of it with a national role. However, we have to ask whether these things could be done better and more efficiently. As well as the successes of the probation service, we have had as a background to this debate the very disturbing levels of reoffending. I agree with the noble Lord, Lord Beecham; the private sector will be very much on trial during this period. We in government who have been preparing the contracts and guidelines for this new partnership will have to work very hard to make sure that they are watertight in terms of delivering value for the taxpayer.

8.45 pm

However, as I said earlier in this debate, I have never hidden the nature of the deal that was on the table to enable us to achieve the reforms—the rehabilitation revolution—that we want, which we said we wanted from the very first days we came into government. The Rehabilitation Revolution was the first Green Paper we published. It was abundantly clear that we could not move forward on this front unless we found the elbow room, in a budget that was already under the cosh, by looking for savings and bringing in the expertise and experience of both the private and voluntary

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sectors. We have made it very clear that whichever groups, confederations or partnerships win this work, anybody with any idea of winning it will have to demonstrate good working relationships and partnerships with the voluntary and community sectors. We have invested some £500,000 in grants to support the voluntary sector organisations, enabling them to participate actively in the rehabilitation reforms.

That is the background. Amendment 20 would require that any reorganisation of the structure of the probation service would have to be approved by a resolution of both Houses of Parliament. As noble Lords will know, on 9 May the Government published their strategy for reforming the service to deliver offenders in the community. As part of that strategy we will create the new public sector National Probation Service. I have said before that I very much hope that the probation service will grasp the opportunity to build, at national level, an influential and respected organisation that will have massive responsibilities within this new structure and whose fundamental role will be to protect the public from the most dangerous offenders in our communities. Alongside this will be open delivery of services for offenders in the community by a diverse range of new rehabilitation providers.

The Government’s strategy for reform sets out concrete plans to extend and enhance rehabilitation in the community. The Bill corrects what is probably the biggest gap in the current system—that those with the highest rates of reoffending currently get no help with rehabilitation. The creation of the National Probation Service is crucial to delivering this extended provision. Alongside the use of competition and the introduction of voluntary and private sector providers, the creation of a national service will allow us to deliver the retained public sector functions in an effective, affordable manner, deriving efficiencies from the economies of scale and streamlined management structures. Without those efficiencies, we would not be able to take forward our new approach, or to extend rehabilitation to short-sentence offenders.

I remind noble Lords that the issue of parliamentary scrutiny for the establishment, amendment and dissolution of probation trusts was thoroughly debated in both Houses during the passage of the Offender Management Act 2007. At that stage, the then Labour Government were content that the negative resolution procedure provided an appropriate level of parliamentary scrutiny for any changes. Bearing that in mind, and the consultation that we have already undertaken on this issue, I hope that the noble Lord will withdraw his amendment.

Lord Beecham: My Lords, we are in Committee and it is 9 pm, so I certainly will not press an amendment on this occasion. However, I must say that I am not persuaded by the arguments, such as they were, put forward by the noble Lord. At a fairly early stage in his reply he spoke of the savings that would be generated by the experience of the private sector. However, the private sector does not have experience of running probation. Serco, Group 4 and all these huge outfits which purport to be able to run all kinds of things, from the Olympic Games to prisons and many other services besides, do not have experience of running probation.

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It is far from clear from the impact analysis, about which we heard earlier, what the financial implications will be. The noble Lord says that there will be a good relationship with the voluntary sector. That was part of the message that the Secretary of State used to sell the Work Programme in his previous job. So successful was that scheme that some 3.5% of people on unemployment benefit have actually been found a job. The voluntary sector, which was at first quite enthusiastic about the prospects, found itself effectively treated as bid candy and largely excluded from any of the major programmes that were advanced. It is rightly fearful that that will be the case if the Government’s proposals are implemented.

The noble Lord says that there is a need for a National Probation Service. That is questionable. I certainly was not party to the discussions of the legislation to which the noble Lord referred, but it is quite conceivable that changes to the probation service as envisaged, to be approved by the negative procedure, related to changes in the structure of 35 probation trusts. What is being proposed here is something much more radical. It is effectively the abolition of a probation service—certainly the abolition of all the probation trusts—and a centralisation that will be crucial to ensure that the Government’s intentions in this Bill are carried out.

Of course, however, the probation service, national or otherwise, is not going to be involved in the short-sentence provisions. The probation service will be excluded from providing for medium and low-risk offenders. As I have said, the estimate is that 70,000 cases a year will be run by the new private providers. There is no question about that, unless the Government accept a later amendment of mine—I am not very optimistic about that—which will allow the probation service to tender for such work. The Government are so keen on competition that they will not allow the probation service to tender for that work at all. Therefore, I cannot see the argument that the noble Lord is trying to make as being at all plausible.

In my view, we are seeing an ideological determination to limit the role of a major public service. In so far as there is a national service, I do not think that that is conducive to what is needed on the ground, which is, as we have heard and as the noble Lord accepted when discussing an earlier amendment, the need for close working relationships between all the organisations involved in the rehabilitation programme at local level. I cannot see how that can be driven by a national body without any local organisational manifestations. I have to say that it is arguable that 35 trusts is too few anyway, but it is certainly better than none at all. It is certainly better, whatever contracting system is being proposed, than the 21 areas to which the Government will be reducing the tendering process.

This is a deeply flawed proposal and, whatever happened in the past, it ought now to be the subject of proper parliamentary consideration, if not in primary legislation—as was the opportunity with this Bill—then certainly by the affirmative procedure. If the noble Lord is unrelenting, as he appears to be or as he is compelled to be, then on Report we will have to take this issue further and at that stage seek to test the

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opinion of the House. However, as I indicated at the outset, tonight is clearly not the occasion to do so and I therefore beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Amendment 21

Moved by Lord Beecham

21: After Clause 6, insert the following new Clause—

“Proposed reform of probation services

(1) Subject to subsection (2), before instituting a system of payment by results for the provision of services to supervise offenders, the Secretary of State shall prescribe by statutory instrument a scheme for such a system, which shall be laid before and approved by resolution of both Houses of Parliament.

(2) Before such system may come into existence, the Secretary of State shall undertake a pilot scheme lasting three years in duration, which shall be independently evaluated, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.

(3) Any payment by results pilot shall be based upon existing probation trust areas.”

Lord Beecham: My Lords, another aspect of the Government’s proposals is the development of payment-by-results programmes. I will begin by quoting the report of the Justice Select Committee in August 2012. The committee said, of contracting out on a payment-by-results basis, that,

“we are not convinced that the Department has the necessary commissioning and contracting capability to achieve its objective. Currently its commissioning processes are often poorly designed, the stages involved do not whittle down contenders appropriately and bidders do not receive sufficient feedback at the end of the process. Furthermore, the potential benefits of payment by results programmes may not be realised because of structural problems in the Department and the National Offender Management Service”.

That was as recently as August last year. Will the Minister say to what extent these matters have been considered by the department, to what extent the situation has now improved and in what respects it has improved? It was a fairly damning indictment by the Justice Select Committee.

There was some discussion of this issue at Second Reading, and many questions were asked. The Minister—I think it was the noble Lord but it may have been his colleague—said then that discussions were taking place with potential providers. It would be interesting to know at what stage those discussions now are. What is the basis on which a payment-by-results scheme will be made? We have heard various suggestions that there will be a flat fee, which will be topped up by some kind of bonus. However, that is likely to be modest in relation to the total cost of the service. If it is not modest, will contractors take the risk? Who knows on what basis this will happen? There is very little about this—of course—in the infamous impact assessment. Will the noble Lord indicate what percentage of the total cost the Government consider will be paid by way of bonuses?

There are more questions to be asked. Will the scheme be the same for all offenders? We heard yesterday—I think for the first time—about the concept of cohorts, to which reference has already been made. The idea is to not look at individual cases but to take a

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whole group and study the reoffending rates—or rather, as we heard earlier by way of clarification, the reconviction rates. However, we do not know for what period that will apply. Will results be judged on a year’s basis, or will any offences taking place over a period of, say, two or three years—which one might have thought would be a more reasonable approach—be taken into account? If so, how will they be taken into account? It will not do for the Government to say that they do not yet know because they have not reached a conclusion with the contractors. They ought to know the basis on which they are advancing the new policy, and they ought to be able to tell your Lordships’ House—and, indeed, the world at large—about what they are doing.

Serious criticisms of this process have come from a variety of sources. The director general for public services at the Treasury said:

“We have now got a situation at the Ministry of Justice where Chris Grayling … is going to take a payment by results approach to almost the whole of probation. But some of us who have been around a long time get very nervous about panaceas … It is quite hard to get a firm handle on the numbers”.

I suspect that she is not a paid-up member of the Labour Party, or even of the National Association of Probation Officers.

The National Audit Office commented on the aim of getting smaller organisations involved—which is, as ever, one of the more attractive features that the Government wish to promote, although it turns out that they are doing so more in theory than in substance. The National Audit Office said:

“It is likely to require significant efforts by the Ministry for it to achieve its aim of creating a diverse and sustainable market, at least in terms of prime providers”.

At the risk of cherry picking, it said,

“the use of a binary measure could encourage providers to concentrate their efforts on the offenders least likely to offend and prevent them from working with the most prolific offenders”.

It is not clear how the cohorts are going to be made up. The noble Lord will no doubt say the matter will be resolved. Can he give any indication of how the cohorts are to be composed?

9 pm

It goes on:

“The measure of success—whether someone is reconvicted within a year or not—is crude”.

It is worse than that. It is not whether someone is convicted, it is whether a proportion of the cohort is convicted.

“Offenders usually desist from crime only after many twists and turns. Firms could have an incentive to cream off the easiest cases and keep offending quiet”.

Actually, that was not the National Audit Office, I beg its pardon. That was the Economist—again, not a particularly left-wing publication. The Economist carries on:

“Big companies and charities find it much easier to risk non-payment than smaller ones, yet small, local groups are often the ones with the knowledge and networks”.

That is precisely my point about locality which will almost certainly be sacrificed in the course of this reckless proposal, if it goes further.

Then there is the question about who is to be dealt with under the 12-month short sentence category. I asked this question at Second Reading and we do not

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have a reply. Is every motorist, non-violent offender or person committing a minor offence who goes in for less than 12 months to be offered supervision? The implication yesterday at the meeting with the Secretary of State is yes, but the contractor will decide what sort of supervision to apply. There is bound to be a cost to that. They are going to price that in. What is the point? There ought to be some clarification about who is likely to fall into this category.

Not the least worrying feature is the unanswered question which I asked in the Queen’s Speech debate and again at Second Reading. Why did the Government stop the pilot schemes in Staffordshire, the West Midlands and Wales, and why have they refused a freedom of information request to disclose the evaluation of those schemes? We really are entitled to an answer to that. If the Minister cannot supply it tonight—I am not blaming him personally—I expect a reply in writing from him once he has taken whatever advice he needs about this. This is pretty fundamental. Why is Parliament so far being denied the reasons for that decision and the evaluation of that pilot which took place?

There is another organisation—DrugScope—which has commented in an interesting way about the proposal. It is not completely opposed to the notion. However it recommends what it describes as a cautious and gradual transition. It talks about the need to accumulate evidence and for stocktaking in the light of experience. It suggests that only 10% to 20% of the workload should be subjected to payment by results in the first phase. It is taking a less oppositional view than mine and that of my colleagues on this matter. Are the Government disposed to listen to that point of view? If not, why not? These people are not as opposed to it as some of us necessarily find ourselves. Incidentally, this is an organisation which has been mounting pilots of its own in a different area of policy, in drug and alcohol recovery. It started pilots in 2012. The project is being monitored and evaluated by Manchester University in a three-year study. DrugScope’s recommendation is reflected, in part, in my amendment, which refers to a three-year period. Incidentally, I did not know when I tabled the amendment that this other experiment, as it were, was being piloted. It was fortuitous that I proposed the same period as that endorsed by DrugScope, but it seemed to me a reasonable one.

If the Government wish to proceed on these lines, why will they not follow what they are doing—or helping to be done—in the not unrelated field, as it turns out, of drug and alcohol recovery? Why do they not follow that example, pilot it properly and then proceed if the evidence supports following that approach? It is troubling that so little has been disclosed about what is in the Government’s mind in tackling this issue—if anything is in their mind—and how their policy might impact on a crucial service. I hope that the amendment’s aim of piloting proposals properly before rolling them out will, on reflection, commend itself to the Government. It is a much better way to approach this problem. The Government clearly wish to pursue the concept of payment by results, about which many of us have doubts. However, we might be convinced by the evidence of properly evaluated pilots. I beg to move.

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Lord McNally: My Lords, as the noble Lord, Lord Beecham, bandied statistics around from authoritative organisations, I should add that the National Audit Office estimated that reoffending by ex-prisoners cost the economy between £9.5 billion and £13 billion in 2007-08, and I doubt that the figure has gone down since then.

It is all very well to talk about pilots and taking the time to conduct them. However, as I said, we are dealing with a section of reoffending which the previous Government thought they would deal with, tried to do so and then backed off. A lot of what we are dealing with here is a long-standing problem that is still costing the economy a great deal of money. Therefore, I think we are entitled to look at what works best in the present system and then bring forward positive ideas to tackle this very difficult problem.

As I approached my third year in my present office, I began to get slightly embarrassed about pilot schemes because all we seemed to do was go round and round in circles conducting pilots. Pilot schemes can be valuable but I suspect that we abandoned certain pilots because there was nothing significant to be gained from continuing with them, and we already had the feedback from the pilots started by the previous Government in Doncaster and Peterborough. I hear what the noble Lord, Lord Beecham, is saying about our following a high-risk policy. It is certainly a radical policy and delivering it will, no doubt, demand significant effort by my department. What we have learnt from the pilot schemes that have taken place, from the experience of payment by results in other parts of Whitehall and from the existing involvement of the voluntary sector in rehabilitation gives us confidence that if we apply ourselves, taking some of the warnings that he has rightly made, our solutions to the matters before us will work.

Our experience with initial payment-by-results pilots has increased our confidence about designing robust contracts that drive the required behaviour and help generate improved value for money. We have drawn lessons from pilots about establishing performance targets that will allow us to measure, with confidence, the impact of providers on reoffending rates; of designing payment mechanisms that reward providers only for achieving genuine success. We have looked at the benefits of co-design with the market; early provision of data, where possible; the importance of engaging with a wide range of voluntary sector providers in building diverse supply chains; the new complexities in managing PBR contracts and how we can best meet them within the department.

We have not been static on this: we are working on the kind of contracts. The consultation response set out our phased approach to implementation over the summer. We can complete the final details of our design and test robustly some of the details of our plan. The Secretary of State has committed to transparency in this process and we are publishing information on our website as soon as it is ready. We recently published information on our proposed payment mechanisms for the market to consider.

It is all right. I must not cause tensions between departments but when the noble Lord, Lord Beecham, quoted somebody from the Treasury saying that he did

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not think the Ministry of Justice had a handle on the numbers, the terms “kettle” and “black” came to mind. I had better not go further down that road but before that Bench starts nodding too much about having a grasp of the numbers I would remind them of recent history. I am, nevertheless, pretty confident. I see the teams at work who are going to deal with this in a very businesslike way.

I do not resile from what I am saying. We are doing something extremely exciting, challenging and radical which is opening up the real opportunity—which escaped the Opposition during 13 years in Government—of dealing with this particularly difficult, complex area of reoffending. I will therefore resist Amendment 21 which would require the details of any system of payment by results to be laid before and approved by resolution of both Houses before being implemented. It would also require the piloting of payment by results for a three-year period, subject to independent evaluation and based on existing probation trust areas.

As noble Lords will, no doubt, be aware, we are currently piloting a number of different approaches to payment by results across government and have gained valuable learning data. The lessons we have drawn from implementing our pilots and from the experience of other departments give us confidence that we can design and commission robust contracts that drive the right behaviours and generate value for money. It is, of course, extremely easy to get quotes from various organisations about this but we are moving this forward. The Government have consulted carefully on the principle behind our intended payment mechanisms. In the recent response to our consultation, we explained how we had taken on board comments that the payment mechanism must incentivise providers to work with all offenders, not cherry pick them, including the most prolific, and how we had developed the payment mechanisms accordingly. We have now published a draft payment mechanism for discussion and will continue to engage closely with potential providers to make sure that we get this right.

As I have explained, given the current financial constraints and the importance of delivering effective rehabilitation services to all those who need them, maintaining the current trust structure and piloting payment by results within the existing area are not options open to us. In the light of these arguments, I ask the noble Lord to withdraw his amendment.

9.15 pm

Lord Beecham: My Lords, of course I will withdraw the amendment at this stage but it is certainly a matter to which we will wish to return on Report. The Government have consulted widely but have not consulted Parliament. If it were not for the amendment, there would be no debate during our consideration of the Bill on the question of payment by results; the provisions would simply be implemented. I do not even know whether that would be done by regulation or executive order. I do not know what the current framework is but, whatever it is, it would not be the subject of debate in this Chamber before decisions were made. Again there has been no consultation on a major change.

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The Minister refers to there being experience of payment by results in other areas, but this is a unique area. To begin with, it relates ultimately in its potential impact to public safety, and we will shortly discuss issues of risk. People’s lives and livelihood are at risk in this area and that makes this a different case from less dramatic eventualities, whatever the normal process of payment by results might mean. The Government no doubt piloted the Work Programme; that experience has been pretty much a disaster. What have the Government learnt from that in terms of payment by results, whether on the supply side, which turned out to be pretty exclusive when it came to voluntary third-sector organisation, or in terms of the outcomes? It would be interesting to know what areas the Government have tested and with what results. I could table a Parliamentary Question but perhaps the noble Lord can give an undertaking that either he or whatever part of Government is responsible—perhaps the Cabinet Office—will write instead and explain more fully the basis on which the comparisons have been made. That would be an interesting exercise.

Fundamentally, we are in territory where it seems that decisions have been taken pretty much on the hoof. Although I do not blame the noble Lord, we still have not received an explanation for the withdrawal of the two pilots in this area—the ones that we know took place. We are not allowed to know why they were stopped or what the evaluation was. I repeat now for the third time—that makes four questions in all—why were the pilots stopped, why have the Government refused the FOI request for the evaluation and will they now release it? If they are not prepared to do so, they must have something to hide or something which at least they wish to ignore. That is not a satisfactory basis for a change of the magnitude envisaged without discussion, other than by virtue of the amendment. However, I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Amendment 22

Moved by Lord Beecham

22: After Clause 6, insert the following new Clause—

“Provision of probation services

In any scheme (including pilots) for the supervision of offenders under sections 2 to 6, probation trusts and local authorities shall not be precluded from tendering for contracts.”

Lord Beecham: Well, my Lords, I return to the dance floor to gavotte once again with the Minister. The issue of risk is serious because it illustrates the potential dangers of this binary system of provision, to which I referred earlier. The definition of the categories of risk is somewhat controversial, to put it mildly, but we leave that aside for the moment. The probation service will not be responsible for low and medium-risk offenders, as defined, and is not even allowed to tender for these offenders. Yet high-risk offenders will be consigned exclusively to the probation service.

As I indicated earlier, there is a movement between categories of some 25%, suggesting that something like 15,000 people were moved from the medium to the high-risk category. How will that be dealt with under

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the contracts? At what stage will the contractor who was looking after offenders on the basis that they were medium and low risk be required to notify a change of risk? Will they indeed be required to do so? Will they be able to make that assessment? Will they be required to advise the probation service about it? These seem to me to be important questions.

The National Association of Probation Officers has produced some very interesting examples of people who were not regarded as high risk for the purpose of their current treatment. In recent documentation, NAPO actually gives 52 examples of so-called medium-risk cases. These include an offender previously convicted of Section 20 wounding, of a recent assault, who was regarded as medium risk. Another was convicted of wounding and had previous convictions for the possession of cocaine. Another was convicted of manslaughter and also had a previous conviction for manslaughter, but he was regarded as only medium risk. A current offender convicted of grievous bodily harm, with previous convictions for criminal damage and possession of a knife, was also regarded as medium risk. There was an offender with a Section 20 wounding conviction who had previously been involved in a Section 18 wounding, a knife possession, burglary and criminal damage; again, it was a medium-risk case.

One might ask what kind of assessment this is. Why are these people not regarded as cases which should properly be dealt with by the probation service? The Government acknowledge that the probation service has the qualifications and skills to deal with these offenders. Why is it that under the new arrangement these so-called medium-risk offenders, with all their past convictions, will be beyond the reach of the probation service? That is no good for them, and potentially dangerous for the rest of us. There are clearly very real risks in this course. My next quote is not from a Treasury civil servant and not from the National Audit Office, which the Minister affects to discount. It is from the Chief Inspector of Probation’s submission to the consultation document. She states:

“The interface between the dynamic management of risk of harm and PbR model, with its focus on reducing reoffending, in our view creates an inherent tension. We do not believe that this tension can be successfully managed within the framework proposed. Any lack of contractual or operational clarity between the public and private sector providers will, in our view, lead to systemic failure and an increased risk to the public”.

Of course, one might say that she has an interest because she is the Chief Inspector of Probation; but she is an inspector, not the probation service as such. It is even noted that the Police and Crime Commissioner for Devon and Cornwall, who I think is a member of the Conservative Party, has said that:

“I feel the risks are very high here. Probation do a very, very good job and I am concerned about the future”.

I suspect that many noble Lords—there are not too many of us in the Chamber—will share those concerns. We are talking about serious risks and a system which, on the face of it, seems unlikely to be able to cope properly with them. That is something which this amendment seeks to address. Although I will not press it to a vote tonight, it is certainly something to which we will want to return on Report. I beg to move.

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Lord McNally: My Lords, I am not sure how this has come about—I have been advised not to gloat because it might be our fault rather than that of the noble Lord, Lord Beecham—but the risk amendment is Amendment 23; he has just moved Amendment 22. To save him having to speak to Amendment 22 later, it may help if I say that we understand the need to bring a wide range of providers in. We are helping a number of staff within probation trusts who have already expressed an interest in being part of a mutual. On 20 May, the Government announced a package of measures to support the voluntary sector and public service mutuals, in particular through the Cabinet Office mutual support programme, which is providing intensive one-to-one support to prepare the first cohort of seven fledging probation mutuals for the competition. Although we do not believe that a probation trust should itself be able to compete, we will be bringing forward this solution—of mutuals—and of course we can explore that later.

I turn to Amendment 23, to which the noble Lord has just spoken. The amendment will require the definition of risk of harm to be prescribed by statutory instrument and subject to the affirmative resolution procedure. While I do not agree that there is a need to prescribe the definition of risk of harm by statutory instrument, I welcome the opportunity to explain how risk of harm is assessed and to reassure noble Lords that the assessment of risk is not simply a tick-box exercise.

The Offender Assessment System provides a structure for National Offender Management Service staff to assess an offender’s static and dynamic risk factors and risk of serious harm. It is a nationally recognised and understood tool that is supported by national guidance for probation and prison staff. The OASys combines actuarial factors, such as age at first conviction and gender, and dynamic factors such as substance misuse or anti-social attitudes, as well as clinical judgment. Following a structured assessment process, offenders are allocated to a risk of serious harm category that ranges from high to medium to low. A range of potential future harms are considered, including harm to self, to staff, to known victims and to members of the public. Within the current assessment process, there are already agreed definitions for what constitutes high to low risk of serious harm. “Serious harm” is defined as an event which is life threatening and/or traumatic, and from which recovery, whether physical or psychological, can be expected to be difficult or impossible. The risk of serious harm is the likelihood of this event happening.