HL Deb 11 July 1978 vol 394 cc1458-89

3.50 p.m.

Lord KIRKHILL

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Kirkhill.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Baroness WOOTTON of ABINGER in the Chair.]

Clause 1 agreed to.

Clause 2 [Further provisions about community service orders]:

The Earl of MANSFIELD moved Amendment No. 1: Page 2, line 45, at end insert ("and, where appropriate the particular days or times of day when the work is to be performed").

The noble Earl said: The Second Reading debate on this Bill was somewhat short. That was in part due, no doubt, to the fact that it is a short Bill and the principles of the Bill were agreed on all sides of your Lordships' House. A second consideration was that the hour was late. Whether in fact the House wanted to get on to other business, or I wanted to catch a night train to Scotland, I do not now recollect. Be that as it may, the debate was short, although interesting.

I regret that the noble Viscount, Lord Thurso, is not in his place—and in fact the Liberals seem to be entirely absent. I say that because what I want to discuss with your Lordships in this short Committee stage is really the philosophy behind part of this Bill and what it is likely to do for criminal justice in Scotland, and much more especially how it can be used to help offenders who otherwise would go to prison.

Why I regret that the noble Viscount, Lord Thurso, is not in his place is that when I made my comments about the Bill in general I said that to me the concept of making the punishment fit the crime was thoroughly meritorious. I could see nothing better. Of course I was only echoing, probably less eloquently, what the Under-Secretary said in another place when he came to the consideration of the principle of the Bill on 9th May in the Scottish Grand Committee. In paragraph 1, no less, he said: As an alternative to imprisonment, community service has indeed much to recommend it. It can be more constructive and more rehabilitative than a short prison sentence, and overall likely to prove cheaper. It offers both reparation to the community and punishment to fit the crime. I think that nobody would quarrel with those sentiments.

The noble Viscount, Lord Thurso, in a way, did. He said that he would prefer to make the punishment fit the offender rather than the crime. That point of view was echoed by the noble Lord, Lord Kirkhill, when he replied to the debate. Of course I say to that, ça va sans dire; one cannot sentence people unless the sentence fits the offender, otherwise it is a gross miscarriage of justice. It cannot be anything else. So, in all our discussions, let us bear that in mind, and let us have in the forefront of our minds that unless a sentence fits the offender it is an improper sentence.

In the first Amendment—I shall come back to this in discussing other Amendments—what I am trying to do is to make for the maximum flexibility and the maximum harmony as between the sheriff, or the district justice who passes the sentence, and the social work department who have to provide, as it were, the work to be done and supervise its carrying out. The other place debated these matters extensively if not logically, as is their wont, and I do not believe that they paid sufficient regard to these points. It may well be that a sheriff who sentences somebody to a term of hours unpaid work may, as a professional, be completely au fait with what the social work department is doing, and the advantages, or disadvantages, of such an order in his particular part of the world. A justice of a district court is not in that happy position. He will not be nearly so close to the social work department and he will have less idea of what is going on.

The district courts, which I regard as a bold and imaginative experiment in Scotland, are sadly not being used as they should, but that is something which those of us who are keen to form an association of justices in Scotland hope to put right over the years. But I feel very strongly that the justices and indeed the sheriff should be part of the decision-making machinery as it affects these community service orders. Putting it another way, I think it would be wrong, and I think the experiment would get off to an unfortunate start and be much less likely to succeed, if the court is regarded as a judicial sausage machine which presses the community service order button and thereafter has no further part in the matter, and that the social work department will thereafter take charge and everything will be under its aegis.

I have spent a little time on this, because it is the theme of the Amendments I have drafted. What Amendment No. 1 says—and it is simple—is that the court shall be entitled, where appropriate, to fix the days or the times of day when the work is to be performed which is the subject of the community service order. Just think of this: the sort of people who, I hope, will be the subject of these orders are people who would normally go to prison, and that is the whole theme of the Bill. Clause 1 makes that plain. It is not an alternative to a fine; it is not a soft option for some other punishment—not that there are very many in Scotland; it is an alternative to imprisonment. It is the sort of sentence which many of us who have a part to play in Scotland have been longing to see applied for some time. I am thinking—perhaps for the record—of vandals or football hooligans, or people who drive their motor cars thoroughly badly.

What I am asking for is that the judge—rather than having to keep on saying "sheriff" or "justice"—should be able to say: "All right, you went to this football match and made a thorough nuisance of yourself. I am going to see to it that for the next three or four months instead of spending your Saturday afternoon agreeably on the terraces you will in fact carry out unpaid work". I anticipate that the reaction of judges to this legislation will depend in no small part on whether they think that it will have the effect that they want. If they think that these community service orders are merely a soft option to prison and that the defendant or the accused will go away and merely be allowed to work off his orders at a time when it is purely suitable and convenient for the social work department, then I anticipate that the whole system will fall into disrespect, as I said at Second Reading in derision, and I do not think that these orders will be made.

I know that the philosophy of the Government is to do just what I have said that I do not think should be done, and that the judge should be the button presser and the social work department should thereafter take over. I think that that is an unfortunate way of dealing with it. I think that in a limited way, as my Amendment implies, the judge should be able to say what he wants done and should be able, as it were, to invite the social work department to help him in that task.

I would not anticipate such an order ever being made on the first appearance of an accused person in court. I anticipate the judge continuing the case to see, first of all, whether the offender is suitable for such work and, more especially, whether the various conditions in Clause 1(2) can be fulfilled; if they cannot then the case goes no further. But if they can, when the offender next appears before the judge he can ask whether he is willing to be made the subject of such an order and make the order accordingly.

Lord KIRKHILL

I welcome what I judge by the noble Earl's remarks to be broad agreement in principle with the overall tenor of the Bill. He has an emphasis on certain points in the Bill which does not accord with the Government's view, but on Second Reading and again today he has indicated that the measure is welcome and should command, as I believe it does, fairly general support.

As he said, the Amendment would give the courts power to lay down the particular days and times of day at which the offender is required to undertake his community service. The power would be exercisable in all cases, although the court is, in effect, invited only to use it in appropriate cases. However, it is normal for the courts to be involved only in the passing of a sentence—deciding on the type of punishment and then its weight; for example, fixing the length of imprisonment, fixing the amount of the fine or, in the present case, the number of hours of community service. The Amendment would mean the courts' becoming involved in the detailed implementation of the sentence in a way which the Government regard as out of keeping with the courts' traditional role of sentencing.

The Earl of MANSFIELD

I invite the noble Lord to deal with one bit of logic there. Would he not agree that there is all the difference in the world between an order which, in effect, deprives somebody of his liberty and an order which is positive and which says, "You will perform work although you remain at liberty"? Does he not see that distinction?

Lord KIRKHILL

If the noble Earl will bear with me I will explain why the Government do not quite take that point. The punishment is, of course, the fact of having to do a fixed number of hours' work in one's own time; the precise nature and timetable of the work is subsidiary—this is where the Government do not accept the noble Earl's position—and, as such, a matter outwith the scope of the courts. Moreover, even if there were no objections in principle to the courts' involvement in the carrying out of the sentence, there are strong practical objections. Those constitute, in my mind, the nub of the argument against the clause, and again this is where the Government do not agree with the noble Earl. The courts do not possess the necessary detailed knowledge of the nature of the work available for offenders to carry out; nor do they know when the work is likely to be available. Especially, they cannot know what work will be available, say, six or nine months, or even a year ahead, and noble Lords will recall that the duration of a community service order is one year.

The Bill gives the local authority officer supervising the offender the power to specify the times at which the offender is to carry out his work and places the offender under an obligation to perform the work at those times; Clause 3(1)(b) gives effect to that. There is, thus, no question of the offender being able to suit himself. Failure to comply with the local authority officer's instructions would constitute a breach of the order and lay the offender open to action under Clause 4. The local authority officer is in the best position to judge what work the offender should carry out and he must bear in mind the work which is available, the times at which it is available and the character of the offender.

That is not to say the court cannot have any role in reaching a decision about when the offender should carry out the work. There is nothing to prevent the court, under the Bill as it stands, from recommending that the offender carry out the work on certain days of the week or at certain times; and I emphasise that. The local authority officer would, I am sure, pay very careful attention to any such comments by the court and would endeavour to meet the recommendation if that were at all possible. Such an arrangement in the view of the Government is much preferable to the sort of rigidity which the Amendment would create.

The Earl of MANSFIELD

I find the complacency of the Government little short of staggering. First of all the noble Lord, Lord Kirkhill, says the courts will not know the nature of the work or when it will be available. My answer to that is: why not? If I were in the position of considering a community service order and if I did not know what the nature of the work was and when it would be available, I would not make one.

Lord KIRKHILL

I do not want to bob up and down but, as the noble Earl is aware, I pointed out that the order can last up to one year. That is surely the difficulty.

The Earl of MANSFIELD

Of course an order can, and the noble Lord need not apologise for bobbing up and down; we are in Committee and I will bob up and down like mad if I think the debate warrants it, because this is the time when we can do that. Let me explain what worries me. Consider the case of a youth aged 21 or 22 who misbehaves, and let us keep to the football match because it is an excellent example. To such a young man, the rest of the season deprived of the opportunity of following his team on the terraces will be a very real punishment in itself: to say to that young man in September or October, "You will not follow your team"—whatever the team may be; I will not go into names—"because on Saturday afternoons you will do community service; you will help look after old folk, sweep out the hospital and do something useful".

Is the noble Lord really saying it is Government policy not to give the court that opportunity?—bearing in mind that the sheriff is employed to be a judge, to use judgment, whereas a social worker, with great respect, is not; he uses judgment but it is not of the same type. Is the noble Lord really saying that the judge is expected to give 10, 20 or 40 hours' community service, whatever it may be—I bear in mind the minimum, which I have omitted—and say, "You will do 40 hours, which is equivalent to 20 Saturday afternoons, but I do not know whether it will in fact be Saturday afternoons and it may not Saturdays at all. Therefore I make that order"?

I do not want to labour the point. I get the uncomfortable suspicion that the object of the Government is twofold. The first is to minimise the discretion of those who sit in judicial authority, and that is a pity. My second suspicion, which is rather deep, is that the Government either have not really thought out the implications of the Bill—I said that on Second Reading—or they want to make the whole scheme at the discretion of the social work department.

I quite see that social workers themselves do not particularly want to supervise young rips on a Saturday afternoon, but if a scheme like this is to have any chance of success at all so far as the community is concerned, it must be imaginative, it must provide new ways of coping with our crime rate—and I shall come back to that in my final Amendment; but if it is just to be, as I have suggested, a sausage machine, it is doomed to hopelessness. The cleavage between the Government and me is complete on this question and I do not think it would be any good for me to invite the Government to go and think again on this matter. The noble Lord sits there looking like a sphinx—if I am not being offensive—

Lord ROBERTHALL

It happens that I have recently had experience of a case of community work—in England rather than in Scotland, but perhaps the experience will be relevant. In that case a young man with whom I was very closely associated had committed a serious offence and he was sentenced to community work. But before passing sentence the judge suspended the case and took enormous trouble to consult the social authorities concerned in the place where it was proposed that he should work so that, at least in that case, the judge did get a great deal of information which he thought he needed before finalising the sentence. I must add that when the person in question came to serve his sentence the social worker in charge of him took immense trouble to find out the sort of work that he would do and to fit the hours to the job which he was fortunate enough to get. I was immensely impressed by the great trouble that was taken on both sides and I am glad to say that the experience of community work, at least for several years now, has been entirely successful.

Lord KIRKHILL

The sphinx is on his feet, to say that of course the Government would not be able to accommodate this point, as was clear, I think, from my earlier remarks. The main difference between us, in the light of what the noble Earl has just said, is that the Government believe that flexibility should be the keynote of these community orders. The best way to achieve that kind of flexibility is as we lay it down in the Bill which is being considered in Committee by your Lordships at this time.

I do not believe it is always possible to say months ahead that which is most suitable for the offender to engage in. That is something which is best left to the officer who will be supervising his activities. It may well be, so far as the question of football hooliganism is concerned, that some indeed may revert to repairing their vandalism outside the ground while the match is in progress inside. Who knows? But I cannot consider that, because a court does not say that, such a provision will not in fact be effected.

The Earl of MANSFIELD

As I have said, I think the disagreement is complete. To say that a system is more flexible because the judge has less power—and we are talking about sentencing procedure—is what, when I was taught Greek, is called a para pros dokiens. But I shall leave the matter there. If the noble Lord thinks that a pious expression on the part of a judge as to the timing of the serving of a community service order will have any weight with the social work department, then I think he is deceiving himself or is being deceived. I feel cross about this matter because we have so little opportunity for penal legislation for Scotland that the greatest opportunity ought to be taken of it. But for the present I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

The Earl of MANSFIELD moved Amendment No. 2:

Page 3, line 10, at end insert— ("(2A) Upon making a community service order the court shall have regard to the desirability of relating the work to the nature of the offence.").

The noble Earl said: This is the same theme but a different aria. The question arises as to whether a court should be empowered or even encouraged to express an opinion as to what sort of work should be the lot of the accused person who is made the subject of a community service order. At one end of the sentencing scale there are those, I am afraid, like myself, who would adopt the American system and, as I tried to say on Second Reading, if somebody drove thoroughly badly I think I would say, "You can go and spend your Saturday afternoons for the next few months cleaning out the casualty ward in the local hospital to see what happens to the victims of people such as yourself who have driven naughtily". I am afraid that that is not a view which commends itself to this Government.

At the other end you have the judge who is, as I say, just invited to press the community service button and does so, and then it is the social work department which finds the work for the person concerned, allocates it and presumably sees that he does it. But I want to ask the noble Lord: what is the feeling of the Government about the form of community service work that will be available in an area? For instance, will there be the equivalent of what I might call the "municipal chain gang" which will be detailed off to paint a large section of old folks' homes, some (to quote the trendy expression) "ongoing task" which will occupy all those who are the subject of community service orders (assuming that they are reasonably fit) for a long time; or is there to be a series of smaller jobs of a very different nature, some of them involving hard manual work and others, for instance, of a much lighter type, which would be divided among the offenders according to their ages, capabilities and health? Will the social work departments use imagination? In other words, when as I anticipate there is a remand period—if I may so call it—between conviction and sentence, will they set about trying to think up schemes or a scheme which will accommodate the particular offender?

These questions are not just beating the air, because I believe very strongly that the attitude of the judges will in no small measure depend on the type of work which is available and the sort of tasks which these people will be called upon to perform. In the courts of which I have experience these days, the types of offender whom one could see would be the subject of this type of order are very much at I might call the lower scale of criminals. They are people who are not wicked but are more or less incapable of leading their lives in a useful and honest way. As things stand, there is very little that can be done with them. They cannot hold down a job and they cannot pay a fine. They cannot be the subject of a probation order because there is nothing to which they can be directed so far as their future life is concerned. But it would be of immense help if they could be made the subject of these community service orders, always pre-supposing that at the time when the judge is minded to make the sentence there is suitable work.

I know that the noble Lord said that the judge could make some sort of pious declaration of what he hoped would happen, and I assume that besides the timing of the work it would extend also to the character of the work. For myself, as I have said, such sentiments on the part of a court would be worse than useless because if they cannot be carried out, or if the social work department is in disagreement with them, it merely takes away from the authority of the court. I should not think that they would be so used; and I should be interested to hear the noble Lord's reactions to my question.

4.20 p.m.

Lord KIRKHILL

I have some sympathy with the principle underlying the noble Earl's proposal. However, he will not be surprised to hear that I will not be supporting it. This is both because I believe it to be unnecessary and because, as I was emphasising earlier, it takes the courts into the area of detailed arrangements which, in the Government's view, is not appropriate to their role. It is unnecessary because there is nothing at the moment to prevent the court, when making a community service order, from indicating a preference for the type of work which the offender should perform, or the type of work which he might be capable of doing in a reasonable manner.

The noble Earl asked me specifically what kind of work might be involved. It could include working in community centres, youth clubs, or old people's homes, doing gardening or decorating, or perhaps helping to construct or repair adventure playgrounds. There has even been a suggestion that conservation work in graveyards might be undertaken. At any rate, the list is fairly comprehensive. I consider that in appropriate cases the court will indicate a view and that the local authority officer will heed any request that the court may make. The noble Earl is doubtful of the efficacy of that kind of request, and he and I must simply disagree about that. I believe that the local authority officer will not be unmindful of an indication of the court's view.

I know that it has been argued that if a provision such as this were not included in the Bill, community service would come to be regarded as a soft option and, as a consequence, social work departments would be exposed to criticism for leniency towards offenders. I take the view that it would not be a soft option, if only because the person upon whom the order would be served can spend up to 240 hours of his own time doing obligatory work—certainly of course by consent. I agree that it is one of the virtues of community service that it provides an opportunity to make the punishment fit the crime. The noble Earl gave earlier an example of the football hooligan repairing the results of his vandalism—

The Earl of MANSFIELD

I hope the noble Lord will forgive me for interrupting, but I said no such thing.

Lord KIRKHILL

Well, in that case I misunderstood. It was the vandal repairing the results of his vandalism—

The Earl of MANSFIELD

With respect to the noble Lord, I must say that he has become muddled up on this point. I spoke about football vandals not being allowed to go to football matches on Saturday afternoons. That was the argument which I advanced in respect of timing. As to the quality of the work, I suggested that a very naughty driver might well spend his free time in clearing up casualty departments of hospitals—not repairing football stadia, or anything like it.

Lord KIRKHILL

Of course, I apologise to the noble Earl. Nevertheless the point is valid, and we are arguing only on the top of a pinhead if we are disagreeing over what I am saying.

Much will depend on the nature of the work placements which will be available at the appropriate time. If we are to attempt to fit the punishment to the crime, we shall not always be entirely successful. I do not think that that is necessarily the whole point of community service provision. As I indicated earlier when the noble Viscount, Lord Thurso, spoke, I would see merit in relating the offender to the particular work of rehabilitation. Undoubtedly, there is the case where an offender does not have the skills to undertake a particular task which may seem appropriate—an example of a simple task might be repairing a broken fence—and he might have to be directed to some other job of which he is capable. It is in order to retain that kind of flexibility that the Government wish to sustain the Bill in its present form.

The Earl of MANSFIELD

I want to come back to the noble Lord on this matter because he has not really answered what I was trying to put over, and which no doubt I failed to do. For instance, he has not mentioned anything about voluntary societies. If much use is to be made of the orders by the courts, it is extremely important to bear in mind that those who sit in the courts will want to know that there is some point and purpose to this question other than merely statistically lowering the gaol intake. I asked the noble Lord whether voluntary organisations in a particular locality were to be invited, for instance, to submit schemes. I should have thought that that would be an excellent idea, though I can see difficulties of supervision. If that is the case—and this is what happens in England, and it is, I assume, what will happen in Scotland—how will the detailed monitoring of the offender's performance be carried out, and by whom will it be carried out?

As I said on Second Reading, it seems to me that if this scheme is to become general throughout Scotland, and if it is to be of use, it will need the allocation of very considerable resources for its implementation, and I do not think that those resources presently exist. It appears to me that by using voluntary organisations of one kind or another the Government and the community can achieve what they want to do in a very cheap, yet effective, way. The noble Lord is very coy about the kind of work involved—whether it will be effective and useful work, or whether there is to be a deterrent element in it. I think there is supposed to be a deterrent element in the scheme because at column 95 of the Official Report of the Second Sitting of the Committee in the other place, on 25th May, Mr. Ewing said: I am not saying that the Bill will prove to be a deterrent, although I hope it will be. I think that those who have to carry out the sentences in public might well he deterred, and it will serve a meaningful purpose in deterring them from offending again". I detect again there the nuance of the chain gang; some pillar of the local community who has got himself into trouble will be marching about with a pickaxe in full view of the local citizenry and will thereby be deterred. But I do not know what Mr. Ewing meant. Perhaps the noble Lord can tell me. I hope the noble Lord will agree that the points I have put forward are constructive and useful, and are made only because I am so determined that the sentencing procedures and what follow for Scotland should be improved.

Lord KIRKHILL

Perhaps I should have said earlier—I did not give sufficient weight to this—that in the pilot schemes which meantime exist in Lothian, Grampian and other areas, the voluntary bodies have indeed been considerably involved. As that has already taken place, I consider that an expansion of that kind of involvement will undoubtedly take place from this time onwards.

The Earl of MANSFIELD

This is a matter to which we may return at a later stage of the Bill. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Obligations of persons subject to community service orders]:

The Earl of MANSFIELD moved Amendment No. 3: Page 3, line 35, leave out subsection (3).

The noble Earl said: This is a short matter. I really want enlightenment from the noble Lord. Clause 3 (3) says: The instructions given by the local authority officer under this section shall, so far as practicable, be such as to avoid any conflict with the offender's religious beliefs …".

It is those latter words which I am bound to say at first blush I really find rather offensive. I ask myself: What could they possibly mean? One has visions of Hindus being made to work with greasy cartridges, or something; but there must be more to it than that. It may, on the other hand, be sloppy thinking on the part of the Government, and they do not want a Rangers supporter to have to go and paint the Celtic stand, and vice versa. But what worries me slightly, although not overmuch, is that some young gentlemen who may be reasonably ingenious, or in fact old gentlemen, for that matter, who may be old soldiers and even more ingenious, may well be able to out-manoeuvre the social workers, who are supposed to be carrying out their duties and making them work the necessary number of hours, by such a device; and I really wonder whether it is necessary to include that in subsection (3).

Putting it in another way, I entirely agree with the latter part of the subsection. I would not seek to have that cut out in any way, shape or form, and it would he a very foolish social worker who tied somebody up to undergo periods of community service when they should be either working or learning. That would be very stupid. But I wonder whether the noble Lord—perhaps he might like to consider it—really thinks that conflict with the offender's religious beliefs has any part in a Bill like this. I beg to move.

Baroness WOOTTON of ABINGER

Surely difficulty might arise in the case of somebody of the Jewish faith who was asked to perform work on the Sabbath, which would be in violation of his religious beliefs. The timing of work might be important, both in relation to work on the Jewish Sabbath and on the Christian Sunday.

Lord KIRKHILL

I think the noble Earl and I are in agreement that it seems eminently sensible that the offender should be able to continue with his employment or education. Indeed, it is possibly the greatest virtue of community service that offenders are enabled to keep their employment and thus preserve their family unit in certain cases; or to continue their education, on which, perhaps, their future as good citizens may depend. But, as my noble friend Lady Wootton has just said, I do not think we would dissent from the view that any religious views which the offender holds and which prevent him from working on particular days should be respected. That is the view of the Government: hence subsection (3).

The Earl of MANSFIELD

The noble Lord, Lord Kirkhill, has clutched with both hands at the straw which was held out to him by his noble friend; but is it necessary that this should be written into the statute? We have here a situation where judges are not going to be trusted to lay down the times of work and the type of work. We have had that debate, and I shall not go over it again. It is all to be left to the good sense of the social work departments. That is a point of view which I do not share but which I accept as being the Government's view. Whereupon, in the very next clause the Government turn the whole thing upside down by saying, "The social work department cannot be trusted, in effect, not to order somebody of the Jewish faith to work on the Sabbath, and therefore we have to write it into the Bill".

I just think that it is offensive; I think it is unfeeling; I think it shows a distinct lack of imagination on the part of the draftsman. If you are going to give the social work departments the very wide measure of latitude which they have, surely they can be trusted not to make somebody do something which his faith tells him not to do or make him do something at a time when he ought to be doing something else because of his religious conviction. But there it is; if that is the attitude of the Government, so be it. I see the noble Lord is rocking back and forth. Is it in anguish or because he wants to address the Committee?

Lord KIRKHILL

It is merely that I hope the noble Earl is emphasising the general question of religious conviction and not the particular position of anyone as it relates to an individually-held faith. It is the broad view of religious conviction which was in the Government's mind as they constructed this clause.

The Earl of MANSFIELD

I understand the noble Lord quite well. I think it is a very poor and insensitive piece of drafting, but there it is. He apparently sees some justification for it, and I beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Failure to comply with requirements of community service orders]:

4.37 p.m.

The Earl of MANSFIELD moved Amendment No. 4: Page 4, line 11, leave out ("£50") and insert("£25").

The noble Earl said: I should tell your Lordships—I hope that the noble Lord the Chairman has already been told, and I certainly hope that the noble Lord, Lord Kirkhill, has been told—that there is in fact a misprint here. It should be "insert £20" and not "£25". Whether it is a misprint or whether it was that the hand that held the biro last week—to wit, mine—did not do what the brain told it to, I do not know; but that is the Amendment which I seek to write into the Bill.

The point of it is this. Under Section 186 of the Criminal Procedure (Scotland) Act 1975, failure to comply with the requirement of a probation order gives rise to a monetary penalty not exceeding £25. Here we have the Government setting up this new form of punishment and providing in Clause 4(2) that if the offender has failed, without reasonable excuse, to comply with any of the requirements of the order, the court may fine him a fine not exceeding £50. If the two methods of dealing with an offender were totally distinct, I would have no complaint. In fact, it seems to me that if a community service order is an alternative to prison, if somebody fails to comply and the court still thinks he should be kept out of prison, a monetary penalty might well be the answer. But the difficulty is that in Clause 7, to which we shall come directly, the Government have, as it were, sought to have the best of all worlds by imposing a probation order plus community service; and, as I understand the position, if I am right, the penalty can still not be more than £20.

If that is so, we have the slightly odd situation that a person upon whom there is imposed a community order simpliciter may be fined £50, whereas a person who is the subject of a probation order with unpaid work as a condition of it can be fined only £20. If I had had more time, I think I would have tried to pump probation order breaches up to £50—and I am not using very Parliamentary language when I say that. But I did not have time and I thought that for the sake of consistency it would be better to bring the penalty in respect of the community service orders to £20. I beg to move.

Lord KIRKHILL

This Amendment seeks to make the maximum fine available for breach of a community service order, if the order is to continue, £20 rather than £50. As the noble Lord has said, this would be in line with the present maximum fine for breach of a probation order, if that order is to continue. The Government consider that £20 is too low a maximum and that £50 gives the court a sufficiently severe penalty to warn offenders that they must perform the work that the court has ordered them to perform.

The £20 figure for breach of probation was fixed in 1967 and its value has since been eroded by inflation. The Government hope to take the earliest legislative opportunity to raise this fine to £50 so as to remove the anomaly to which the noble Earl has referred. This would have been done by the proposed Criminal Justice Bill which, sadly, did not go ahead this Session owing to lack of Parliamentary time. I think that that is as fair an explanation as I can give.

The Earl of MANSFIELD

I am grateful to the noble Lord. At least, it shows some consistency on the part of the Government. May I ask this? We cannot have a Criminal Justice Bill for Scotland this Session and I doubt whether we can have one this Parliament. As usual, in Scotland we are going to be left with the worst of all worlds with two parts of the same Bill which can have different penalties. That is not logical and can bring the law into disrepute. May I ask the noble Lord to go away and to consult with his advisers as to whether he could bring these penalties into line without altering the Long Title of the Bill. I doubt whether we can, but that would be more consistent than what the Government seek to do. In the meantime, I beg leave to withdraw the Amendment.

Amendment by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 and 6 agreed to.

Clause 7 [Requirement that probationer shall perform unpaid work]:

4.44 p.m.

On Question, Whether Clause 7 shall stand part of the Bill?

The Earl of MANSFIELD

As your Lordships will know, community service orders of a kind have been on the Scottish penal landscape for some time. They were an unofficial, ad hoc and, probably in the strict sense, an illegal method of dealing with offenders because they were tacked on to probation orders in four areas of Scotland. It is as a result of those experiments, if I may so call them, that the present Bill emerges. The Government have not followed the procedures in their entirety which were the subject of the Criminal Justice Bill (now Act) of 1972, on which, as I said before, I made my maiden speech in this House to be followed closely by the noble Baroness, Lady Wootton, who was as always kind. I do not blame the Government for not following those procedures because there is no reason why Scotland should follow slavishly the legal procedures of England.

Nevertheless, I think the Government have got themselves into a pickle by trying to have the best of all worlds; that is, by having under this Bill community service orders simpliciter but by trying to retain probation plus community service under Clause 7. For three reasons, to which I shall come, I think this is a nonsense and I think also that it is bad law. I am fortified in this by several representations which have been made to me by persons connected with social work in Scotland.

My first argument is this. It is undesirable to have a judge in effect saying to himself: "I am minded to send somebody to prison. Have I an alternative in these circumstances?—Yes, I have! The alternative is a community service order". That, I think, is totally logical and that is what the Bill says. Where I part company with the Government is that it is illogical to say: "Can I send this person to prison?—No, I will not. I will put him on probation and have a community service order." To my mind, the probation order should mean that the full resources of the State in this connection are, as it were, beamed upon the offender to try to redeem him using all the various facilities and expertise which are available to the social work department.

I do not think it is a good idea that the people who are going to try to redeem an offender should also (even if in a different guise), be responsible for making him carry out work for which he may be constitutionally quite unsuited, which he may find most uncongenial and which he may not be fitted for—despite the efforts of the social workers to find suitable work for him. In other words, I believe that there should be a difference and a differentiation between the facilities which the probation order makes—which is not a punishment and never has been a punishment under our judicial system—and a community service order which is a punishment, is stated to be a punishment and is hoped to be a deterrent. That is my first argument. I know what the noble Lord is going to say. He is going to say that we must have extreme flexibility.

My second argument is this. It is an entirely different technical and nuts-and- bolts argument. If you have a resident in Scotland who is made the subject of what I might call a "Section 7 order", who, in other words, is put on probation with a condition of community service (unpaid work, if you like) with it, and he then moves to England, part of the probation order dealing with community service will then have to be lifted. This is because, as I understand it, and I think I am right, the two cannot go hand in hand; so that the court which has been minded to impose what was inelegantly described by one of the honourable friends of the noble Lord, Lord Kirkhill, in another place as a "beefed up" probation order will find that in fact the beef will then be removed and the emaciated skeleton of the probation order will be all that remains.

Again, one is left with an illogical situation and a silly situation. The noble Lord, Lord Kirkhill, may say it is unlikely to happen all that often. I do not believe that. Many of us Scots have had to desert our native heath in order to earn our living; and this may happen to a person who is the subject of such an order.

The third point is also technical and legal. I hope that I have got it right; but, no doubt, the noble Lord will correct me if I have not. Under Section 5 of the Rehabilitation of Offenders Act 1974, the noble Lord will know that the period after which the conviction is "spent"—if I may use that expression—starts to run one year from the date of the conviction or the ending of the order, whichever is the longer. If one is put on probation for a year, at the end of the year the conviction is spent for the purposes of the Rehabilitation of Offenders Act 1974. On the other hand, if one is made the subject of a community service order, as I understand the position, then the period is not one year or the ending of the order, whichever is longer, but five years.

We have this possibly illogical position that if the court decides to impose a community service order simpliciter, the period is five years; if the court is minded to impose what I might call a Clause 7 order, then the situation is different. So the person who is the subject of the "beefed up" order does much better under the Rehabilitation of Offenders Act than the person who is not. I wonder whether the Government intend the consequences of this, and whether they should like to consider the three arguments that I have put forward. We can, I suppose, return to this matter at a later stage.

Baroness WOOTTON of ABINGER

I think there is force in the noble Earl's technical arguments, but there is also a history behind this. I speak as the chairman of the committee which first recommended the introduction of community service in England and Wales. The committee argued for a long time whether community service should be an order in itself—simpliciter, as the noble Earl has said—or whether it should be a condition in a probation order. The committee was of the opinion that the arguments either way were very finely balanced, not having regard to the difficulties that would arise if subsequently this scheme was extended under the new Scottish Act.

Eventually, the committee recommended that it should be open for the court to do it either way. In the case of day centres, which have subsequently been introduced, the provision is for attendance at the day centre to be a condition of a probation order. It is not an independent sentence in itself. So both means have been used of occupying the time of persons who are subject to limitations upon how they spend their time. In the case of community service, the Government decided not to introduce the alternative of it being a condition in a probation order. It appears this has now been revived in the Scottish Bill as a possible alternative.

The arguments are still finely balanced and it is undesirable that the court should be bothered with having to consider which way to do it. This aspect largely determined the issue eventually with many members of the committee. Sentencing is getting so extraordinarily complicated that it might be desirable, if a community service order were to be imposed, that this should be an order in itself and there should not be yet another alternative of doing it a second way. For that reason, I have great sympathy with the technical reason which the noble Earl has produced for his Amendment.

Lord KIRKHILL

As the noble Earl anticipated, the Government believe it desirable that the courts should have the maximum possible flexibility in choosing the appropriate disposal for all of the offenders who come before them. There will be some cases in which the discipline and support provided by a probation order—which can last up to three years while a community service order lasts only one—will be needed as well as the obligation to perform work and others in which a community service order alone will be sufficient. The Bill therefore provides for both.

In addition, community service is still at a very early stage: even in England it is only now being extended to cover the whole country, and there is no conclusive evidence—as may be seen from a difference of view among social workers in Scotland—as to whether community service should be free-standing or attached to a probation order. By providing for both approaches the Bill gives the opportunity for both to be tried and I think both bodies of opinion accept that that is desirable. As is evident from the schemes already under way, we may expect that one or other approach, or perhaps a combination of the two, will be adopted in different areas, depending on the views of the courts and social workers concerned, worked out in discussion and through experience.

Additionally, noble Lords should realise that the Amendment does not succeed in what I have taken, thus far at least, to be its aim: to prevent community service requirements being attached to a probation order. At the moment the courts have the power to attach to a probation order any requirements which they consider necessary to securing the good conduct of the offender. It is this power that they use to order community service in the present pilot schemes and they could continue to use it even if Clause 7 were deleted from the Bill. The only effect of removing Clause 7 would be to take away some of the statutory limitations on such requirements; for example, the limitation to between 40 and 240 hours' of work or the precondition that the court must have been notified that arrangements exist for the offender to perform community service.

In short, the removal of Clause 7 would not stop the use of community service as a condition of a probation order; but the procedures relating to the arranging and supervising of community service orders would not apply. I understood the noble Earl in an earlier phase of his remarks to doubt the present legal validity of the experimental schemes. At the moment a court may attach to a probation order any requirement it considers "necessary" to secure the good conduct of the offender or to prevent a repetition by him of the offence or the commission of further offences. In the opinion of the Law Officers, who were specially consulted on this matter, this may include a requirement in appropriate cases to perform community service.

As to the case that probation orders with a community service condition attached cannot be "exported"—if that is the right word—to England, I am advised that, strictly speaking, this is the case. But the offender or the supervising officer could refer the case back to the court under Clause 5. The court could then, in the exercise of its powers under Clause 5(1)(d), substitute a simple community service order for the original sentence. This could be "exported". It is not expected that this situation will arise frequently.

The noble Earl pointed to the question of different rehabilitation periods for community service and community service as a requirement for probation. I can confirm that this is a slight but unavoidable anomaly. The rehabilitation period for community service in its own right is five years, while the period for community service as a requirement of probation is the same as that for a probation order: that is to say, the length of the order. This is not in itself, or even with the other main argument led by the noble Earl, an argument against Clause 7. I hope that has been of some help.

The Earl of MANSFIELD

I want to come back to the noble Lord about any necessary requirement which a court may impose on an individual when the court is minded either to make a person the subject of a community service order or to put them on probation with a condition of unpaid work. I assume that if the court is satisfied—and I do not have the full words of what the noble Lord, Lord Kirkhill, said, but I think he said this, if I may paraphrase it—the court could impose any necessary requirement in effect to prevent the offender from repeating the offence. If a judge came to the conclusion that the offender was a young man who was liable to commit offences on Saturday afternoons, he could make a condition of the probation order that he should absent himself from football grounds on Saturday afternoons and do unpaid work. If that is true it makes nonsense of a lot of this Bill, because if the judges want to specify either of the matters I suggested in my earlier Amendments they might want to do, they would adopt the flexibility which the noble Lord is so keen on and, far from making an order under this Bill, they would make an order under Clause 7. The noble Lord may like to reflect on that.

The noble Lord said that if someone decamps to England the probation order might be revoked under Clause 5(1)(d). I shall have to look that up, but unless under Clause 7 the provisions of Clause 5 are read into the original Act, then you could not revoke a probation order in those terms. That is something I should like to take up at a later stage of the Bill. I hope that the noble Lord will reflect on what I have said, because there seems to be a certain absence of logic somewhere.

Clause 7 agreed to.

Clauses 8 to 10 agreed to.

5.2 p.m.

The Earl of MANSFIELD moved Amendment No. 5:

After Clause 10, insert the following new clause:

Annual Reports to be laid before Parliament.

(". The Secretary of State shall lay before Parliament each year, or incorporate in annual reports he already makes, a report of the working of community service orders.").

The noble Earl said: This is a matter which received an airing in the other place but for all that I think it is proper that it should be raised again. The Amendment seeks to establish a duty on the part of the Secretary of State to make an annual report in effect as to the working of community service orders, either in the form of a report on its own to be laid before Parliament or as a report to be incorporated in the annual reports which the Secretary of State already makes.

I find it difficult to understand why the Government appear so reluctant to accept what seemed to me to be a very reasonable request on the part of my honourable friend when he moved this Amendment. I have attempted to find out what has happened in regard to community service orders since they first started in England and, even more so, since the pilot experimental schemes were introduced in Scotland. On the general working of the schemes in both countries, there is very nearly a deafening silence. The only report I can find—and it may be that I have not been sufficiently diligent or lucky—is the Home Office Research Study No. 39, which in its way is a helpful document, although it is not at all reassuring, may I say. I shall not go into it, but it produces some rather alarming statistics, and in particular says that the re-conviction rate of all subjects of these orders within 12 months is no less than 44 per cent.

Baroness WOOTTON of ABINGER

May I intervene just to say that that particular report related only to the pilot areas in England and Wales, as later statistics were not available.

The Earl of MANSFIELD

I am aware of that. The noble Baroness and I both know that the Home Office has nothing much to do with Scotland, and I am sure that your Lordships will take note of that also. Be that as it may, I do not think it affects the percentage of the re-convictions with which I was regaling the Committee. It is sad—

Baroness WOOTTON of ABINGER

I hope the noble Earl will forgive me for interrupting again. The point I wanted to make was that the statistics related to the first 600-odd cases in the six pilot areas. In the current year there have been 12,000 cases covering practically the whole of the country, and we have no information as to the recidivism rate among the subjects of the current community service orders.

The Earl of MANSFIELD

I am obliged to the noble Baroness; she comes to my aid in this matter. We are in the dark, and it is for that reason that my Amendment seeks to throw a little light. I hope, however, that, from what I have said this afternoon and at other times in this Chamber, noble Lords realise that I am a passionate believer in penal reform. But it is no good having penal reform unless we get the knowledge and the statistics as to what is happening and see whether it is a success and whether we can hopefully extend it into other areas or should think again and try something else. That is the burden of my argument: no more. I see, to my delight, that the noble Baroness is now smiling at me.

The effect of these orders is three-fold I think. First, it is to save people from going to prison, and we in Scotland have one of the highest prison populations in Europe. It is something to be deplored; and all of us who have any connection, in whatever capacity, with the legal system—and in my capacity with SACRO I certainly do—cannot fail to be disturbed by it. The Government have the resources to do something about these statistics, and anything that can be done should be done, I think.

Secondly, there is the fact that the community service order, hopefully, will deter people from crime and not only those who are made the subjects of orders. I am not terribly hopeful that once it gets about that this sort of sentence can be imposed by a court it will have a very salutary effect on the general population. I do not think it is realistic to believe that such would happen, but even if it has some effect it would be satisfactory and, after all, the object of bringing forward this legislation, or part of it, as the Under-Secretary said in the other place, is to deter from crime.

Thirdly, the most hopeful and likely effect of this Bill is that it will re-educate those who are made the subjects of community service orders so that they may be able to lead a better, more fruitful and certainly a happier life as a result of the voluntary or unpaid work they are ordered to do. As I have said, the very sparse statistics which are available do not show a very happy picture, but it may be that things will settle down in Scotland as the system becomes more generally applied and as people become used to working it and to working with these offenders.

All these things reinforce what I am trying to urge on the Government, namely, that there should be a duty to produce statistics and to produce them regularly, comprehensively and in a helpful form, so that all those who are interested, either because they are professionally engaged in these matters or because, for one reason or another, they have to deal with offenders at various stages, should be able to make up their minds as to how the scheme is going and, above all, how it might be improved. I know the Government say they are going to produce statistics of a sort next year, but how much better it would be to write into this Bill an Amendment such as this, which I do not think would cost very much money and which I think would have a very beneficial effect on the whole scheme. I beg to move.

Baroness WOOTTON of ABINGER

The noble Earl is mistaken, if he thinks that I am not in sympathy with the principle of this Amendment. I warmly welcome it. I wish, indeed, that such a clause had been inserted into the Bill relating to England and Wales. The only point that rather puzzles me is where this report is to come in. We now have a report from the Home Office on the Prison Department, and we also have a report on the Probation Department. But, so far as I am aware, there is no independent community service department and it does not lie properly under either of the other two. But this is obviously a technical matter which could be solved by the bureaucracy, and I very much hope that we shall have continuing reports.

Baroness WARD of NORTH TYNESIDE

I should like to support this Amendment. I was a magistrate for very many years, but I remember very well that when I was in another place there were very few magistrates there. I have no idea how many magistrates there are in your Lordships' House. But when we are introducing a new Bill, and a new idea for dealing with people who have offended against our laws, Parliament ought to know what is thought about it. Certainly, when I was a magistrate, it would have been very helpful indeed, when Bills made rather complicated arrangements, if we had been able to say "Can't we let Parliament know what our views are and then, if necessary, persuade Parliament to make an alteration in the law?" It is quite ridiculous, when Parliament is very concerned about this whole matter, that it is not to have a report. So I think that it is a most excellent suggestion that has been made by my noble friend.

I do not mean to be objectionable to the noble Lord, Lord Kirkhill, because I am sure that he will be very nice about the Amendment, but it would sometimes be a good thing if, when Governments were dealing with these matters, they realised what magistrates themselves would like. I do not think that it is for Parliament to introduce a Bill without having regard to what magistrates would like. We have a perfect right to come forward, especially as, as I said, there were very few magistrates in another place when I was there. That would help the whole situation. So I hope that the noble Lord will accept this Amendment, and not just say that, for some reason or other, he does not think that it is a good Amendment.

He ought to think that it is a good Amendment, and he ought to welcome the idea that Parliament should be informed. Magistrates will then have a chance to put forward their views, if they do not like the laws or do not think that they are fair or just. They might even want something else which would make their task easier—because magistrates need quite a lot of help in these very difficult matters. So I look forward to hearing from the noble Lord, and I shall be most delighted if he says that it is a good Amendment and that he is pleased to accept it.

Baroness FAITHFULL

Very briefly, as a social worker I should like to support this Amendment. I do not see how, without figures and facts, one can carry out research and assess whether or not one is going in the right direction. f profoundly believe in community service orders, and have had personal experience of them, but we need to base our policy on facts.

5.15 p.m.

Lord KIRKHILL

I shall immediately have to disappoint both noble Baronesses by saying, in a deadpan manner, that I am unable to accept this Amendment. But perhaps I can be of some assistance by confirming that, despite the deafening silence on the Scottish scene at the moment, which the noble Earl detects or does not detect, depending on which way one looks at it, the existing experimental schemes are being monitored in considerable detail by the Scottish Office Central Research Unit, and it is expected that an interim report will be available at the beginning of next year. The Government believe that there will be continuing interest in community service, as schemes develop progressively throughout the country.

A general description of the working of community service will appear in the Annual Report of the Social Work Services Group, and detailed statistical information will be provided annually in Criminal Statistics—Scotland, published by the Scottish Home and Health Department, including a breakdown by age and sex of the offenders, by the type of court imposing the order and by the number of hours imposed. Of course, if there are other aspects which noble Lords wish to draw to my attention, the Government will be perfectly happy to examine the practicability of gathering information. But the Government do not feel that an obligation to produce a specific report on the operation of community service, as such, would be particularly helpful.

Baroness WARD of NORTH TYNESIDE

With the leave of the Committee, may I say one more word? That was a very disappointing answer, and I am surprised that the noble Lord, whom we all admire, was prepared to give such an unsatisfactory answer. Does he not realise that magistrates would like to have the opportunity of putting to Parliament what they think? I do not at all mind about this being monitored. What I want to ensure is that Parliament shall know what magistrates think of the laws that have been passed. It gives great confidence to magistrates—at least, so far as I know them—if they think that their views can be set out to Parliament, so that Parliament can then discuss them. We are always talking now about getting better contact between the community and Parliament, and here is an opportunity to do it.

It is absolutely ridiculous that someone should have advised the noble Lord to turn down this Amendment. After all, he has heard of the experience of two very well-known noble Baronesses, who know a great deal—probably, a great deal more than the noble Lord—about the difficulties in dealing with these matters. So I am absolutely horrified that the noble Lord should have been advised in that direction, and I hope that there will be an opportunity to discuss this again.

Lord KIRKHILL

The noble Baroness will realise that the report, as envisaged by the noble Earl, would come from the Secretary of State and not from magistrates as such. Perhaps I may make that distinction, although it is not perhaps very important. It is also fair for me to say that I have sympathy with the Amendment which the noble Earl seeks to make. The difficulty in accepting it that I find for my part is mostly one of the timetable, as the Bill has to go to the Commons. But I will look at the matter, and that is as much as I can say at this stage.

Lord LEATHERLAND

I suppose that there is something unholy about an alliance which finds me speaking in the same tone of voice as the noble Baroness, Lady Ward, but I feel there is a great deal in what she said. I do not support her for the reason that she gave; namely, that the views of JPs would need to be made known to the Government. I rather support her from the other angle, that JPs should learn how this scheme works. At the moment they do not know anything about it except what the Magistrates' Association has probably told them before the scheme comes into full-blooded operation. If, however, an annual report were to be issued describing the experiences of the authorities, it would be of enormous importance to magistrates who from time to time would have cases put before them which it would seem could be appropriately dealt with by this method. Although my noble friend cannot accept the Amendment at the moment, I hope that the Government will give further consideration to it and come forward with something else at the Report stage.

Lord BROWN

I am an ignoramus on this subject, and therefore a little puzzled. Perhaps the noble Earl, Lord Mansfield, could tell me, if not the rest of the Committee, why he is pressing this Amendment? I understood from my noble friend Lord Kirkhill that there will be an annual statistical report on the working of the service. I cannot see the difference between the procedure that will be operated in any case and the procedure that would emerge as a result of the Amendment. I am puzzled.

Lord LEATHERLAND

If I might be pardoned for speaking again, we are suggesting here something which is quite different from the statistical report that my noble friend has mentioned. We want a kind of essay in descriptive form which says that a particular youngster was taken and dealt with in a particular way, and that he responded to this or that kind of treatment or to this or that kind of employment to which, if I may use the word, he was sentenced. Therefore, the statistical report which is usually published in connection with the proceedings of all courts would not meet the situation. We want to know, in the form of a psychological analysis, if you like, how these youngsters have responded to the kind of treatment which has been given to them.

The Earl of MANSFIELD

This has been a useful debate and I thank the noble Lord, Lord Leatherland, for completing my task so far as the noble Lord, Lord Brown, is concerned. The purpose of the Amendment is twofold. It is to go a good deal further down the road of information than the mere gathering of statistics. Secondly, it is to embody the knowledge which is obtained from a number of different organisations and arms of the Government in one document where it can he read, digested and understood by a great many more folk than magistrates who, as some noble Lords will know, play a fairly insignificant role in the administration of justice in Scotland.

I hope that the noble Lord, Lord Kirkhill, will confer with his colleagues on this point, because he did not really say why he thought it was undesirable to have statistics in the form which is proposed by the Amendment. I know that the noble Lord said that there will be statistics and that there will also be a report of the Social Work Services Group; but he did not tell us either that it was too expensive or unnecessary or, going a little further, that it was undesirable to have knowledge which I feel would be very useful and would help along this imaginative and thoroughly praiseworthy scheme. It is a pity that it should be spoiled, if at all, by this lack of knowledge which is likely to come about. However, the noble Lord has been generous enough to say that he will look again at the matter. I do not believe that the other place will be so hectic during the next few weeks that they will be unable to consider, one hopes favourably, an Amendment such as this, or any others which your Lordships might feel should be written into the Bill at a later stage. That would be a sad argument to put forward. Having said that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Remaining clauses and the Schedules agreed to.

House resumed: Bill reported without Amendment.