NATURE OF COMMUNITY SERVICE (Hansard, 13 June 1978)

§ Mr. Teddy Taylor (Glasgow, Cathcart)
I beg to move, That the clause be read a Second time.
As the House will be aware, this Bill introduces community service orders in Scotland. As the Minister explained in Committee and on Second Reading, we have had a number of experiments in Scotland so far, and the Bill provides formally the powers to introduce the scheme throughout Scotland.
In Committee the Opposition moved a new Clause which suggested that in determining the nature of community service the courts and local authorities should have regard to the desirability of relating the work to the nature of the offence. The Minister certainly accepted our reason for putting the proposal forward. We thought that a useful use of community service might be, particularly in cases of vandalism and malicious mischief, that the penalty should seek to ensure that the person who had committed the crime should carry out some public service or work associated with it.
One obvious example would be that if a vandal had been caught putting graffiti on a wall, it might be a useful discipline for him to be invited to clean up the mess. That was the kind of thing that we had in mind and why we proposed the new clause in Committee. However, the Minister put forward a convincing argument and a number of reasons for not accepting it. As reported in column 87 of the Committee proceedings he said that it was not possible or practicable for the court to have the detailed knowledge of the kind of work that an offender should be doing against the background of his offence, and he said that it was not possible or practicable for the courts to have 847 detailed knowledge of the availability of work that would be required.
He pointed out that under the Bill it was for the courts to determine the number of hours that a community service order would run for an offender, and that it was for the social work departments, which would supervise the order, to decide the content of the work which the offender would perform.
In spite of the Minister's explanation, the Opposition pressed the matter to a Division. After one of the intermittent visits, such as we are again having today, of the hon. Member for Glasgow, Garscadden (Mr. Dewar), we stood by our belief in the value of the clause.
The Minister rejected our case, but he indicated that in considering giving an offender a community service order the court would have the ability to recommend that an offender should carry out certain work. That is what we are trying to propose today as a compromise. We think that this is something which could be done, as the Minister has indicated, and it might be useful and helpful to write that into the law. That is why we are putting forward the new clause which it appears has the unanimous support of the Liberal Party. Under the clause the courts, in determining the nature of the community service, may request the local authorities to relate the work to the nature of the offence.
There is no doubt that the whole country is concerned not only about the increase in crime, but about the extent to which our prisons are becoming full. The Minister supported his Bill by saying that it might be an alternative to imprisonment or a fine. There was a telling example of the increased recognition that now exists of the problems of vandalism only last night when the Minister of State, Department of Health and Social Security, winding up a debate on preventive medicine, asked what might be done about children buying cigarettes from automatic vending machines. He pointed out that the problem was disappearing because the machines were being destroyed by vandals.
We have put forward a reasonable compromise which is consistent with the Under-Secretary's words in reply to our new clause in Committee. We are not 848 saying, as we said in Committee, that the courts should have the absolute power to determine the nature of the work of community service. We say only that in determining the nature of community service the courts may request the local authorities to relate the work to the nature of the offence.
In Committee the Under-Secretary pointed out that it might be preferable for an offender to do some work which was related to his special skills or abilities. What we have in mind is a form of service related not to particular skills or abilities but to something which does not need a great deal of skill. It would be most useful if someone who destroyed a garden had to do some gardening. Equally, it would be useful if someone who defaced a wall had to clean it up. It would be quite wrong if the courts were to have no indication in the Act that they could influence the nature of the work done.
I hope that the Minister will accept our clause as being fair and reasonable and consistent with his speech in Committee. I hope that he will accept that if we do not put in the clause there will be nothing in the Bill to give the courts the right to determine or influence the nature of the work to be done.

§ Mr. George Thompson (Galloway)
I intervene briefly to support the clause, as I supported the earlier clause in Committee. I took the point that the Minister made then, and I congratulate the hon. Member for Glasgow, Cathcart (Mr. Taylor) on having phrased the new clause in a way that meets the points raised by the Minister. I hope that the Minister will accept it.
The hon. Member for Cathcart referred to special skills. It might be possible to make someone who has wrecked a garden do some gardening. But that person might be completely hopeless at gardening and might replant the flowers or potatoes in such a way that they simply would not grow. The clause will mean that the local authorities, which will have the responsibility of devising the schemes, will be able where it is appropriate to make the punishment fit the crime and, where that would not be appropriate, because of the offender's lack of skill, they could choose some other form of work. I therefore commend the clause to the House.

§ Mr. Donald Dewar (Glasgow, Garscadden)
Like the hon. Member for Galloway (Mr. Thompson), I rise only briefly. This matter was aired in Committee, and although the hon. Member for Glasgow, Cathcart (Mr. Taylor) has ingeniously altered the wording of the clause, his arguments remain basically the same. I think that he now has the worst of the argument.
To suggest that in determining community service the courts may request the local authorities to relate the work to the offence is to invite friction. There is nothing to prevent the sheriff from expressing his informal opinion, and I hope that an opinion expressed by a sheriff would also be persuasive on a social work department.
However, the clause would not give the courts the right to determine, instruct or lay down the sort of work to be done. It merely gives a spurious kind of statutory authority to a sheriff's suggestion. I believe that either a sheriff should have the power—a proposal that was rejected in Committee—or the matter should be left on a completely informal basis. The clause is something of a halfway house which may be ingenious but is certainly not desirable.
I remain of the view—and I hope that my Front Bench will also remain of the view—that however attractive it is to argue that the punishment should be made to fit the crime, given the difficulties over the availability of jobs under a community service order and the difficulties of supervision—whether by statutory staff or by people in the voluntary sector who may have an offender seconded to them—that the placing of the person who has been put under a community service order should and must remain the responsibility of the social work department.
In a way, if we were to follow the reasoning and the logic of the hon. Member for Cathcart what we would be doing would be confusing the role of the social worker and the sheriff. I believe that that would be a mistake.
It is clearly a matter for the sheriff to look at the offender, to look at the circumstances of the offence, and to look, perhaps, at the public interest, and to decide in terms of the Bill, when it is an Act, whether the person could appropriately be made the subject of a com- 850 munity service order. It seems to me that we must leave to the social worker the judgment how that should be carried out and which particular tasks, given the range that is available, are appropriate in the individual case.
I am not necessarily quarrelling with the theory that if someone destroys a garden—as has been suggested—work in public parks, therefore, or in tidying up the gardens of old-age pensioners, and so on, might well be appropriate. But I do not think that the nature of the offence is or ever can be the only criterion that should govern where someone is placed in terms of a community service order.
It may be that the person has special skills of another kind that the sheriff, when making the order or when making the kind of recommendation for which the Conservatives wish in the new clause, will not have the full information about the skills and aptitudes or, indeed, the full availability of the work that is available to the social worker when he decides on the final placement.
I would not wish to fetter the discretion of the sheriff in making suggestions, but it seems to me that it is inappropriate that the power to suggest should be enshrined in the Bill, as the hon. Member for Cathcart is suggesting. I should prefer to leave it as a social work judgment. After all, if we were to have this power, it seems that we would have to have a situation in which the social worker, when providing the original report, would give an exhaustive list of all the places that are available at that stage and the whole range of community service tasks. The sheriff would then have to give attention to what was available as well as what seemed peculiarly appropriate in terms of the offence that he was considering.
It seems to me that the new clause is inappropriate. It is inviting the sheriff to do something which he is not qualified to do and which, in the majority of cases, it would not be appropriate for him to do. I should prefer to leave the Bill as it is and leave it to the social worker, once the decision on suitability for a community service order has been made by the court, with his particular and specific expertise to decide on the best method of supervision and the best way in which a community service order should be implemented.

§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
I listened with care to what was said by the hon. Member for Glasgow, Garscadden (Mr. Dewar). There is some validity in it at first hand. However, I rise to support the new clause, and for this reason. Given a social worker upon whom there is the necessity to find something for someone upon whom a community service order has been imposed, perhaps he will just look at the matter and say "What shall we do with you, George? I know. You can go and repaint the footbridge at such and such a place." I think that there will be a grave likelihood, in view of the pressures on such people, that they will merely find a job for them to do in order to exercise the order.
I am impressed by the new clause because it is important that there should be a relationship between the punishment and the offence. I say that because I remember that shortly after the war there was a competition amongst schoolchildren as to what they would have done to Hitler if they had been able to punish him alive. The child who won said this: "Turn his heart kind and then introduce him to his victims."
I think that it is easy, perhaps, for a child to wreck a fence or to throw a bottle through a window, but to have to meet the family through whose window the bottle was thrown or to have to dig the garden of a poor old women after one has wrecked it could be a most beneficial and reasonable way of introducing the awfulness of a crime. Crime is so easy to commit at a long distance and so difficult to commit face to face.
If the new clause is accepted, the relationship in which we may achieve some resolution of the criminal abandon in the realisation of a human effect might well be realised. That is why I support the new clause.

§ The Under-Secretary of State for Scotland (Mr. Harry Ewing)
As the hon. Member for Glasgow, Cathcart (Mr. Taylor) pointed out, we are returning to a discussion that we had at length in Committee on another new clause moved by the Opposition. I indicated then that, for various reasons, I did not feel able to accept it. I do not feel able to accept this new clause either.
852 Perhaps I could begin with the remarks of the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn). With great respect, there seems to be a fundamental misunderstanding of the community service system as it has been set up and as it has operated in the four experimental areas in Scotland that we have had over the past few months. There seems also to be a belief that the courts have no say or influence in the kind of work that is made available to offenders. That is a total misconception of the position, because in the four experimental areas, and in all areas in which in future the social work department advise my right hon. Friend the Secretary of State that a community service order scheme is available and my right hon. Friend would in turn inform the courts, local advisory committees have been set up.
A local advisory committee consists of representatives of the police, the social work department, the trade union movement—which has a role to play in this matter in identifying the kind of jobs that could be made available to the offenders for community service work—and representatives of the sheriffs. Therefore, the courts themselves have some say and influence in the kind of work that is made available to offenders who are made the subject of community service orders.
The new clause would merely confuse the position of the social work department vis-à-vis the courts.
The hon. Member for Cathcart has framed the new clause to state: In determining the nature of community service the courts may request". That presupposes that it is the courts that determine the nature of the community service. That is not so. It is the social work departments that determine the nature of the community service when they are putting these schemes together. Therefore, the new clause would have the effect of confusing the position of the court vis-à-vis the social work department which would administer the community service order once it has been attached to an offender.
Even apart from that, the new clause is unnecessary because at present courts have powers to make recommendations when an offender comes before them. We should bear in mind that we are still talking about a position in which the offender 853 has in the first place to accept a community service order. We are not talking about a position in which a community service order could be applied against the wishes of the offender.
It may well be—it is only speculation—that the giving of this kind of power to the court would have the effect of stopping many offenders who would be disposed of by the CSO disposal method from accepting a CSO, albeit that the alternative to that would possibly be imprisonment. One should think of the effect on the offender of courts having this kind of power.

§ Mr. Teddy Taylor
Does the Minister agree that the present position is that a sheriff would be making such an order almost blind, not having any knowledge of the kind of work which would be done? Would it not be helpful to put in the Bill some indication of the court having some influence on the matter, otherwise many sheriffs will be in the difficulty of agreeing to make a CSO which in the course of events might in their view prove to be totally unsuitable.

§ Mr. Ewing
The hon. Member for Cathcart misses the point that I made at the beginning that in deciding the kind of jobs that would become available in a social work area the sheriff has a say through the local advisory committee, which is made up of the sheriff, the police, the social work department and the local trade union movement. What the hon. Member is saying in proposing the new clause is that the sheriff should have an extension of this power to identify a job that had not been identified by the local advisory committee as being part of the community service by offenders scheme that had been put together by the regional council's social work department. That would be dangerous. It is not the kind of power that the courts would welcome.
We have had many representations on the Bill about all sorts of matters, major and minor. But this is one of the issues on which we have had no representation. The courts and the social work departments are happy with the way in which the experiment has worked. No concern has been expressed to us on the matter.
As my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) has 854 said, we would be in danger of loading the statute book with unnecessary requirements when at present the court has the ability to say to a social work department that the sheriff thinks that the offender should be put to work on such-and-such a job. The sheriff will know what jobs are available, because he is part and parcel of the local advisory committee set-up.

§ Mr. Fairbairn
I was not on the Committee, though I have read some of the proceedings of the Committee. Does the advisory committee and the trade union members on it say what work they will tolerate offenders doing, and thereafter does the sheriff merely commit them to it and say that the work will be gardening rather than painting lamp posts, if local authority employers will allow such work to be done by offenders? Do I understand that the sheriff has no power to say "You will not just dig gardens, but you will dig Mrs. Smith's garden"?

§ Mr. Ewing
The hon. and learned Member, of all people, appreciates that we live in a democracy, and that—I hope it always remains the same—we can do basically only what we can get agreement to do.

§ Mr. Fairbairn
By the unions.

§ Mr. Ewing
Not necessarily by the unions. Sometimes more often by the legal profession. Often many of the things that we would like to do have been frustrated not by the trade union movement but by professional organisations such as the legal profession. I do not complain about that. We are a consensus nation and can do only what we are allowed to do.
We have had these experimental schemes running for some months and have experienced no difficulty with them. We are therefore anxious to extend these schemes—we are on the point of doing so—and to get one more region in Scotland. We are anxious, as the Bill provides, to give this scheme legal back-up. The powers contained in the new clause are totally unnecessary because the courts already have the power to suggest to a social work department what work an offender should do. Such a recommendation will be made with the knowledge of what jobs are available.
The basis of the new clause is that we should make the punishment fit the crime.
855 I am not opposed to that. However, we must bear in mind also that there are some offenders who for various reasons would not be suitable to do some jobs that people are suggesting might be made available to those treated by the CSO system.
I have been no more convinced in this debate than I was in Committee. No new points in support of the proposition put to us in Committee have been made today in support of the amended proposition. I accept that it is an amended proposition. It is not good legislative government to clutter up the statute book with this kind of unnecessary requirement. I hope that the House will not allow the new clause to be read a Second time.

§ Mr. Alexander Fletcher (Edinburgh, North)
We were encouraged to see among the names added to the new clause three distinguished Members of the Liberal Party. We were disappointed that in this short debate none of them has seen fit to come into the Chamber to support the new clause.
We have tried to give the Minister the opportunity for second thoughts on the matter. We discussed this at some length in Committee and we felt then that the Minister was too rash in rejecting our proposal. The Minister today still takes a narrow view of the point that we are anxious to make. In the Bill the local authorities will have the sole responsibility of deciding the sort of work that offenders should do. Yet the courts, where the case will be heard, will have exercised their option under Clause 1 of the Bill of making a CSO instead of imprisonment, a fine or taking some other action.
This is important as the court will have heard all of the evidence and judged the character of the offender before deciding that a CSO is appropriate. It is difficult to follow the argument put forward in Committee by the Minister.

§ Mr. Harry Ewing
Does the hon. Member not accept that the courts have an influence, through membership of the local advisory committee, on the kind of jobs that are made available for community service by offenders? If he accepts that, the new clause is not necessary.

§ Mr. Fletcher
There is no reference in the Bill to courts having an influence through advisory committees, which are presumably set up in an administrative exercise and could just as easily be abandoned. Secondly, as was said by my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn), the advisory committees are essentially of a general nature.
We are suggesting that the court, having listened to the evidence and judged the character of the offender and his suitability for a CSO, could make a specific recommendation as to the nature of the work. I put it to the Minister that there is a difference between the court making a specific recommendation of which work should be done in an individual case and a general recommendation made through some generalised committee structure which can be abandoned at any time because it is not part of the Bill.

§ Mr. Harry Ewing
The House is in danger of getting itself into some difficulty. Will the hon. Member explain what would happen under the new clause if a sheriff in a sheriff's court recommended that an offender be given some specific kind of work and the social work department said that such work was not available for the offender to do or that it was available but not suitable for the offender to do? Would that not lead to conflict rather than co-operation between the social work departments and the courts? That is the very thing that we have sought to avoid right through the experimental scheme, and we have avoided it.

§ Mr. Fletcher
The way that the Bill is constructed is more likely to lead to conflict than are the contents of the new clause. The Minister is floating a typical red herring because it is not unusual for courts, if in doubt about the suitability of a sentence or any other consideration regarding the offender, to take time for consultation before reaching a decision. The Minister must know that, and his intervention is not relevant.

§ Mr. Dewar
Does the hon. Gentleman not accept that it is clear in the new clause that even if a sheriff makes a specific request for a particular offender and the social work department decides to 857 ignore it, that might leave a frustrated and annoyed sheriff, but there would be nothing he could do about it? Equally, if after 100 hours of a 200-hour order had been completed, that type of work ran out, the social work department would have no option but to depart from the sheriff's suggestion.

§ Mr. Fletcher
That is the position without the new clause. We are trying to give the sheriff some standing in this matter. I take the point that if the social work department ignored the sheriff's recommendation, there would be nothing under the new clause that he could do about it. However, I am sure that we all hope that relationships between the courts and the social work departments would be better than that. It is in order to try to ensure that these relationships get off to a good start that we are trying to give some right to the court in deciding the nature of the work to be done rather than having that right as the sole domain of the social work department.

§ Mr. Dewar
Does the hon. Gentleman not agree that there are great disadvantages in inserting suggestion clauses in statutes? While statutes can be enforced, the new clause proposes inserting a right to suggest but not the right to enforce. That is extremely clumsy and unsatisfactory.
Surely it would be better to follow the logic of what the hon. Gentleman has said. We hope that there will be good relationships between social work departments and sheriffs and that suggestions from the bench, as they normally are, will be given serious consideration by the social work department. We would do better to leave it on what might be called a scout's honour basis because that would make for happier relationships and a much tidier Bill.

§ Mr. Fletcher
The defence of the Minister against the new clause is that advisory committees exist. However, the hon. Member for Glasgow, Garscadden (Mr. Dewar) will agree that there is no reference to these committees in the Bill.

§ Mr. Dewar
That is another point.

§ Mr. Fletcher
No. It is relevant to the debate. Secondly, we admit to having softened the wording of the new clause and that it is not perfect. We softened the 858 wording because when it was in a harder form in Committee and provided that the courts "shall have regard to", we found that it was not acceptable to the Committee. Indeed, the hon. Member for Garscadden was one of those who voted against it.

§ Mr. Fairbairn
Does my hon. Friend agree that judges in the High Court may recommend a minimum period that a man convicted of murder should serve and, as far as I know, it has not been suggested by the Government that this causes friction between St. Andrew's House and the Senate of the College of Justice on the basis that a Minister might recommend that a man should be released, contrary to a judge's recommendation.
It is one thing to say that a court should be able to recommend that a man should pick raspberries in Forfar for the whole summer, without any right to enforce that recommendation under an Act, and it is another to have a statutory right to request, which is more likely to improve the respect that the Bench and social work department have for one another than to cause aggravation.

§ Mr. Fletcher
I agree entirely with what my hon. and learned Friend has said. His intervention is fundamental to the debate and the Minister should pay some attention to and make some reference to those points.
The hon. Member for Garscadden is taking too strict a legal view of the matter. He seems to be following very much the line of the Minister. I am surprised, because the hon. Gentleman has had some time in which to disentangle himself from these doctrines. I am also surprised that he should come back to the House without having broadened his mind on some of these matters.

§ Mr. Teddy Taylor
He has got worse.

§ Mr. Fletcher
Having considered the case in detail, heard the evidence for and against the offender and considered the damage done by the offender, as well as the plight of the victims, the courts have a unique role and should have the right to relate the community service order to the nature of the offence. The court is in a different position from the social work department or any local authority official. The court considers the case on its merits and listens to all the evidence, 859 including the character of the offender. That is why we feel that the court should be in a position to make a recommendation.

§ Mr. Dewar
The hon. Member showed great loyalty to the views of his hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) who seemed to believe that the sheriff should suggest that an offender should put right the damage in the garden that he had vandalised or the house into which he had broken. In those circumstances, would it not be important to have a new clause to provide that the unfortunate person who is to be the recipient of these services should be consulted before the sheriff goes ahead with his suggestion?

§ Mr. Fletcher
The new clause says: In determining the nature of community service the courts may request the local authorities to relate the work to the nature of the offence. That is the point we are making. There is no substitute for the courts in the discharge of this function. Without the new clause, there would be nothing in the Bill to give any rights to the courts.

§ Mr. Fairbairn
I am sorry to intervene again, but it is important to point out that the social worker will hear none of the evidence, will not have been present in court, will probably know nothing about the offence and will probably know only of the conviction. How can such a person be responsible for deciding the sentence?

§ Mr. Fletcher
My hon. and learned Friend underlines the points that we are making. So far, they have not been answered by the Minister.
In Committee, the Minister said: It may well be that on the positive side of this argument an offender has a particular talent not related to the offence he has committed. It would be better if we utilised that talent for the benefit of the community".—[Official Report, First Scottish Standing Committee; 25th May 1978, c. 88.] Having heard all the evidence and considered the offender's character, the court might think that the purposes of the Bill would not be served if he were to indulge in his favourite pastime—which is what the Minister suggested.

§ Mr. Harry Ewing
No. I suggested that he should use his particular talent.

§ Mr. Fletcher
But that is likely to be the same as indulging in his favourite pastime. If there is any possibility of that suggestion being adopted by local authorities, the new clause is doubly relevant. There should be some reference to the nature of the offence and the court should be able to make a contribution here.
I said in Committee that it was in the interests of the social work departments that the courts should have the right to relate CSOs to the nature of the offence. If the full responsibility for prescribing the work lies with social workers they will bear the brunt of any criticism. The responsibility should be shared by the courts and the local authorities.
We want the Bill to have the broadest possible acceptance by the public, the police, the courts and the local authorities. This is not a party matter. I hope that the Minister will respond favourably so that the Bill may be more satisfactory to all concerned.