HL Deb 18 July 1978 vol 395 cc231-45

6.34 p.m.

Report received.

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: My Lords, your Lordships, or at least some of your Lordships, may recall that this small Bill was considered in Committee last week, when we had a debate, or a series of debates, on precisely the Amendments which I have tabled again and seek to move this evening. It may be thought that this is not a very important Bill and that, with the state of the Parliamentary timetable being what it is, it is perhaps not particularly fitting that too much time should be spent on it. But I make no apology for returning to the subject tonight, and I say that for this reason. Scotland does not enjoy, or has not in the past enjoyed, its fair share of Parliamentary time; it lags behind England so far as penal reform is concerned; and those of us who care passionately about the subject—and I am very happy to number myself among those—feel that when Scotland is offered the opportunity to consider penal reform (and this Bill is no less than that) the matter should be thought out with the greatest of care, and it is right that Parliament should give the matter the time and the care it deserves before, hopefully, this enactment passes on to the Statute Book.

Some of your Lordships may know that it was the Government's intention to pass a far more far-reaching criminal justice Bill for Scotland; but, unfortunately, time has prevented such happening. It should be realised, however, that we in Scotland do not have, for instance, suspended sentences; we do not have the equivalent of English attendance centres, and this I regard as important; we do not have, although there was an experiment which failed, the equivalent of detoxification centres. We lag behind in the treatment of our criminal population; and we should also remember that the prison population in Scotland, as a proportion of the population of the country as a whole, is among the highest in Europe. After that short sermon, if I may so describe it, I will get ahead and describe my Amendment.

In Clause 1 of this Bill the court is entitled, subject to various subsections, to make a community service order in respect of an offender. It is right to point out that in subsection (2) the offender has to consent, the court has to be notified by the Secretary of State that arrangements exist for persons to perform work in that locality, and various other matters have to be gone through or satisfied. In Clause 2, to which this Amendment is directed, the community service order has to set out various requirements and details which will apply to the particular offender. I think that there is really not so much between the Government and me as at first blush might appear. The court may make this order, which will, in effect, condemn the offender to do unpaid work on behalf of the community. I am not going to go through all the authorities which I quoted in Committee, but in the view of the Government such orders are meant to act as a deterrent. The Bill was amended in the Commons so that it should be made perfectly plain to courts that this is by way of being an alternative to imprisonment and is not meant to be a soft option by a court which does not really know what to do with an offender.

All these matters, I submit, are important, and play a part in how the scheme is going to operate and whether it will be a success; but what the Government contemplate, apparently, is that the court will make up its mind as to whether a community service order is justified, no doubt will make the necessary inquiries locally, and then, once it has satisfied itself, first, that it would be appropriate to sentence the offender accordingly, and, secondly, that the various conditions which I have already related in Clauses I and 2 of the Bill are met, will make the order, after which it will be up to the social work department to allocate the work, see to it that the offender carries it out, and generally complete the process.

In the Commons there were various analogies and examples given of the sort of behaviour which might lead to these orders; and we in this House, too, talked about young gentlemen who misbehave at football matches, and so on. That is not a bad example, I think, and it is one which I propose to use tonight. It seems to me that it would be desirable, to put it no higher, if a court when it is sentencing an offender to undergo a community service order should be entitled to say, in effect; "You have made misuse of your spare time or your free time or your leisure time and we are going to see to it that for a period you will not be free to enjoy, for instance, going to a football match on a Saturday afternoon." What the deterrent value of that is, I should not like to guess. I would submit that it must be considerable.

The noble Lord, Lord Kirkhill, when we discussed these matters before, said that he wanted to see what he would term the maximum flexibility; that it should be the service people there who allocate the work and it is really a matter for them rather than the court. The social work department in Scotland, as I suggest and have been told, are very much overstretched. They do not enjoy the service and resources lavished on them which they no doubt deserve and which, if we were a richer community, we would allocate to them; but the fact is that they do not enjoy the resources which they should. I believe it would be a very much better way of making these orders if there were a partnership as between the court and the social work department which would give the eventual community service order, in the proper instance, a rather greater authority than I suggest it would have if the court does not have the opportunity of making known, in the right instance, its views on what periods should be served by the offender.

I know that, again, the noble Lord, Lord Kirkhill, said that there is nothing to stop a court from making any recommendation or suggestion that it may make. The answer to that is that courts are very ill-advised, in my experience, if they trespass beyond the realms of what they are entitled and enjoined, either at common law or by statute, to do and say. Many judges have got into trouble by going beyond their actual task. For a judge to make a recommendation which may or may not be carried out by the social work department is, I think, at best risky and at worst could bring the courts into disrepute or, dare I say, even contempt.

It is all very well for a court to come to a decision and announce what it considers its preferences to be; but if they are not followed by the social service department that would have a bad effect, or a potentially had effect, in the mind of the offender. The analogy was also taken that if the court sentences somebody to prison, that is the end of it; and it is for the prison service to decide where he serves it and how he serves it; it is not for the court. I suggest that that is not a wholly fortunate analogy. A proper sentence is a sentence for the deprivation of liberty. That is all it is. A sentence, I suggest, of a community service order, in fact, is a positive order for somebody to work without pay at certain times. Who decides those times is what we are talking about. There is no deprivation of liberty. So at that stage I would say that my argument rests, except that there is one more matter which arose during the Committee stage of this Bill.

Under Clause 7 of the Bill, the Government have retained and legalised the experimental sentence which has been carried out in four areas in Scotland and which is, in effect, a sentence of probation coupled with a community service order on top of it. In Committee—and I am not going over it again—I tried to argue that that was not a good idea because it was neither fish, flesh nor fowl. What I do pray in aid is that when he came to reply to that part of the debate the noble Lord, Lord Kirkhill, said—and rightly, if I may respectfully agree with him—that the court may order any requirement in effect which may be necessary to secure the good conduct of the offender. It seems to me that it would be perfectly in order for a court—and let us once more, and possibly for the last time, take the football offender—to say to itself: "What are we going to do with this young man who, because of his past record or the nature of the offence, is liable to a term of imprisonment? We could do a number of things. We can put him on probation and order that he does not attend football matches. That is not something unknown in Scotland. We could put him on probation with a community service order and, in brackets, tell him not to go to football matches".

If that is so, it makes a nonsense of a requirement for flexibility. If an order is made under Clauses 1 and 2 of this particular Bill the court is not only not under any duty to give an opinion as to time or dates, but is not empowered to. I shall he interested to get the reaction of any other noble Lord, if there should be one, or, in any event, the reaction of the Government on this matter once again. I beg to move.

6.46 p.m.


My Lords, it would be fair to say, as the noble Earl has just said, that we did discuss this matter fairly fully at Committee stage. The principle underlying the noble Earl's Amendment relates to the rôle of the courts and lies equally behind the next Amendment standing in the noble Earl's name. The remarks which I make now also apply to the next Amendment, so I do not propose to speak to it in detail.

I have much sympathy with the noble Earl's intentions and, as he was just saying, there is not a great deal between us although we disagree as to the court's responsibility at a very certain and fundamental point. Certainly the Government want community service to work effectively. However, it is the Government's contention that to amend the Bill as the noble Earl seeks, to write into the Bill additional powers for the courts, would produce arrangements that simply would not work. The noble Earl should be reassured by the experience of the pilot schemes that are operating at present where there is already ample evidence of fruitful co-operation between the courts and the community service organisers in the social work departments through informal contact at various stages of the process. The formal provision which the noble Earl proposes would, I believe, he a straitjacket to the new schemes; and I should like now to outline the main grounds that the Government have for opposing the noble Earl on this and the subsequent Amendment.

As I explained at Committee stage, it is not part of the normal role of the courts to become involved in the details of implementing a sentence which they pass. At our earlier discussions the noble Earl said that if he did not know the nature of the work which the offender was to carry out, he would not make a community service order. I am glad to say that this has not been the experience with sheriffs making probation orders with a community service requirement under the pilot schemes. The pilot schemes are being run on lines set out in the Bill; that is to say, the responsibility for making the arrangements as to when the work is carried out and what sort of work is done rests with the social work departments. Not only are the sheriffs happy to make orders under this arrangement, but the majority of the orders made so far have been the outcome of an initiative by the sheriff.

My Lords, I state the obvious when I say that there is a great pressure of work on our sheriff courts, in particular in the urban areas. Detailed discussions would be necessary before an order could contain a specification as to when the work should and could be done and before the court could lay down what work should and could be done. In addition to the extra burden of work on the courts there is no doubt in my mind that the system proposed in this Amendment and the following one would prove too rigid to be workable in the great majority of cases.

Perhaps I may give an example. A court orders an offender to work on a countryside conservation scheme being organised by a local amenity group. The project is completed faster than expected. There is no more work to do and the offender, through no fault of his own, has not completed his hours. Under the Bill as it stands the supervising officer would seek an alternative placement. Under the Amendment it would be necessary to refer the case back to court under Clause 5(1) for the court to revoke the order and make a new one with a new specific requirement to do such and such a task. This would be a cumbersome arrangement to deal with what would be a frequent type of occurrence.

Similar difficulties could arise in other situations. The grant to a particular project might be cut and the project come to a premature end or even fail to get off the ground. A change might occur in the evening on which a particular youth club meets to which an offender had been assigned. Bad weather might prevent work from being carried out on an outside project for a number of Saturdays in a row. Equipment essential to a particular project might not arrive in time to allow for a start. Where an offender is working with a group of volunteers insufficient volunteers may turn up to permit work to go ahead.

It is essential in the type of case which I have described that the supervising officer be able to take the quickest possible action to find a new placement for the offender if the original placement falls through. This will mean in practice telephoning round a number of agencies and using the goodwill which the supervising officer will have built up by personal contact to secure a new placement. If the case has to be referred back to court, then there will be delays, extra work for the court and for the supervising officer, and the offender himself may find it hard to regain a sense of commitment to finishing off his number of hours' service. These are to my mind very strong reasons indeed for rejecting this Amendment and the one which will follow.

I stressed before and I repeat again that the court has the power to make a recommendation as to when the work should be done and what sort of work it should ideally he. This is obviously right and quite within the court's traditional role. It was suggested at Committee stage that the social workers will suit themselves when fixing when the work is to be done and that they will wish to avoid working on Saturdays, for example. That was suggested as a possibility. I rebut this on two grounds. First, it would he quite wrong to assume that the supervising officer would ignore any such expression of view by the court as to the timing and nature of the work. The supervising officers who are currently working under the pilot schemes are very much aware of the need to maintain good relations with the sheriffs in their area and have shown great enthusiasm and dedication in their work. The fact that a majority of orders made under the pilot schemes have been initiated by the sheriffs themselves indicates that a relationship of trust has been established, and I expect this to continue as community service becomes more widely available.

Secondly, the supervising officer will obviously not be able personally to oversee each single offender carrying out each single task for every single hour of the order, although he will of course maintain fairly close oversight of the work in general. Immediate oversight will be in the hands of an officer or member of one of the many agencies providing jobs. Many of these will be volunteer members of volunteer bodies and work may well be more readily available at weekends rather than on weekdays.

Although courts should not, I believe, become involved in the details of individual community service orders they should have a say in the way in which community service works in their area. In each of the areas where community service is available under the pilot schemes, an advisory committee has been established which usually comprises representatives of the courts, social work departments, local trade union organisations and others including some of the work-providing agencies. On these committees the sheriffs have the opportunity to make clear their views what type of work should be made available and when it should be carried out. They are thus in a position to influence the pattern of community service in their area. The extent to which they use community service and the manner in which they do so will clearly reflect the degree of their satisfaction with the scheme. The committees also give the sheriffs a forum in which they can express any reservations about the way in which social work departments have implemented earlier sentences. Additionally, of course, there are many informal contacts between the sheriffs and the community service organisers when views can be exchanged on the operation of the scheme in general and on particular placements.

I should like to conclude by saying that the Government could not accept this Amendment or the following one because they are based on misconceptions about the relationship between courts and the community service organisers and about the way in which work placements are to be provided. They would lead to extra work for the courts at a time when they are already under pressure. They could have a demoralising effect on the offender if the case has to be referred back to court every time a change in arrangement is called for. But, above all, because they are, in the Government's view, wrong in principle and impracticable.

6.58 p.m.


My Lords, may I support my noble friend's Amendment. I should like to speak to the two Amendments. I feel strongly on this because my estate has suffered from vandalism by young people. The noble Lord, Lord Kirkhill, said that the Amendment would make things too rigid. Surely the sheriff should have some discretion in stating what work the offender should do. Supposing a young man set fire to a haystack—perhaps that is not a good example—I can see no reason why the sheriff or judge could not direct, providing that it was in the haymaking season, that the offender should be sent haymaking. If the offender wrecked a dance hall, I see no reason why he should not do his hours of work when dance halls are open. It has been my experience that a lot of young people who do damage do not realise the inconvenience that they cause. I do not favour the work being entirely at the discretion of the officers.

To go back to this question of rigidity again, the noble Lord, Lord Kirkhill, said that if the Amendment were accepted and the sheriff or the judge says: "The offender should do certain work" and the work was completed early the matter would have to go back to the court. But surely it could be at the discretion of the officers to find other work. Of course, the sheriff or judge ought to have some say in what work these young persons should do.

Baroness DAVID

My Lords, I do not know whether it is very rash for somebody who has made community service orders in England to speak about them in Scotland. But I should like to speak against the Amendment for the reasons which my noble friend Lord Kirkhill has given, and chiefly because it is totally impracticable. I do not think that it would work. I think that if the community service order stretches over a number of weeks, jobs will change, finish and other factors can interfere. I cannot say I have felt any worry about leaving the decision to the people who have to work it. They are trained to do that and one does have the opportunity, before and after, of discussing how the whole thing has worked. One can bring influence to bear, and obviously from what the noble Lord, Lord Kirkhill, has said, this is going to happen in Scotland too. I think it will be making it very difficult for those who have to arrange this work if this Amendment is carried.


My Lords, I suppose it is 2-all at the moment. I wonder whether the noble Baroness has actually read the wording of my second Amendment—

Baroness DAVID

I have.


—because what it does not do is to specify that in fact the offender shall be designated to one job—if I may say so, the noble Lord, Lord Kirkhill, fell into the same trap—and when the job comes to an end there is nothing more that can be done. All my Amendment says is that: the court shall have regard to the desirability of relating the work to the nature of the offence". That gives the greatest possible discretion to the court and to the social work department. I fully agree with the noble Baroness and with the noble Lord, Lord Kirkhill, that there must be a coming together of minds so far as the court, the offender and the social work department are concerned, because unless they all combine, I think that these orders are going to be worse than useless.

What I had in mind, to go back to the example I used in Committee, is the sort of idea which has been tried out in America with some success. I should like to quote an example of something which I believe happened in the West of England. If a young man behaves disgracefully then it is stipulated—not by the court, because I agree that the power does not exist there—perhaps by the local officers that he works among spastic children or deprived children, or works in a hospital. That is something which is not a job and I am told—and indeed I have heard this through my contacts with SACRO and its contacts with the English organisation—that a lot of young people have been very much helped by this continuous exposure, if I may use the phrase, to something like this kind of work.

There is no question in my mind of a sheriff or a magistrate of a district court in Scotland (because this Bill applies to them too) saying, "You will go and make this bit of motorway", and then the work is finished and, if it is in Scotland, the noble Lord, Lord Kirkhill, goes along and opens it and we all drive along it. That would not happen at all, as I see it. As I see this, it would be a partnership as between the court and the social work department. Obviously there would be a remand, and the court would make up its mind as to what to do only at the end of the period after the fullest consultation.

All I am seeking to write into the Bill is that in certain instances, which would be by no means universal and probably infrequent, if a court felt the community service order could be improved by stipulating some time or date or by relating the work to the nature of the offence, that could become part of the order. That is all. I really think that some of those who oppose this suggestion perhaps may not have paid sufficient attention to how people comport themselves in court. This is not going to be some judge, red in tooth and claw, condemning someone to hours in some penal colony. This is just one more effort to help the court in an otherwise excellent measure of reform. I think the cleavage between the Government and me is complete, as I said before; and I want to test the opinion of the House.

7.5 p.m.

On Question, Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 38; Not-Contents, 35.

Alexander of Tunis, E. Denham, L. [Teller.] Massereene and Ferrard, V.
Amory, V. Falkland, V. Morris, L.
Balerno, L. Ferrers, E. O'Hagan, L. [Teller.]
Belstead, L. Gainford, L. Orr-Ewing, L.
Bolton, L. Gisborough, L. Rankeillour, L.
Bradford, E. Greenway, L. Sharples, B.
Brougham and Vaux, L. Harvey of Tasburgh, L. Somers, L.
Carrington, L. Kimberley, E. Strathclyde, L.
Clitheroe, L. Kinnoull, E. Strathcona and Mount Royal, L.
Colwyn, L. Lauderdale, E. Tweeddale, M.
Cork and Orrery, E. Long, V. Vickers, B.
Croft, L. Lucas of Chilworth, L. Ward of North Tyneside, B.
de Clifford, L. Mansfield, E.
Aylestone, L. Henderson, L. Pitt of Hampstead, L.
Bacon, B. Janner, L. Ponsonby of Shulbrede, L.
Blyton, L. Kirkhill, L. Rhodes, L.
Boston of Faversham, L. Leonard, L. Segal, L.
Castle, L. Llewelyn-Davies of Hastoe, B. Simon, V.
David, B. Longford, E. Stewart of Alvechurch, B.
Davies of Leek, L. Lovell-Davis, L. Stone, L.
Elwyn-Jones, L. (L. Chancellor.) McCluskey, L. Strabolgi, L. [Teller.]
Gaitskell, B. Mishcon, L. Wells-Pestell, L. [Teller.]
Glenamara, L. Parry, L. White, B.
Gregson, L. Peart, L. (L. Privy Seal.) Willis, L.
Hale, L. Phillips, B.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

7.13 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: My Lords, the noble Lord, Lord Kirkhill, has spoken against this Amendment, although I have not as yet spoken in favour of it. Whether that is the kiss of death, or whether it is more likely to succeed, I do not know. But I should have thought, in view of the way in which the House came to its decision a few moments ago, that it might be an idea if I said nothing more, except that I think this is a thoroughly commendable, well-drafted Amendment and then sit down, and the Government accept it as such without prejudice to anything they may do in the future. My Lords, I beg to move.


My Lords, in view of the result of the vote on the noble Earl's first Amendment, the Government will of course now cede the second Amendment. But I should point out to the noble Earl that, in the Government's view, it is technically defective.

7.14 p.m.

The Earl of MANSFIELD moved Amendment No. 3: 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: My Lords, this, too, is a matter which was debated last week in your Lordships' House, but I anticipate that we are here in slightly calmer waters, if I may so put it, because over the weekend—if I am not giving away what, when I was at the Bar used to be called robing room secrets—I had a most agreeable letter from the noble Lord, Lord Kirkhill, in which he said, in effect, that there may be some faint merit in this Amendment and, in the event, I think that the Government are prepared to accept it.

Speaking seriously, I was very much gratified by the support which I received from the noble Baroness, Lady Wootton, on the last occasion. In any matter of penal reform, it is essential to have full knowledge on the part of all those who take an interest in these matters, and I do not just mean the laity. It is essential that the Government should publish reports and various statistics and data, as and when they get them, and, generally speaking, make them available. I am glad to say that I believe the Government now share that view, at least in part. My Lords, I beg to move.


My Lords, in the debate at Committee stage I resisted this Amendment because I considered it unnecessary. But I undertook to consult further with my ministerial colleagues and, as the noble Earl has just said, I communicated further with him to indicate that the Government would be willing to accept his Amendment. I should just like to say, quite briefly, that the Government have from the outset intended that reports should be made available on a regular basis about the working of the community service orders scheme, and I assure noble Lords that the Government are no less anxious than anyone else to know how the orders are being used in practice, and to what effect.

The Government will be publishing information of a statistical kind in the annual report Criminal Statistics: Scotland. We shall also be publishing a fuller narrative description in the annual report of the Social Work Services Group. In addition, we are carrying out a research project in some depth into the operation of the present pilot schemes. This is the monitoring exercise to which I referred at Committee stage. However, noble Lords, and indeed noble Baronesses, expressed considerable concern at Committee stage about the need for the Judiciary to know about the working of community service orders and, in an attempt to be helpful, I am willing to accept the noble Earl's Amendment.