FURTHER PROVISIONS ABOUT COMMUNITY SERVICE ORDERS (Hansard, 21 July 1978)

§ The Under-Secretary of State for Scotland (Mr. Harry Ewing)
I beg to move, That this House doth disagree with the Lords in the said amendment.
This amendment, is undesirable both in principle and in its practical effect. It is undesirable in principle because it involves the court in the detail of the implementation of a sentence. This is not the court's traditional role which is to decide on the weight of a sentence and to leave the implementation to others. However, the crucial reason for rejecting this amendment is that it would have a very undesirable effect on the implementation and operation of the community service order scheme.
First, courts would have to know, before making an order with a requirement that the work be carried out at certain times or on certain days, whether work was available on those particular days or at those times of day. This would be an additional burden on our already hard-worked courts. Of course the court could have certain information about jobs at the time of the making of the order, but what it could not possibly know in advance is whether work would continue to be available at the specified times throughout the currency of the order, which could be up to 12 months.
It would be necessary for the offender to be brought back before the court if work ceased to be available at the specified time on the specified day and the order had to be changed in consequence. This might happen for any number of reasons. Bringing the offender back before the courts every single time this happened would place an undesirable extra burden on the courts. It would also mean a great deal of extra and unnecessary work for the social worker supervising the order and it could have a most demoralising effect on the offender, who would be before the court again through no fault of his own.
The Bill as originally drafted left the responsibility for arranging when the work is to be done with the local authority officer, that is to say, the social worker supervising the implementation of the order. However, there was nothing under the Bill as introduced to prevent the court from expressing a view on what days or times of day the work should if at all possible be carried out. I am sure, 1060 especially given the relationship of mutual trust and co-operation which has been built up in the pilot schemes between the courts and community service organisers, that the social worker would do his best to implement the court's wishes.
There is ample scope for the courts and the social workers to come together formally, under the local advisory committees which have been established, or informally to discuss the implementation of community service orders generally and of individual orders. I believe that this approach offers a far better prospect of harmonious co-operation between courts and social work departments than the mere rigid framework proposed by the amendment.
An added complication is that clause 3(1)(b) requires the offender to perform for the number of hours specified in the Order such work at such times as the local authority officer may instruct". The amendment, which gives the court power, in appropriate cases, to state when the work should be done is therefore impossible to reconcile with clause 3(1)(b).
The Bill originally provided a sensible and flexible arrangement. The amendment imports an undesirable and potentially cumbersome provision into the Bill.

§ Mr. Alexander Fletcher (Edinburgh, North)
Like the Minister, I have no desire to go over ground which has been thoroughly covered before, but I am disappointed that he continues to take what I consider to be a narrow administrative view of this amendment, because it and Lords amendment no. 2 highlight two of our main reasons for supporting the Bill and two of our main objectives.
The first is to deal more effectively with certain types of offence, such as offences of hooliganism and vandalism, and to break new ground in dealing with those offenders, I hope—I make no apology for saying this—at less cost to the taxpayer than the cost of imprisonment.
The second objective, which follows on from that, is that we wish to take into account the fact that in Scotland the prison population, as a proportion of the total population, is among the highest in Europe. If these objectives are to he achieved, this small Bill must make an early impact on Scotland and quickly earn the respect of the community as a whole. That is what the amendment seeks 1061 to achieve and it is why we have consistently argued the point in favour at all stages of the Bill. It is aimed, after all, at having some effect on these sorts of offence which are repeatedly committed and which repeatedly occur on particular days, at particular events; and football matches have been rightly mentioned. The amendment would perhaps help offenders to kick the habit because of their enforced absence from whatever activity turns them on.
We should remember also that we are dealing perhaps more with the social misfit in the Bill than with the hardened criminal. The amendment takes account of the problems of the social misfit's bad habits, and perhaps even of the bad company in which he may well find himself. We believe that it is in the best interests of the offender himself that we should take account of these factors. It is a very simple but, we think, very important point and one which is worthy of a broader view from the Minister.

§ Mr. Harry Ewing
I beg to move, That this House doth disagree with the Lords in the said amendment.
The Government urge the rejection of the amendment because it is undesirable in principle and unnecessary. It is also badly drafted and does not make a great deal of sense.
The amendment is undesirable because it seeks—and I stress the word "seeks" for reasons which I shall give in a minute—to take the courts into areas in which it is not their traditional role to operate. It could involve them in a great deal of extra work in finding out in detail what work is to be carried out by an individual offender. Courts have enough to do as it is without this additional burden.
The amendment is unnecessary because courts can already make a recommendation or express a view either formally or in informal discussion with the social worker on what sort of work would be appropriate for a particular case. I have 1062 every confidence that the community service organisers will do all that they can to make work arrangements which accord with any such view expressed by the courts. They have already shown in the pilot schemes how alive they are to the need to win and maintain the trust of the courts. In addition, the courts will be able to exercise a general oversight of the sort of work available in their area as they will be represented on each area's community service advisory committee, along with trade unions, police and others, including many of the work-providing agencies. This amendment, phrased in a general way, adds nothing to these powers.
Finally, the amendment is badly drafted. In fact, it achieves nothing. All it says is that courts must "have regard" to the desirability of relating the work to the nature of the offence". It gives the court no powers to do anything. It certainly does not empower them to set down in the order the nature of the work to be performed under it. There is a danger that this imprecision could cause confusion, and I believe that we in Parliament have a duty to ensure that the legislation we pass is not open to this charge.
It is worth putting on the record that only this morning, before I came into the House, I received a letter from the Strathclyde regional social work department, signed by the community work organisers for Inverclyde district and for Dumbarton and Clydebank district, who are both officers with extensive experience of operating the experimental schemes we have been running in Scotland. They strongly urge the House not to accept either Lords amendment no. 1 or Lords amendment no. 2.

§ Mr. Alexander Fletcher
The Minister made some play of the drafting of the amendment. We seek to achieve two ends. We wish, first, to make statutory reference to the relationship between the courts and the local authority social work departments and to do this properly in the Bill, while giving the maximum amount of flexibility about what the arrangements should be. At present there is no reference to what procedures might operate between the courts and the local authority.
1063 We think it is in the best interests, not least of the local authorities and the social work departments, that this provision should be made in the Bill itself. We seek to do this because we want to encourage the courts and the local authorities to co-operate to the fullest possible extent to help make a success of community service orders. We also want to remove the suspicion that social work departments might provide a soft option for these types of offender.
It was not at all helpful of the Minister to produce a letter from the social work organisers in Strathclyde, because that underlines the need for the social work departments to be very careful to ensure that they do not carry the full weight of responsibility for anything that goes wrong with the Bill and, in particular, with the execution of community service orders in Scotland. Therefore, I should have thought that it would be greatly in their interests to try to share this responsibility with the courts.
That is the purpose of the amendment. We do not want any legislation that will provide more discouragement for the police in the execution of their work. There is evidence in Scotland that this is happening and has happened for some time. In the interests of the citizens, of the police in their work, and of every one involved in trying to make a success of the Bill, there should be some statutory relationship between the courts and the local authorities.