Perhaps inevitably, I ask myself whether members of the youth offending team should be obliged to work with these young people if they hardly know them. I came across a case quite recently where a young man pleaded guilty to robbery with a knife and was looking at a two-year sentence. He had been in London for only a relatively brief time and was pretty much unknown to the YOT which had the responsibility for him. Is it right that the members of the team should have no discretion in whether they have continuity of supervising this young man when they do not know him? That is a practical problem. I agree with the noble Baroness’s general points that if there can be continuity it is preferable. We need to give discretion to the professionals involved. My experience is that they certainly will want to continue supervision if at all possible.

The noble Baroness, Lady Linklater, described Amendment 15, which gives the YJB responsibility up until the age of 21, as “whistling in the wind”. Here again, I agree with the sentiments behind this, but can see a number of practical problems, not least that parents or responsible adults are very often encouraged to be part of the sentence process. That may well not be appropriate for somebody who is over 18 but under 21. One would have to look at the sentences if one were to make that amendment.

There is a very serious piece of work to be done looking at the outcomes of YOTs versus the outcomes of adult probation providers for the 18 to 21 year-old group, because they have a different approach. I would say that the YOTs have a more caring approach, if I can use that word, to the people they deal with. The noble Baroness has raised a very profound question regarding people in the 18 to 21 age group and I agree with the general thrust of what she is saying. I presume she is not moving to a vote, so I leave it at that with my general support.

Lord Woolf: My Lords, I would like to express my general support for what the noble Baroness, Lady Linklater, has proposed and said and also for that which has been said by the noble Lord, Lord Ponsonby.

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I venture to suggest that anyone who has experience of dealing with young offenders in the courts would come to exactly the same conclusions as they have expressed. They have very good reasons to advance their comments. The position of those aged 15-plus to 18 is a particularly difficult area which has been neglected largely by the approach of the criminal justice system until now. I particularly urge that what the noble Lord, Lord Ponsonby, has said about that group is taken into account.

Lord Ramsbotham: My Lords, I, too, support the amendments so comprehensively spoken to by the noble Baroness, Lady Linklater. One reflection on what she has been saying about consistency and continuity has come to me about the involvement of the probation service with the supervision of young adults which it admittedly has not been very good with in recent years.

One thing that worries me about the thought of the professional probation service in future being responsible only for high-risk offenders is that young probation officers are not going to have the chance to cut their teeth on the low and medium-risk offenders on which they build up the expertise which they can then go on to apply to the higher risk offenders. One of the cases that is frequently quoted against the probation service is the case of a man called Sonnex who murdered while he was on probation supervision. He was under the supervision of a very young and inexperienced probation officer who should not have been put in charge of so serious an offender. I hope that the Minister will reflect on this and on the importance of career development for the National Probation Service, particularly for those who have to deal with this very important group of young adults.

6 pm

Lord Ahmad of Wimbledon: My Lords, I thank all noble Lords who have taken part in this debate, in particular my noble friend Lady Linklater for tabling her amendments.

Amendments 4, 6 and 15 all relate to the supervision of young adult offenders. The aim of Amendment 4 is to exempt offenders sentenced when they were under 18 from receiving top-up supervision, even if they were 18 or over when released from custody. Amendment 6 is, I understand, an alternative approach to Amendment 4, because it applies to those offenders who are under 18 when sentenced and requires that such offenders may be supervised by a member of the youth offending team. The last amendment in this group, Amendment 15, relates to offenders subject to detention and training orders—or DTOs—and, as I understand it, would apply top-up supervision to offenders if they were 18 or over at the halfway point in their sentence and they were under 21 on the last day of the supervision period.

At the outset, I should say that we believe there are a number of technical issues with these amendments, which I shall briefly highlight. However, like the noble Lord, Lord Ponsonby, I am generally sympathetic and understand totally the general thrust of the amendments as tabled. Amendment 4 would mean that an offender

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sentenced when under 18 years of age, regardless of sentence and regardless of their age on release, would not be subject to top-up supervision. Although not part of the amendment, this would in effect render Clauses 4 and 6 redundant, since they set out how offenders turning 18 during custodial sentences are supervised. In response to Amendment 4, I also stress that the Government believe that our commitment to provide 12 months’ supervision should apply to all those aged 18 and over when they reach the point when they would be released from custody.

We all recognise that offenders who have just turned 18 can have different needs from older adult offenders. The National Offender Management Service has been developing and translating the evidence base to support more effective targeting of interventions with young adults in custody. We want to work with providers to ensure that their needs are met as they move back into the community. When supervising young adult offenders who have just turned 18, we will expect providers to recognise this difference and tailor their supervision to the particular needs of the group—and, as my noble friend highlighted, they are particular needs. It is certainly in the interests of providers to do so, because this is an important and challenging group in terms of reoffending. To make a significant change in the levels of reoffending requires us to tackle this group and recognise the support they need as they transition into adulthood and adult services. Young adults are at the peak age for desistance from offending, and we want to ensure that they are given every opportunity to desist sooner.

I do not believe that supervision is a hindrance for young adult offenders. In fact, the Government see this as a real opportunity for real support for young adult offenders, not as something that they should be excluded from. As my noble friend acknowledged, at this age, young people as they transition to young adults are looking for greater levels of support. Therefore, the supervision element will surely assist them and provide an opportunity for that development. So I hope that my noble friend can reconsider and withdraw this amendment.

Amendment 6 offers an alternative approach. It also deals with the application of top-up supervision. In short, it is designed to ensure that any offender who was sentenced when under 18 and who is released aged 18 or over, so is subject to top-up supervision, must be supervised by a youth offending team—or YOT. I say this is an alternative approach because, if Amendment 4 were to be adopted, no offenders sentenced when they were under 18 would be subject to top-up supervision. That said, I understand the thinking behind this amendment. The fact is, however, that these offenders may under current arrangements be supervised by probation providers.

Under the current arrangements, when the offender’s behaviour is challenging or when there are additional offences yet to consider, it can be agreed that it is more appropriate for probation providers to supervise the offender on release rather than a YOT worker. This is a decision that happens every day between probation and YOT professionals, based on their professional expertise, taking account of the interests of the particular

25 Jun 2013 : Column 700

offender and their particular needs. My noble friend Lady Linklater and the noble Lords, Lord Ponsonby and Lord Ramsbotham, all referred to the importance of the professionals’ expertise and their particular needs. It is that professional expertise that we want to home in on. After all, who are we seeking to assist but the young person, in ensuring that their needs are met? We believe that this flexibility for dealing with young adult offenders on release should be retained, because it is likely to provide for the most effective ways to rehabilitate this crucial group. Put in a summarised form, it empowers professionals to make the best decision in the interests of the given individual.

Finally, in this group, I turn to Amendment 15, which relates to Clause 6. The clause deals with offenders serving detention and training orders who turn 18 before or at the halfway point of their sentence. The DTO is the main custodial sentence for under-18s. It is imposed for a fixed period of months, with the first half spent in custody and the second half under supervision in the community.

Just as an aside, while I have not been involved from the magistrates’ point of view, I have worked with such teams in the community and I have seen the practical benefits of the Youth Justice Board. In my own experience as a councillor, a community park was created down to the efforts of that particular team, and it was amazing what they went on to do in the community on their release.

Clause 6 provides for top-up supervision for offenders serving DTOs who turn 18 before they are released from the custodial part of their sentence. In this way, as with other adults on release, they will receive an overall period of 12 months of supervision in the community. I am not totally clear about the intended effect of this amendment, but it appears from what my noble friend has said to be an attempt to carve out a cohort of young adults who qualify for YOT supervision. As tabled, it applies top-up supervision to offenders who turn 18 at or before the halfway point of the DTO and would be under 21 on the last day of the supervision period. The additional requirement in this amendment, that the offender must be under 21 on the last day of the supervision period, is unnecessary because, even if an offender was sentenced on the day before their 18th birthday, given that the maximum period of a DTO is two years, it is inconceivable that any offender would be 21 or over at the end of the supervision period.

By removing and replacing proposed new Section 106B(1)(b) of the 2000 Act, the amendment would also remove the exclusion of those offenders sentenced to a 24-month DTO. That provision is important, because a 24-month DTO includes 12 months of supervision, so top-up supervision is unnecessary. As I said, I do not want to go into the technical details but, in short, the Government believe that it is important that those sentenced to the shorter DTO sentences who are 18 at the halfway point should receive an overall period of 12 months of supervision in the community as we are providing for other adult offenders. I stress again that it is the same period of supervision, but it need not be the same type of supervision. That is why we have flexibility in regard to tailoring services

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to young adult offenders. I acknowledge the fact that there is no one-size-fits-all approach in this way of dealing with young offenders.

I shall pick up on a couple of points that were raised during the debate. My noble friend Lady Linklater talked about delivering top-up supervision for those sentenced as juveniles who are turning 18. Arrangements for supervision of young offenders on release from a DTO are flexible, as I have already said, which allows for local agreement as to the most appropriate provider of supervision. I assure her that it will be tailored to the individual circumstances of the offender, their age and the risk of reoffending—a point well made by the noble Lord, Lord Ponsonby. The Bill provides for supervision top-up to be delivered by either the YOT or probation providers.

My noble friend also referred to the issue around transition, which was a very important point. I assure her that the Ministry of Justice, NOMS and the Youth Justice Board recognise that transition between youth and adult services is a potential point of vulnerability for young people. Indeed, we all acknowledge that. The MoJ, the Youth Justice Board and NOMS are already working closely together to help improve support for young people who are transferring between the youth and adult justice systems. For example, in September 2012 the YJB and NOMS respectively launched the transitions framework, to provide guidance for providers working with young people in the community, and the transitions protocol, to guide those working as custodial practitioners. Those promote better practice and aim to improve information sharing. NOMS and the YJB have already invested over £4.1 million in the development of the youth-to-adult portal, to improve the quality and quantity of information transferred between youth offending teams and the probation services. We are now looking to see how this service may be extended for use with other providers.

We all agree that this is a crucial group, with particular needs that need particular attention. I associate myself entirely with the sentiments of my noble friend and those of the noble Lord, Lord Ponsonby. We do need to tackle those needs directly, but it is our view that the Bill gives us the opportunity to do that, and to achieve exactly what we seek. I therefore hope that my noble friend is reassured, that she recognises the Government’s commitment to that group, and that she feels able to withdraw her amendment.

Baroness Linklater of Butterstone: I thank my noble friend for that comprehensive reply—and for pointing out the technical hitches. However, the message that we have been given about flexibility is much more important. It is important that inexperienced and new probation providers are not brought into this scene. Transition is, of course, fantastically important, as is professional expertise. Part of my theme was that the combination of partnership working between various professionals in the field—the YJB, the YOTs and the probation service, and also other services working with families in the community—has been developing, and makes a tremendous difference to the life chances of those young people. If that is combined with flexibility, it will work in everybody’s interests.

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The YJB is particularly keen for families to be more involved, even when their offspring have reached the age of 18. We all know that, even if it is not apparent, such young people are often very immature and in need of family support—when it is there, of course; very often it is not.

In general, the landscape is enlarging with partnership working, which is becoming very constructive, and will be even more so if we can be sure that this very vulnerable group, which hitherto has not been entitled to any kind of supervisory help, will have it in a properly tailored and managed way. Bearing all that in mind, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Moved by Lord Woolf

5: Clause 2, page 2, line 37, at end insert—

“(7A) The Secretary of State must have regard to the particular needs of women when determining the requirements that should be specified by him under this section.”

Lord Woolf: My Lords, Amendment 5 is grouped with Amendment 18, and I hope that I shall be in order in addressing my remarks to both of them. Amendment 5 is in my name, and Amendment 18 is also in the names of the noble Lords, Lord Beecham and Lord Ponsonby. The two amendments deal with the particular position of female offenders, and are designed to give effect to an understanding that I hope is now generally accepted—that women offenders undoubtedly have particular needs. They are—to echo the words just used by the noble Lord, Lord Ahmad—a special group, who need particular attention. I hope that the Minister will feel that the amendments acknowledge what he has said previously during the progress of the Bill about his concern about female offenders in custody. He has expressed that concern eloquently, and I endorse what he has said. I hope that he, in turn, has now come to accept that it would be a significant move forward if a recognition emphasising the requirements of female offenders were included in the Bill, which takes a novel approach to dealing with the problem of reoffending.

6.15 pm

Clause 2 deals with what an offender who falls within the provisions concerned will be required to do. The requirements specified by the Secretary of State apply during the period of supervision, and the Secretary of State is required to,

“have regard to that purpose”—

the purpose of rehabilitation—

“when specifying requirements under this section”.

The amendment to Clause 2 includes a requirement that,

“when determining the requirements that should be specified by him”

for the purpose of rehabilitation, he should have regard specifically to “the particular needs” of female offenders.

Amendment 18 deals with those who have to make arrangements for offenders, and would do the same thing with regard to providers of probation services, to ensure that they,

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“make provision for the delivery of services for female offenders which take account of the particular needs of women”.

It has long been felt that the admirable report of the noble Baroness, Lady Corston, has not received, in the form of legislation, the attention that it should have done. She was hoping that she could be here today to support these amendments—she certainly does support them—but unfortunately she is suffering from a disability that would make it uncomfortable for her to be here. I am sure that the House hopes that she makes a speedy recovery from that minor disability. I beg to move.

Lord McNally: My Lords, we could have a debate now, although it is a very thinly attended House, but it may assist the House if I explain that the reason why I am not bringing forward a government amendment now, as I said in Committee that I would, is simply to do with the machinery of getting clearance through something called HAC. I am not sure whether it is still a secret that Cabinets have committees, but that stands for the Home Affairs Committee. It is my intention to table an amendment for Third Reading, which I hope will cover the concerns expressed by the noble and learned Lord, Lord Woolf. I promise to consult him on that amendment, and that might be the occasion for a full debate on the subject, perhaps with the noble Baroness, Lady Corston, restored to health and ready to make a contribution.

Baroness Howe of Idlicote: My Lords, despite that important announcement, I want to say a very few words in support of the amendments of the noble and learned Lord, Lord Woolf. When we are taking into consideration the special needs of women and the fact that they might have been subject to domestic violence and have all sorts of other problems that need special attention, we should also remember the damage that imprisonment is likely to do to their family and the potential damage to future generations of children, who are much more likely to offend. I did not intend to take up time; I just wanted to remind. The Minister might like to remember those points when addressing the points that he has told us he is going to address.

Lord Woolf: My Lords, in view of what the Minister has said, which I take as a very positive indication to the House and to me, I do not propose to press the amendment further at this stage.

Amendment 5 withdrawn.

Amendment 6 not moved.

Schedule 1 : Supervision requirements

Amendment 7

Moved by Lord Ahmad of Wimbledon

7: Schedule 1, page 22, line 12, leave out “condition” and insert “requirement”

Lord Ahmad of Wimbledon: My Lords, the government amendments in this group make a number of minor technical changes to the Bill. In essence, they ensure that terminology is consistent within the Bill and with other legislation.

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Amendments 7 and 8 relate to the new “drug appointment requirement”. The amendments replace, in two places in Schedule 1, the word “condition” with “requirement”, which is the term used with other requirements of the new supervision period and is consistent with the title of the requirement.

Amendment 10 relates to the provisions dealing with supervision default orders: that is, when an offender has failed to comply with a condition of their supervision. The amendment simply clarifies that copies of the supervision default order must be sent to the supervisor who is responsible for supervising the offender during the supervision period.

Amendments 11 to 14 relate to Clause 5 and the arrangements that exist where an offender is subject to consecutive sentences. The amendments replace the term “offender” with the more usual construction “P”. This is consistent with the terminology used in the Criminal Justice Act 2003, which Clause 5 amends.

Finally, Amendment 20 relates to Schedule 6, which deals with offenders sentenced by service courts. The amendment clarifies the position in that it ensures that the definition of “the appropriate court”, which relates only to civilian courts, does not apply to overseas community orders under the Armed Forces Act 2006. As I said, these are small clarifications and technical amendments. I beg to move.

Lord Beecham: My Lords, there comes a temptation to move that any of these riveting amendments be piloted. I am happy to concur with the Minister’s proposal.

Amendment 7 agreed.

Amendment 8

Moved by Lord Ahmad of Wimbledon

8: Schedule 1, page 22, line 33, leave out “condition” and insert “requirement”

Amendment 8 agreed.

Clause 3 : Breach of supervision requirements

Amendment 9

Moved by Lord Marks of Henley-on-Thames

9: Clause 3, page 3, line 42, after “scale,” insert—

“( ) recommend to the Secretary of State that the notice given to the offender under section 256AA be varied in one or more ways which the court may specify,”

Lord Marks of Henley-on-Thames: My Lords, this is an amendment that I moved with my noble friends in Committee, and I do not propose to repeat extensively the arguments that I put then. They are in essence that the present options for sanctions under new Section 256AC that are available to a court upon breach of supervision requirements are in essence punitive and involve a short term of imprisonment, a fine, an unpaid work requirement or a curfew. We stress that the court may well find it necessary and more appropriate on

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investigation of a breach of supervision requirements to have regard to the rehabilitation of the offender so as to make desirable changes to those supervision requirements. The court having investigated the breach will be in the strongest possible position to make such a recommendation. I have in mind in particular the power of the Secretary of State to make requirements to participate in particular activities in accordance with instructions given by the supervisor: drug-testing requirements, drug appointment requirements and so forth.

When we proposed the corresponding amendment in Committee, my noble friend the Minister was kind enough to say that we had made a sensible and practical suggestion. He promised to examine the technicalities of the process and to return to the matter at a later stage. Therefore, I now look forward to hearing from him the results of that examination. I beg to move.

Lord McNally: My Lords, my noble friend has accurately reported my remarks in Committee, which did not, he will have noted, commit me to bringing forward a government amendment; I have taken legal advice on that. However, I am grateful to him for the characteristically clear and reasoned way in which he has made the case for Amendment 9.

I said in Committee that my noble friend’s amendment seemed a practical suggestion and I undertook to take it away and examine the technicalities of the process. I am happy to say that on the issue of principle that the amendment raises, the Government are persuaded by my noble friend’s arguments.

There might well be circumstances in which a court dealing with breach concludes that the rehabilitation of the offender would be better addressed by a variation of the Secretary of State’s supervision conditions. The Government agree that it should be possible for courts to make a recommendation to the Secretary of State and that there should be a process for acting on that recommendation. This should apply whether or not a court decides to impose a sanction for breach. In other words, a court could impose a sanction and recommend that future supervision conditions be changed, or impose no sanction but make a recommendation.

That brings me to the question of how we best achieve this. I have sought advice on the legal position. There is nothing in law that would stop a court making a recommendation of this sort. A magistrate or district judge could do this simply by stating their opinion about the requirements that the offender is subject to when summing up.

An explicit provision for this in the Bill would therefore be unnecessary. It could be seen as restricting the discretion of the court to make recommendations in other areas where no specific power exists. It could also mean putting in place a new specific court process for making the recommendation, rather than the relatively informal process that would occur now.

To my mind, the more important question is how we put in place a process within prison and probation services for ensuring that a court’s recommendation is acted upon by those setting supervision conditions on the Secretary of State’s behalf. There is a precedent for this. Probation and prison instructions already set out a process for cases where courts make recommendations

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about future licence conditions at the point of sentence. This involves probation staff present at court recording the recommendation and passing it to prison governors.

There is a presumption that governors should implement the court’s recommendation, except in cases where the offender’s circumstances have changed between sentence and release. I am happy to make a commitment that we will put in place a similar process for breach of supervision, with a similar presumption that those setting conditions should act on the court’s recommendation unless there are exceptional circumstances. To make sure that courts are aware of their ability to make recommendations to the Secretary of State, the Government will also discuss with the Sentencing Council whether it could include this in future guidance on dealing with breach of supervision.

In summary, I reassure my noble friend that he has made a persuasive case. I know he believes that it is better to get the processes right and get these things done properly at the sharp end rather than simply write things into the Bill. What I, as a layman, initially took to be a very good idea has been confirmed as such by the professional and legal advice that I have been given. I am not sure whether a Pepper v Hart judgment could be applied to what I have just said, but it is a very clear indication that we want to put the noble Lord’s very good suggestions into practical effect. I hope that I have reassured the noble Lord in that respect.

6.30 pm

Lord Marks of Henley-on-Thames: My Lords, I am not sure whether this is a case of Pepper v Hart, because I do not think that there is an ambiguity to resolve. I am very grateful to my noble friend the Minister for that very full answer. I accept, of course, that there is nothing in law to prevent a court making a recommendation of the kind that he indicated. I am also very grateful to him for the care he has taken to ensure that the Government can give a commitment both as to the court making recommendations on a breach hearing and to ensuring that such recommendations are given effect. Both halves of that equation seem equally important. I of course accept the Government’s commitments on these points and therefore beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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

Amendment 10

Moved by Lord McNally

10: Schedule 2, page 24, line 9, at end insert—

“( ) Section 219(1)(b) applies as if the reference to the responsible officer were to the supervisor.”

Amendment 10 agreed.

Clause 5 : Consecutive terms

Amendments 11 to 14

Moved by Lord McNally

11: Clause 5, page 6, line 28, leave out “the offender” and insert “P”

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12: Clause 5, page 6, line 30, leave out “the offender” and insert “P”

13: Clause 5, page 6, line 35, leave out “the offender” and insert “P”

14: Clause 5, page 6, line 37, leave out “the offender” and insert “P”

Amendments 11 to 14 agreed.

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

Amendment 15 not moved.

Amendment 16

Moved by Lord Ponsonby of Shulbrede

16: After Clause 7, insert the following new Clause—

“Duty for all providers of probation services to participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes

(1) Section 6 of the Crime and Disorder Act 1998 (formulation and implementation of strategies) is amended as follows.

(2) In subsection (1) after “responsible authorities” insert “including all future providers of probation services”.

(3) In subsection (1)(a)(i) after “disorder in the area” insert “to include participation in, and accountability to, community safety partnerships, and co-operation with crime and disorder reduction partnerships and local integrated offender management schemes”.”

Lord Ponsonby of Shulbrede: My Lords, Amendment 16 would put a duty on all providers of probation services to,

“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.

Following Second Reading, I entered into correspondence with the office of the noble Lord, Lord McNally, on this question and was referred to Section 6 of the Crime and Disorder Act 1998, which places duties on various responsible authorities to formulate crime reduction strategies, which in practice is done through community safety partnerships. In Committee, the noble Lord, Lord McNally, argued that there does not need to be further legislation on this matter and stated:

“Integration at local level works best when it is not mandated centrally”.—[Official Report, 5/6/2013; col. 1217.]

London Councils, which has briefed me on this amendment, argues that there is clear evidence from the Work Programme that commissioning services from the market, when applied on a large scale and managed on a national scale, can lead to low levels of engagement with local partners and therefore low levels of effectiveness. Therefore, the purpose of this amendment is to ensure that community safety partnerships have a role in performance managing the future delivery of contracts. There should be accountability measures within the contracting process and action should be taken where providers fail adequately to work in partnership at a local level. Community safety partnerships should have access to performance data from prime and subcontractor providers in order to have a local oversight

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of delivery. Although I was very grateful for the advice that I received from the noble Lord’s office, the purpose of these amendments is to put meat on the bone so that local authorities can properly play an influential and well informed role in managing local provision of services. I beg to move.

Baroness Hamwee: My Lords, I declare an interest as one of the three joint presidents of London Councils. I have seen the briefing from that body and support the points that have been made. I entirely agree with my noble friend that “bottom-up” is best, but sometimes structure is needed to allow these things to function well. I am not sure whether the example I am going to give is appropriate, but I will give it anyway.

In the London borough of Sutton, where this issue is “bottom-up” but structured, there is a very interesting partnership between the local authority and the police. The structure is such that there is joint management of certain services provided by those two parts of the public sector. Sutton tends not to go in for strident self-publicity so it does not seem to have made very much of this, but what it has done is extremely interesting. The joint management whereby the two arms are brought together works well as there is joint accountability. Whether or not that is a good example, I take the point about the need sometimes to have a framework. It is much better if that can happen locally but facilitation through legislation does not go amiss. If the Government still maintain that there is no need for this, are they considering issuing any guidance? I would rather not have central government guidance on what should happen locally, but sometimes a little prompting is helpful.

Lord Ahmad of Wimbledon: My Lords, Amendment 16 seeks to ensure that all providers of probation services are required to,

“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.

As was said in Committee, the Government are clear that nothing we do to tackle reoffending will work,

“unless it is rooted in local partnerships”.—[

Official Report

, 5/6/2013; col. 1217.]

I have seen how that works in practice. We absolutely expect future probation providers to engage with the relevant statutory partnerships. It will be in providers’ interests to work with other partners to achieve the best results. Our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.

In tabling the amendment, the noble Lord seeks to ensure that all probation service providers are both members of, and accountable to, community safety partnerships and other crime reduction initiatives such as integrated offender management. Section 5 of the Crime and Disorder Act 1998 sets out who should be the responsible authorities for the reduction of crime, disorder and anti-social behaviour as well as for reducing reoffending. A provider of probation services will be a responsible authority for these purposes where the arrangements entered into with the Secretary of State provide for it to be a responsible authority.

25 Jun 2013 : Column 709

As a responsible authority, current probation providers already have a number of obligations including being involved with the formulation of the local CSP strategy and plan for community safety, attending CSP meetings and sharing depersonalised information with the other four responsible authorities. Community safety partnerships are subject to overview and scrutiny by the local district council. As a responsible authority, providers of probation services already participate in this process. Nothing in this Bill will amend or change the Crime and Disorder Act. Providers will need to demonstrate how they will work in and strengthen local partnerships if they are to be successful in bidding to deliver probation services. Specifically, we are including a requirement for providers to evidence in their bids how they will relate to and incorporate integrated offender management arrangements into their proposal and contracts will reflect this. I hope my noble friend is reassured by that.

We are reviewing the current statutory partnership requirements to ensure they are appropriately assigned and discharged in the new system and we envisage that the contracts will reflect the statutory partnerships providers are required to participate in. Furthermore, the National Probation Service and contracted providers will be required to develop effective operational and strategic partnerships with each other and agree their respective roles and responsibilities in relation to statutory partnerships to minimise duplication and maximise effectiveness. Once the system is up and running we will monitor local partnership working as part of obtaining assurances of the delivery of services and we will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.

I understand the noble Lord’s concern. Indeed, he approaches these issues with great expertise and I appreciate the sentiment behind this amendment. However, I fear that some unintended consequences may arise from it. The amendment would in effect mean that every provider of probation services in an area, no matter how big or small, would have to participate in and be accountable to community safety partnerships and other crime and disorder reduction partnerships. Different areas of the country will have different partnerships, of different sizes and with different challenges. The right approach is to look at this carefully before deciding which provider, at which level, is a responsible authority. A tailored approach, rather than a blanket one, seems to me to be the right way forward.

I have outlined the existing legal responsibilities and requirements on providers of probation services and reiterated our commitment to local partnerships, together with the steps we are taking to ensure that our reforms are rooted in local partnerships, so that offenders can access the broad package of support they need to get their lives back on track. I have also outlined potential unintended consequences of the amendment. I hope, with the clarifications I have given and the assurances I have made, that the noble Lord will be minded to withdraw his amendment.

Lord Ponsonby of Shulbrede: My Lords, the noble Lord said that appropriate requirements are being reviewed and that the Government are reviewing which provider may be appropriate at which level. He went

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on to talk about monitoring local partnership working. It seems to me that all of this is under review and we should have a better idea at this stage of the Bill what the actual requirements are going to be. London Councils has raised these concerns with us. The London Probation Service accounts for 25% of the whole country. If it is unclear and worried, as it clearly is, surely it has a right to expect more than just more reviews about appropriate levels. Surely there should be more meat on the bone— to use the expression I used earlier—about what the responsibilities of the local authorities will be and what information they will receive. Having said that, I hear what the noble Lord has said and I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17

Moved by Lord Ponsonby of Shulbrede

17: After Clause 7, 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 or commissioning contracts.”

Lord Ponsonby of Shulbrede: My Lords, Amendment 17 would make it possible for probation trusts to be able to tender for or commission future probation service contracts. The Government have said that it is open for probation trusts to convert to mutual status and to bid on that basis. I understand that assistance would be provided to trusts that wished to change their status into a mutual organisation in order to bid for the contracts. A mutual organisation would need its own financial backing and therefore any risk would be on the new financial backers of the mutual organisation and not on the Government. The Government argue that probation trusts as public bodies must not take financial risks. However, as we have heard from my noble friend Lord Beecham, there are many examples of government public bodies taking financial risks. In this context, it has been deemed that they must not take them.

If the new mutuals were to bid and win then of course the risk would be on their backers and not on the Government. This begs the question as to why the Government are unwilling to take on the financial risk. Do they believe that the contracts will be too risky for the public purse? It also raises the question of the need for the public probation providers to maintain competition with private providers. We have seen in recent years—I am thinking of the prison service—where the public sector has bid and won contracts back from private providers. My argument is that you need to maintain competence in the public sector in order to keep the private providers honest.

It is surely in the Government’s interest to maintain public sector competence and public sector capacity to ensure proper competition in the future. If there is inadequate interest, as there many well be, among probation trusts to convert to mutual status, what action will the Government take to ensure that this

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competition is maintained? It is very difficult—I would argue impossible—to oblige people to take on financial risk. The Government clearly want to offload their own financial risk. The argument and the purpose of this amendment is that is overwhelmingly in the Government’s interest to maintain public sector capacity to provide proper competition for the private sector. I beg to move.

6.45 pm

Lord Ahmad of Wimbledon: My Lords, I thank the noble Lord, Lord Ponsonby, for setting out his reasoning behind this amendment. I also thank my noble friend Lord McNally for doing a sterling job as a Whip on this amendment. Never let it be said that the noble Lord, Lord McNally, is not quick on his feet. I think he has broken all records in rushing over to the Box.

Amendment 17 would ensure that probation trusts and local authorities are not precluded from tendering for or commissioning contracts. As was said in Committee, I agree with the general intent of ensuring that existing providers, where much of the knowledge and expertise lies, should be able to compete for contracts, a point well made by the noble Lord. However, we do not believe that this amendment is necessary.

We want to see the broadest and most diverse market for the delivery of offender services in the future so we want as many organisations and entities as possible to be able to bid to deliver services. Nothing in our proposals specifically excludes public bodies, although such entities would need to be capable of bearing the financial and operational risks associated with the delivery of these services under payment by results. Delivery or commissioning by probation trusts themselves would be unlikely to meet those criteria given that we have announced that we will be dissolving trusts in their current form and creating a new national probation service.

However, I agree that we should do all we can to ensure a level playing field, as the noble Lord stated, for all those interested in delivering services. That is why our competition process is designed to allow a range of different kinds of entities, including alternative delivery vehicles and mutuals designed by individuals within the existing probation trusts, to be able to bid to deliver services. We have also increased to 21 the number of areas we want to commission services across in order to ensure that contract package areas are of a variety of sizes and values. This is to enable more medium and small organisations to join bids in order to take part in the delivery of services. I know that the Secretary of State himself is very keen to see small and medium organisations as part of this process.

A number of staff within probation trusts have already expressed an interest in being part of a mutual to bid and deliver services. On 20 May, the Government announced a package of measures to support the voluntary sector and mutuals. In particular, the Cabinet Office’s mutuals support programme is providing intensive one-on-one support to prepare the first cohort of seven fledgling probation mutuals for competition, including coaching on legal, financial and commercial issues. The contracts for this support, totalling more than £500,000, have recently been awarded.

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Local authorities may also play a part in the delivery of the new services—for example, as part of a provider’s supply chain—and will also be able to commission rehabilitation providers to deliver additional services in line with their own priorities. The amendment has changed somewhat from the one tabled in Committee to ensure that probation trusts and local authorities are not precluded from also commissioning contracts. The Government remain firmly of the view that commissioning contracts on the scale proposed and on a payment by results basis will be most effectively and efficiently carried out by a national function.

We are committed to commissioning and providing services that meet local needs, and we will ensure that the commissioning process is informed by engagement at police and crime commissioner and local authority levels. Probation service local delivery units will support the gathering of intelligence on needs and priorities at a local level, including from key partners—for example, local authority needs assessments—to feed into the commissioning process.

Contracts will be responsive to changing demands and priorities at local and national levels, new legislation and the wider commissioning context. Where commissioning priorities need to be adjusted, this will be done in consultation with the relevant stakeholders.

The noble Lord, Lord Ponsonby, raised the issue of apportionment of risk. He made a very valid point and it is one on which we have also been in discussion with officials. Perhaps I may write to the noble Lord on that specific matter. It is a concern and I, too, have sought clarification on it. He was perfectly right to raise it.

That aside, with the assurance that I will write to the noble Lord on that point, and with the other reassurances that I have given him about the proactive work within government to ensure that all organisations have an opportunity to bid to deliver services in a variety of ways, I hope that he will feel able to withdraw his amendment.

Lord Ponsonby of Shulbrede: My Lords, I thank the noble Lord for that response. He talked about a number of probation mutuals which are being established and which will be bidding for elements of work. My understanding is that these are smaller organisations than at the probation trust level and that they will be dealing with a particular expertise which is within the existing probation trusts. My point is that the organisations that form mutuals or that bid in some way will need to be large scale. If they are to be only smaller parts of probation trusts, then that expertise may be lost to the public sector, which was the burden of my introductory speech.

Having said that, I am obliged to the noble Lord for undertaking to write to me on the question of risk and I beg leave to withdraw my amendment.

Amendment 17 withdrawn.

Amendment 18 not moved.

Amendment 19

Moved by Lord Beecham

19: After Clause 17, insert the following new Clause—

“Veterans’ courts pilot

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(1) Veterans’ courts shall be established for the purpose of assisting the rehabilitation of ex-service personnel convicted of offences for which non-custodial sentences could be imposed by the trial court.

(2) Subject to subsection (3), before instituting the provision of veterans’ courts, 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 each House of Parliament.

(3) 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 to include consultation with magistrates, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.”

Lord Beecham: My Lords, this amendment replicates the one that I moved in Committee and embodies the proposal that I made when participating in the Second Reading debate. It seeks to address the particular needs of ex-service men and women, many of whom—sadly, rather too many of whom—find themselves in difficulties with the criminal justice system from time to time.

The intention behind the amendment is consistent with the line which we have persistently adopted on these Benches and which has been consistently rejected by the Government—that of piloting a new proposal. As I understand it from the Minister, there may be a sympathetic view of this proposal in government. Whether that extends to piloting, I do not know, but it would seem to make sense to adopt that approach.

However, the main point is that, as part of the military covenant, it should be accepted that there is a case for a special forum before which offenders who have been convicted of, or pleaded guilty to, crimes that would potentially carry less than a custodial sentence can be assisted in avoiding reoffending and become rehabilitated. That is on the basis that we owe people who serve their country in, as I said, often dangerous and difficult circumstances a particular duty.

The amendment follows the precedent of the United States, in which every state now has a veterans’ court manned by a judge, who may often have been the original trial judge, and at which a veteran mentor is available, together with other agencies, to assist the ex-service personnel who has committed a crime. It has proved a remarkably successful way of preventing reoffending in this particular vulnerable group.

Many of those who have spoken in your Lordships’ House—the noble Viscount, Lord Slim, and the noble Lord, Lord Ramsbotham, in particular—have expressed their support for this concept. I note, to my surprise, that even the Sunday Express—not, I confess, a paper that I would normally look to for endorsement—has embraced the concept with enthusiasm. The amendment offers a more sensitive way of dealing with a particularly important and vulnerable group as part of what ought to be a wide-ranging series of provisions in conjunction with the military covenant, which the Government have helpfully adopted. Having had a conversation with the Minister, I apprehend that some indication will be given that this proposal will be taken forward, perhaps as part of a wider-ranging series of provisions, about which we may learn something tonight or in the future. I would very much welcome that and, on that basis, I will certainly not be moving the amendment to a vote.

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Recently, a report has been published, commissioned by the Howard League for Penal Reform, and it may be helpful if I address some comments to what it has produced. Incidentally, I note that the Howard League commissioned this report as long ago as Armistice Day 2009, so it has been a long time in gestation, which perhaps is an indication of the importance of the project. It has focused its attention on ex-service personnel in prison. Of course, that is an important group but it is not by any means the biggest group of ex-offenders with whom we are concerned, given that—there are various estimates—there are probably 20,000 people at any one time in the criminal justice system who have served in the Armed Forces, of which the great majority have not been serving custodial sentences. I think that rather distorts the view that the report comes out with.

However, the report makes a couple of significant points. The first is that 25% of those surveyed were convicted of sexual offences, which is well over twice the proportion of prisoners generally. A bigger proportion have been convicted of violent crime, but the figure is not hugely disproportionate in comparison to the ordinary prison population—it is something like 10% or 11% greater. Even so, it is not an insignificant number.

The Howard League makes a number of very sensible recommendations in general about ex-service personnel in the justice system, pointing to the need for a greater emphasis on identifying those personnel at risk before they get to prison, and perhaps even while they are in service. It recommends that probation service standards should be revised to ascertain the status of ex-service personnel. We will then know—or, more particularly, the Howard League and, I guess, those with whom contracts are to be made will know—who are ex-service personnel. There should generally be more research on the characteristics of ex-servicemen in custody, but I would widen that to those who have come into contact with the whole justice system.

The league points out that a wide range of charities and other organisations are involved with service personnel. That is true, but it is something of a mixed blessing. I have heard it said that some of these charities are not particularly effective and, of course, there are so many that it is somewhat confusing. Moreover, according to the Royal British Legion, some of the initiatives in the voluntary sector tend to be reactive rather than, as it would put it, proactive—or, as I would say in better English, active—in pursuing these issues.

Some interesting developments have taken place, and I have no doubt that the noble Lord is aware of them, including a veterans in custody support scheme at HM Prison Everthorpe, which has links to service charities. There is also something called the Prison In-Reach initiative. The Cheshire probation service, interestingly, has a veteran support officer in each of its six offices. I do not know whether that is one for each or whether there is somebody available in each from time to time. It is also looking at a veteran support programme. In parenthesis, I wonder whether the Minister will ensure that such initiatives will survive the very reforms that we were discussing earlier today in a rather more contentious spirit than I hope will be the position on this matter.

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However the Howard League, having looked at the American experience, concludes that it is not appropriate to adopt it here. It did that on the rather superficial argument that veteran offenders should not, as a class, be treated any differently in the system from other offenders. That underestimates both the obligations that we have to this group of people and the particular characteristics that they have. I do not see that it necessarily follows that what is being proposed, which is, I repeat, not a separate court to try the issue of guilt or innocence, but one to deal with offenders who are not in prison, in a constructive way in order to avoid their reoffending. The conclusion does not necessarily follow from its analysis and I hope that it is one that the Government will not adopt.

As discussed in Committee, there are other examples of special courts, be they domestic violence courts or drugs courts. It could be argued that this proposal for a veterans’ court is an extension of that concept; it is not hugely out of kilter with the rest of the structure. In any event, I would urge that this group is important enough to warrant at the very least a piloting of what has proved to be an extremely successful process in the United States, with very substantial reductions in reoffending rates, to the extent of 100%, as I understand it, in Buffalo, which was an earlier one, and something like an 85% reduction in reoffending in Minnesota. A number of American states have passed separate laws about the treatment of their veterans. We are not suggesting that that should be the case, but a framework should be established within which their particular needs can be addressed for their benefit, and indeed for the benefit of the community.

I very much hope that the noble Lord will give his blessing to this and that we can take these matters forward in conjunction with appropriate other government departments, notably the Ministry of Defence and the Home Office Minister responsible for prisons. I hope that a conclusion can be reached that will assist these people, help society as a whole, acknowledge our debt to veterans and, at the same time, reduce the likelihood of society suffering from offences committed by this group. I beg to move.

Viscount Slim: My Lords, first, I thank the Minister for the quick conversation that we had on this subject of veterans’ courts. From that conversation I took away two points. The first was that the Minister is still not overly keen on having a trial of veterans’ courts. Secondly, but perhaps more importantly, he said that something had to be done about this subject.

I draw the noble Lord’s attention to the military covenant. The right honourable gentleman the Secretary of State for Defence has to make a report at a prescribed time on the state of the military covenant. In his meetings with various ministries to gather information, I would have thought that the Ministry of Justice would be paramount in the thinking and discussion to find out what the plan is for young veterans who do not have or need a custodial sentence but who need rehabilitation. What is the plan from the Ministry of Justice to achieve this? I also remind the Minister that, with the coalition deciding to get rid of 25,000 soldiers, this problem will get much worse. There has to be a

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plan. All I am asking is that if the Minister still does not wish to trial veterans’ courts, which I would be sad about and which I consider probably the best way to move forward, the Ministry of Justice must come up with a plan and a decision on how this problem will be handled. Therefore, I sit down and await the Minister’s plan.

Lord McNally: My Lords, I am particularly grateful for the way in which the noble Lord, Lord Beecham, put forward this amendment and for the contribution of the noble Viscount, Lord Slim. Both contributions show the value of chats outside the Chamber; they bring rich dividends. I should say to the noble Viscount that I still have my doubts about veterans’ courts but I shall return to that later in my remarks. I accept fully, and it was clear from the remarks of the noble Lord, Lord Beecham, that there is no division between us about our commitment to fulfilling the military covenant. As the noble Viscount, Lord Slim, made clear, the Ministry of Justice has a positive part to play in ensuring that in carrying out that covenant we address the problems faced by ex-servicemen who fall foul of the criminal justice system to see whether and where they need specific assistance in rehabilitation.

I am cautious because I think that we have to be clear about the nature of the problem. The noble Lord, Lord Beecham, referred to the American experience and I am not afraid to look at where good ideas have worked in the criminal justice system in the United States.

However, let us be clear: a minority of offenders in the criminal justice system served in the Armed Forces before being convicted. NOMS works with the Ministry of Justice, the Ministry of Defence and the Department of Health to ensure that ex-armed services offenders can access appropriate support and rehabilitation services. All probation trusts routinely supervise and provide offender management for former Armed Forces personnel sentenced to community orders. But on the latest statistics available—this is why it is important to get things into perspective—the number of regular veterans in prison is estimated to be 2,820. That is about 3.5% of the prison population. About 5,860 offenders in the community, approximately 3.4% of community offenders, had served in the regular Armed Forces. In both cases, more than 75% are ex-Army, the others being ex-RAF or ex-Navy.

In prisons and in the community we are dealing with a very small number of people. Another statistic that I have seen is that 99% of those are men, which is not surprising. But that is the nature of this. However, as I told the noble Lord in our meetings in the Lobby, one of the characteristics of this Government is that when someone has a good idea we respond to it positively and constructively. In a way, we are doing that immediately. I know that the noble Lord and his honourable friend David Anderson MP, the Member for Blaydon, will be meeting my right honourable friend Damian Green to talk about the treatment of ex-service personnel in the criminal justice system.

As my noble friend Lord Ahmad said in Committee, we are aware of concerns about ex-service personnel in the justice system, but we need to make clear that the vast majority of the men and women who served

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in the Armed Forces go on to lead successful law-abiding lives. Indeed, it is often their experience in the services that provides them with the necessary skills and ethos to succeed in civilian life. But some ex-service personnel struggle in civilian life and it is right that we do what we can to ensure that the transition from the Armed Forces to civilian life is supported. I draw attention to the good work that the Ministry of Defence and the Armed Forces already do in this field, and the important work of the voluntary sector.

For those ex-service personnel who do end up in the criminal justice system and ultimately in prison, there is already specific support. Guidance on dealing with ex-service personnel in prison has been produced by the Ministry of Justice and the MoD along with the British Legion, SSAFA and rehabilitation organisations such as Nacro. In most prisons, we now have veterans as custody support officers.

The noble Lord, Lord Ramsbotham, mentioned in Committee the problem with some offenders making up or exaggerating their service records. We need to ensure that we are able to identify as early as possible offenders with a genuine service history. We will also expect new providers of probation services to provide tailored services for such offenders, including addressing the particular needs of ex-service personnel. My noble friend Lord Ahmad said in Committee that we would not bring forward government amendments in the Bill to create a new veterans’ court. I also want to make it clear that this does not mean that we have ruled out a pilot of the veterans’ court. We have in fact not ruled out anything in this regard. I should also clarify that it is unlikely that a pilot of a veterans’ court would actually need new legislation.

What we need to do is give some careful thought to the best way to support ex-service personnel in the criminal justice system. It is clear that the amendment is designed to enable the Government to make a further commitment to look at the issue of veterans in the criminal justice system, and that I am happy to do. It remains unclear whether the proposal is to create a body to divert, where possible, ex-service personnel from the criminal courts or a criminal court with specifically experienced judges—more akin to a drugs court or a youth court—or whether it is a body designed to oversee the rehabilitation of ex-service personnel offenders sentenced by the criminal courts. Further work needs to be done on this matter, but I hope that, due to the way I have responded, the noble Lord will accept that we are being constructive.

7.15 pm

The noble Lord referred to elements of the US model and he quoted the example of the court in Buffalo. But we have diversion courts, we have the ability to defer or suspend sentencing, we have specialist support for mental health or drug problems and we have the ability to review community orders. The American model may not be all that original. We do need to consider how best to identify ex-service personnel as early as possible and target the use of existing powers to appropriate offenders.

It is worth establishing the scale of the problem which, as I have outlined before, is relatively small in terms of overall numbers. We have had talks with the

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MoD, the judiciary and the Judicial College, the Courts Service, the prisons, the probation service and the voluntary sector to see whether any ex-service personnel are falling through the gaps, and to see what we can do to ensure that that does not happen.

We may find that we should pilot a specialist court or a specific court to review process for ex-service personnel. But we should first identify specifically what that pilot should be testing and only then should we consider whether a change in the law is needed to enable that to happen.

We are all agreed on the importance of supporting ex-service personnel and the need to work in conjunction with the many public and voluntary sector organisations with an interest. We have not ruled out any of the various approaches and we will look at ways to address this important issue. By raising this, the noble Lord, Lord Beecham, has done us a service. I do not think that the Bill is the particular vehicle for carrying this forward, but I hope that I can assure him, the noble Viscount, Lord Slim, the noble Lord, Lord Ramsbotham, and other noble Lords interested in this important matter that we will take this idea forward and look constructively at what will work and how best to make it work. I hope that the noble Lord will withdraw his amendment.

Lord Beecham: My Lords, I had hoped that there would be a clear acceptance of the notion that a trial should be made of the veterans’ court concept. I appreciate that it is probably not necessary for legislation for this purpose, but there has to be a peg on which to hang the proposal and this was a suitable example for such an exercise. Given that we are not talking about large numbers and that it would obviously be sensible but not essential to pilot such a scheme, and that the costs would be minimal, I find it difficult to understand why the Government cannot say that they will look at all the issues and give this particular concept a go to see what works. The measure would be, as has been the case elsewhere, whether it results in reductions in the reoffending rates.

As the Minister said, we are not talking about vast numbers of people, and it should be perfectly possible to mount such an exercise and for the Government to give an indication that they will do that. The Government are not slow to announce other initiatives when they choose to—in particular, the Ministry of Justice is not slow to introduce a wide range of proposals and act upon them.

I find myself, as I was in Committee, somewhat disappointed with the response.

Lord McNally: The noble Lord is being uncharacteristically churlish. I do not see how far I can go. I have already told him that the number of people is very small. Where would this court be established? What would it do? Which problem would it address? I have said that these issues can and should be discussed and that we will take them forward on an all-party basis and look for positive solutions. He must realise that I cannot go any further than that. I cannot say, “Right, we will set up a pilot in Newcastle”, and have them all sit round the room, not quite sure what they were there to do and what problem they

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were addressing. This needs a lot more work. It is an interesting area. We have responded as constructively as we can. The noble Lord has made progress; he should enjoy his success rather than continuing to grumble.

Lord Beecham: I am sorry that the Minister adopts that tone. I am sure he is personally warm towards this proposal. Whether that goes for other Ministers, I do not know; perhaps we will find out. I hope I have not given the impression of being churlish. We are approaching Armed Forces Day. We ought to be in a position to give a clear indication that what is ultimately a fairly simply project—the American precedent is perfectly straightforward, clear and inexpensive; the outcomes are easily measured, and it would be likely to be successful—will be undertaken. I do not ask the Minister to say definitely today that there will be a pilot project or some kind of experiment with a veterans’ court, I just find the tone less positive than perhaps our previous conversations had led me to believe it to be. Perhaps, far from being churlish, I was being a bit naive in interpreting what the noble Lord was saying.

We have a little while until Third Reading. I hope that we can make some progress, given that it is not a huge problem and that the ask in expenditure and organisation is not huge. However, I must reserve the position to bring something back at Third Reading. Of course I appreciate that it would have to be slightly different from this amendment, but I hope that is not necessary because I would like to go through the same Lobby as the noble Lord for a change on an issue of this kind, particularly given the client group that we are talking about.

I will not seek to test the opinion of the House this evening, but I do not rule that out if there is no clear indication of a positive attitude, which would not bind the Government for all time but would allow us to see whether we can learn from that American experience. I am not saying that it would necessarily be the outcome that one would hope for, but I hope that we will have an opportunity to find that out. In the mean time, I withdraw the amendment.

Amendment 19 withdrawn.

Schedule 6 : Offenders sentenced by service courts

Amendment 20

Moved by Lord McNally

20: Schedule 6, page 36, line 28, after “residence” insert “: definition of “the appropriate court””

Amendment 20 agreed.

Drones: Code of Conduct

Question for Short Debate

7.23 pm

Asked by Lord Judd

To ask Her Majesty’s Government what progress they have made in preparing a code of conduct for the civilian and military use of drones operating from the United Kingdom; and what negotiations they advocate for an international code.

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Lord Judd: My Lords, I declare an interest as a trustee of Saferworld, which has an active involvement in security issues, and as a member of the All-Party Parliamentary Group on Human Rights, whose staff and resources have been immensely helpful in preparing for this debate. I am also grateful to Human Rights Watch, Amnesty International, UNA and others, including various academics, for the material they have sent me. Our own Library in the Lords has, as usual, been a model of relevant information.

There have been a number of exchanges on these issues in both Houses recently, not least the exchange between the noble Baroness, Lady Falkner, and the noble Lord, Lord Wallace of Saltaire, on 7 February, and more recently the illuminating and well informed Adjournment debate in the other place introduced by Nia Griffith and constructively answered by Alistair Burt on behalf of the Government.

Drones—unmanned aerial vehicles—are either piloted by remote control from another location or follow a pre-programmed flight path. They have a wide range of military and non-military uses, including: surveillance and reconnaissance; disaster relief and search and rescue; anti-poaching operations; destruction of enemy installations and killing of enemy forces; and counterterrorism and counterinsurgency. More than 70 nations are involved in the use or production of drones, including the USA, the UK, Israel, South Africa, Saudi Arabia, China, India, Brazil and Turkey.

The potential of drone development for civilian purposes is considerable and will increasingly involve the CAA but it will also raise many other issues of much wider significance, not least industrial and commercial espionage and yet more intrusion on privacy and human rights. The development of autonomous robotics, which enables vehicles, once activated, to operate without further interventions by a human operator, will accentuate the challenges to be faced, as will the complex relationship between security and liberty.

In the military sphere, lethal autonomous robotics with the ability, once programmed, to select and decide to engage targets without intervention by an operator and to fight after communications have been jammed will, as Nia Griffith said in the other place, represent a “revolution” in weapons technology, with huge command and control, legal, ethical and accountability implications. Electromagnetic pulse attacks and cyberattacks accentuate all this and some experts predict that relatively soon vehicles could be as small as insects.

This is a nightmare scenario. Surely it cannot be a matter of just passively waiting for the forthcoming report by Ben Emmerson, the UN special rapporteur on counterterrorism and human rights. Government and shadow government should already be actively engaged in thinking through what is overtaking us and leading international analysis on what urgent action is imperative before the horse has bolted and we lose control—if, indeed, the horse has not already bolted. I hope that the Minister and my Front-Bench colleague will be able to reassure us about this.

The US is the most prolific user of armed UAVs, mainly in Afghanistan, Pakistan and Yemen. It is estimated that under President Bush there were more

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than 50 strikes and that more than 400 strikes were authorised during President Obama’s first term. The UK seems now to have 500 drones and the RAF is believed to have launched at least 365 strikes in Afghanistan since May 2008. There are reports that the RAF aims to have a third of its aircraft remotely controlled by 2030.

A new generation of more powerful UAVs is contemplated, with all the familiar procurement dangers of obsolescence before availability. The UK’s rules for engagement are still far from clear, particularly as they affect civilians and those not directly participating in hostilities. However, it is known that civilians have been killed. Has the UK itself conducted any targeted killings? Does the UK use the International Committee of the Red Cross’s definitions of combatants and civilians? I hope that the Minister can convince us that lines of accountability are in place for the UK’s use of drones when engaged in joint operations with the US.

The perceived advantages of armed drones are that they can attack targets accurately, quickly and stealthily while reducing the danger to pilots, civilians and troops who might otherwise have to be deployed. The perceived disadvantages are counterproductivity, including the alienation of populations where they are used, civilian deaths and injuries that play into the hands of the extremists and provoke recruitment to their cause.

It is difficult to see how the use of drones improves governance in a nation that offers a haven for terrorists, or strengthens local administration, or encourages dialogue with tribal leaders, or improves the training and reliability of the local armed forces and police services to whom it is planned to hand over increasing responsibility. In this respect, the total counterproductivity of so-called double tap strikes, where rescuers going to aid those hit by the first blast are attacked by a follow-up strike, cannot be overestimated. Indeed, such action may well constitute a war crime.

The increased use of drones by the United States has doubtless been influenced by growing public pressure to keep down troop losses and costs and a perceived need to deal covertly with the disparate core of the al-Qaeda network in Pakistan, Yemen and Somalia where there is no internationally recognised conflict, thus enabling the intelligence agencies rather than the military to operate the drones. Another factor is the international and domestic criticism of secret detention, rendition and Guantanamo. Killing has become a more attractive proposition than making captures, but where does that leave the rule of law, about which the world is so repeatedly lectured? Where does it leave the credibility of the alliance? Where does it leave the society which all this is supposed to defend? Surely either we uphold the rule of law or we do not. To circumvent it is as hypocritical and wrong as it is counterproductive. I trust that the Minister will confirm that this is the unequivocal position of the Government.

I note that the US Government are to shift drone operations from the CIA to the military, but if in effect this is to the Joint Special Operations Command, one of the very least transparent elements in the military, will there really be improved accountability? Meanwhile, the CIA will remain in control in Pakistan, with any

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shift to the military deferred to 2014. However, there is now at least some evidence of a significant decrease in drone activity in Pakistan.

Much recent debate in the US has centred on the legitimacy of target killings and signature strikes. In that debate, drones have been described as, “remote-controlled assassination devices”. A signature strike is when an operator identifies some combination of traits—the signature—that makes it acceptable to engage a target. However, it has been strongly argued within the US itself that no US President should have the sole power of life and death over civilians, whether US citizens or not, and that although the US can target al-Qaeda suspects who are claimed to be beyond the reach of the law on the basis of what they describe as legitimate self-defence, that power must be subject to judicial and congressional oversight. In response to the debate, President Obama has recently announced new policy guidance. This limits drone attacks to targets who are,

“senior operational leaders of a terrorist group who pose an imminent threat to Americans and cannot feasibly be captured”.

“Imminent” could be argued to be an improvement on what was used before—“significant”, but it is still disturbingly wide. Nevertheless, the President has said that he is to discuss with Congress at least some monitoring of the Administration’s decision-making.

I have concentrated my brief remarks today on the military dimension of drones, but the civilian dimension is acutely pressing as well. Safety, security, rational efficiency and sanity are all at stake. Domestic and international action is urgently required. We have done it on aviation law and we have led on it with the arms trade, mines, cluster bombs, chemical and biological warfare, and many aspects of nuclear activity. I argue that we need to do it again because it is my conviction that to continue drifting towards total loss of control is as unforgivable as it will be disastrous.

7.34 pm

Lord Tunnicliffe: My Lords, I thank the noble Lord, Lord Judd, for tabling this debate. I wish that more noble Lords had taken part to discuss this important issue. I also thank the Library for its extremely useful briefing note. I agree with much of what the noble Lord, Lord Judd, has said, but at the beginning I must state categorically that we on these Benches believe that unmanned aerial vehicles are a good thing, particularly in the military environment, and that by a “good thing” we mean that we believe that their value-added exceeds their risks. We agree with the noble Lord that appropriate controls over their use are essential.

In essence, the noble Lord’s question is this: do we need a code of conduct, along with regulations for the manufacture of and the operation of drones, and should these be international? I shall touch as quickly as I can on three areas, the first of which is safety. The operation of drones in UK airspace raises three areas of concern: collision; what we might call “terrain strike”, where drones fly into buildings and so on; and the possibility of technical catastrophe. Noble Lords will know that their computers are of a generation that is more adolescent than mature: that is, they are brilliant but they fail frequently. All these possibilities

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generate risk in the air environment, and any code of conduct or process of operation in UK airspace must cover all these risks. The risks are a particularly difficult regulatory challenge because drones do not have an established position in UK airspace at the moment, and therefore safety could be assured by simply denying them access. That makes it even more important that we understand the value that drones provide, the risks that they present, and that there are appropriate procedures to mitigate those risks.

What is the value of UAVs? The answer can be divided into two parts, the first of which is what I would call observation, and the other is the military delivery of lethal force. Observation can be secured by manned platforms: helicopters and fixed-wing aeroplanes. What is special about the drone in this observational area and what are the new challenges? I contend that the potential for drones to be both cheap and small introduces a new series of challenges for society as a whole. Because drones are potentially cheap and small, they have the potential to be both numerous and covert. The military use of drones for observation and reconnaissance is unexceptionable. Armies, navies and air forces throughout history have used all reasonable methods to secure information about their enemies, and I believe that drones are but part of that suite of capability. I do not believe that the military use of drones in the observation and reconnaissance role is particularly contentious.

However, in the non-military role, the potential for problems emerges, and we should address it. The non-military role divides into two: the state and the private sector. In the state sector, there is the potential for observational roles for the security services, the police and some other services. As the briefing note points out, we have some legal protections in the police and perhaps some in the security services, but by no means are they comprehensive, so one of the areas that has to be addressed is that of the whole suite of law covering operations that the state must obey in the use of this new technology.

In the private use of drones, one can certainly see the potential for them developing the inspection of hazardous environments and so on, but the area of most concern to me is that of intrusion. The fact that it is probably technologically feasible within a relatively small number of years to have an affordable drone the size of an apple that has a high-resolution camera in it means that there is a whole new potential for intrusion in the private environment. We know that our present laws are ineffective on intrusion by the press, and we are at the moment agonising over that with respect to Leveson. Surely, this new area must be included in those concerns to make sure that the whole issue of privacy is considered when developing the codes of conduct for these things.

The final and most contentious area is the use of drones for the delivery of lethal force. They are very effective in this role in uncontested airspace. They are able to deliver force with great precision and are therefore better than many other weapons that have defended us in the past: they are not indiscriminate like cluster bombs, mines or even modern artillery. They have the ability to loiter and be persistent, which

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allows for high precision, smaller munitions and the potential for less collateral damage. They also eliminate operator exposure.

The regime for their use essentially uses the manned platform regime, which involves military advisers in all aspects, including targeting and compliance with international law; there is a human decision-maker. As far as we know, society is not contemplating autonomous use. All those things are there. However, it is this very precision that causes us to think about the drone and that brings home to us that it is about damaging the enemy and killing them. Very usefully, the pack refers us back to Robert E Lee’s statement:

“It is well that war is so terrible—otherwise we would grow too fond of it”.

If war has no risk to the aggressor, how do we ensure that we do not become too fond of it? We must retain the horror of war itself. As the note points out, it is the remote warrior that is at the centre of this whole dilemma. The retention of the remote warrior as the stepping stone, the filter, and the way in which the state’s use of lethal force is used is absolutely crucial. We certainly, as I have said, see no movement towards autonomous use.

We need codes for the use of drones and the use of lethal force, which need to be bigger and probably more effective than those we have now. They should be developed through a transparent process, even in respect of military use, so that society knows how lethal force is being delivered and that appropriate, politically accountable systems ensure that this frightening delivery of lethal force by our remote warrior is properly controlled. We agree that there is a need to look at new controls and that, where possible, these should be developed internationally. We believe that they should pass the test of the public having confidence that the operation of drones in UK airspace will be safe, that their use in non-military applications will preserve our privacy and that their military use will ensure the protection of national security and the value system of our society.

7.43 pm

Earl Attlee: My Lords, I start by thanking the noble Lord, Lord Judd, for securing this evening’s debate and other noble Lords for their contribution. Your Lordships will note that the question is about civilian as well as military use of these aircraft and the House will be aware that I answer for all of Her Majesty’s Government. I share the regret of the noble Lord, Lord Tunnicliffe, about the number of speakers and am grateful for his very measured contribution to our debate.

First, we should understand that we are talking about remotely piloted aircraft systems, or RPAS. We are most certainly not talking about “drones” as exemplified by the “doodle bugs” of the World War II era. The location of the cockpit does not change the essential function of a professional, qualified pilot in terms of his or her direct responsibility for the safety and overall management of a flight. I do not foresee a situation where a human’s ultimate responsibility for the safe flight of a remotely piloted aircraft will be replaced by fully autonomous technologies.

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I will follow the split of the noble Lord, Lord Tunnicliffe, and cover civilian RPAS operations first. These are closely regulated by the Civil Aviation Authority and are treated in the same manner as that of an equivalent manned aircraft. This applies to all aspects of unmanned aviation, from the initial design and construction, or airworthiness, through to the safety requirements of how it is flown and operated. This viewpoint is shared internationally. We certainly have no intention of denying access to UK airspace—we just want to keep it safe.

Small unmanned aircraft are those under 20 kilograms weight, flown at short range and always within the sight of the person flying them. These are overseen to a lesser, but proportionate, extent by the CAA but, in certain circumstances, such as for commercial use, a permission is needed. They are also subject to the Data Protection Act and the Regulation of Investigatory Powers Act. The noble Lord, Lord Tunnicliffe, talked about intrusion. He will be aware that the activities of Google also cause similar concerns and that this concern is not unique to RPAS.

The House should not overlook the technological importance of the growth of the remotely piloted aircraft sector. For example, systems which can be used to detect other aircraft could, in time, greatly assist all pilots, in the same way that aircraft transponders have contributed to safety across the sector. I would point out that the UK’s ASTRAEA consortium is at the forefront of international efforts in this field. The noble Lord, Lord Judd, told the House about a wide range of uses including anti-poaching operations. Noble Lords will have read the article in this week’s Sunday Times about the use of RPAS to assess the health of a vineyard in France—a very commendable use, I would suggest. Surely, this is the start of yet another technical revolution facilitated by the ubiquitous modern electronics. The noble Lord, Lord Judd, is right of course when he says that the potential for their development is considerable.

The overall objective of the Government and the European Commission is to enable the full and safe integration of remotely piloted aircraft into the total aviation system so that they share the same airspace as their manned counterparts. With UK and EU input, the International Civil Aviation Organization is currently developing RPA guidance material, due for publication in autumn 2014, with standards expected about two years later. Within Europe, the Commission’s RPAS roadmap, published on Thursday 20 June 2013, is aimed at an incremental integration of RPAS into European airspace from 2016. To achieve this, there are a number of significant technical challenges to be overcome, primarily concerned with ensuring the RPAS is airworthy and has the capability to avoid collisions. However, until the technological and regulatory hurdles can be safely overcome, operations of larger remotely piloted aircraft will continue to be restricted to segregated airspace. For these reasons, therefore, my view is that there is already a suitable framework in place to regulate the operation of civilian remotely piloted aircraft and that no additional codes of conduct are required.

I now turn to the military element, which I suspect is of more concern to the House. Although the MoD operates a number of unmanned aircraft systems, Reaper

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is the UK’s only armed remotely piloted aircraft system and its only operational use is in support of UK and coalition ground forces in Afghanistan. Although predominantly used for intelligence, surveillance and reconnaissance tasks, the aircraft is also armed with precision-guided weapons, which offer an attack capability if needed by ground commanders. The system is operated by highly trained, skilled and qualified RAF pilots in accordance with the principles of international humanitarian law and the UK’s rules of engagement, which are identical to those used by crews of manned combat aircraft. That applies even for joint operations with US forces.

The UK’s selection and prosecution of all targets is based on rigorous scrutiny. Targets are always positively identified as legitimate military objectives and every effort is made to ensure that harm to civilians or damage to civilian property is minimised. The Government have a longstanding policy of not divulging the detail of our rules of engagement; that would give our adversaries useful information about how and when we might choose to use lethal force. I also gently remind the House that the pilots operate under military discipline. Similarly, the RAF has well established command, control and supervisory frameworks that I have seen on exercise. I do not believe that anything extra needs to be provided for.

The noble Lord, Lord Judd, suggested that the UK military has 500 RPAS. However, there are currently only five armed RPAS. Of course, rather smaller RPAS are used for tactical surveillance. The use of remotely piloted aircraft systems is no different from other airborne or indeed ground-based attack systems. The only difference from a traditional aircraft is that their cockpits are on the ground. The systems can only launch their weapons when specifically commanded to do so by the pilot. They do not have the capability to launch any weapons autonomously. In addition, there are no future plans to replace military pilots with fully autonomous systems. I know that that is a matter of great concern to the noble Lord, Lord Judd, and the whole House. The MoD has no intention of developing any weapons systems to be used without human involvement. Although the Royal Navy has defensive systems such as Phalanx that can be used in an automatic mode, to protect personnel and ships from enemy threats like missiles, a human operator oversees the entire engagement. Furthermore, all our remotely piloted aircraft systems used in Afghanistan to protect troops on the ground are controlled by highly trained military pilots. There are no plans to replace skilled military personnel with fully autonomous systems.

Lord Judd: I am extremely grateful to the Minister for this reply. Could he clarify what is meant by “no intention” to deploy these vehicles other than with human involvement? What does human involvement amount to? How much automatic action in terms of analysis, identifying a target and deciding to hit it will be left to the device in future vehicles once they are launched?

Earl Attlee: My Lords, the answer is currently none. It requires human involvement to launch the missile at

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the target. RPAS cannot currently engage a target without being commanded to do so by the pilot on the ground.

The noble Lord, Lord Judd, implied that communication with and control of an RPAS could be lost in the event of an electromagnetic pulse. If that was the case, the RPAS would probably lose all its capability, just like any other aircraft.

The noble Lord touched on the perceived disadvantages of the military use of RPAS. As of 20 June, the UK Reaper RPAS has employed 394 precision-guided weapons. There has been only one known incident that resulted in the deaths of civilians. On 25 March 2011, an attack on two pick-up trucks resulted in the destruction of a significant quantity of explosives and the deaths of two insurgents but, sadly, four Afghanistan civilians were also killed. In line with current ISAF procedures, an ISAF investigation was conducted to establish if any lessons could be learned or if any errors in operational procedures could be identified. In that case, the report concluded that the actions of the Reaper crew had been in accordance with extant procedures and rules of engagement.

The noble Lord, Lord Judd, asked if the UK had conducted any targeted killings and whether the UK uses the ICRC definitions of combatants and civilians. Her Majesty’s Armed Forces will engage the enemy in accordance with international humanitarian law and the UK rules of engagement. The necessity and legality of engaging the target does not depend on the means of doing so. The noble Lord stated that we either uphold the rule of law or we do not. He is right. I can confirm that Her Majesty’s Government uphold the rule of law. How the US Government conduct themselves is not a matter for me to comment on and I have already touched on joint US/UK operations.

The noble Lord, Lord Tunnicliffe, talked about the remote warrior. Our experience of operating the Reaper remotely piloted aircraft system in Afghanistan suggests that Reaper aircrew are just as if not more connected to the situation on the ground when compared to

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operators of other aircraft types. That is because they fly missions over Afghanistan for years at a time and not in short-duration rotations. Remotely piloted aircraft can loiter over areas of interest for a considerable time, providing that much-valued intelligence picture. I remind the House that surveillance is their primary role. Should an attack be requested, their persistence enables them to assess a target in detail and select an optimum time for attack that minimises the risk of civilian casualties. Indeed, because of this increased awareness of the ground situation, enabled by the connectivity that a ground-based cockpit offers, there have been many occasions when crews have elected not to fire a weapon.

I will say a few words about the ASTRAEA project. ASTRAEA—Autonomous Systems Technology Related Airborne Evaluation and Assessment—is a UK industry-led consortium focusing on the development of technologies, systems and procedures with a specific emphasis on unmanned aircraft systems. The consortium is led by seven UK companies—AOS, BAE Systems, Cassidian, Cobham, Qinetiq, Rolls-Royce and Thales—plus a further 70 SMEs and universities. The aim of the programme is to enable the routine use of UAS in all classes of airspace without the need for restrictive or specialised conditions of operation. The £62 million programme was split into two phases, each lasting three years. Phase 2 ended on 31 March 2013. Some 50% of the funding came from industry partners, with the remainder from government—the TSB and the regions. Future activity under the ASTRAEA brand is the subject of ongoing discussion within the consortium.

I welcome this debate, which has explored the application and use of remotely piloted aircraft. The noble Lord, Lord Judd, is right to question the implications of any new and growing technology such as this. To reiterate: RPAS are aircraft under human control. The very clear regulations and guidance that apply to aircraft also apply to RPAS. I am confident that no further code of conduct is required.

House adjourned at 7.57 pm.