LORDS AMENDMENT (Hansard, 25 July 1978)

§ Lord KIRKHILL
My Lords, I beg to move that this House doth not insist on their Amendment No.1, to which the Commons have disagreed for the Reason numbered 2. The Government consider this Amendment undesirable in principle and believe that it would have most undesirable consequences in practice for the effective operation of community service by offenders in Scotland, the principle of which has been widely supported in your Lordships' House, in the other place, and among those with an interest in penal policy in Scotland.
The principal reasons for objecting to the Amendment are practical ones. I was particularly appreciative of the intervention at Report stage by the noble Baroness, Lady David, who spoke with great conviction from her own personal experience as a magistrate who has imposed community service orders under the legislation in force in England and Wales. She described the Amendment as "totally impracticable."
What the court would never be in a position to know, or find out, with any 801 certainty at all is whether work would continue to be available on the set day or at the set time right through to the point, up to a year later, when the offender is working off the last hour of his sentence. If for any reason work ceases to be available at the right times or, for that matter, if the offender through no fault of his own is no longer able to work at those times, it would be necessary, under the Amendment, for the case to come back to the court at the request of the offender or the supervising officer under Clause 5(1).
The court has a number of options open to it under this clause, but it cannot simply vary the times specified in the order as the Bill had no such provision in it. It would be necessary, therefore, for the court to use its powers under Section 5(1)(d) to revoke the order and to sentence the offender again for the original offence. This is a highly cumbersome and most unsatisfactory procedure. It would add even further to the work of the courts and the community service organisers and could have a most damaging effect on the morale of the offender who would find himself in a most uncertain position through no fault of his own.
I have stated before in your Lordships' House, and I say it again now, that the court does have the power to express a view as to how a sentence should be carried out. As I have also indicated before to your Lordships, I am quite convinced that the community service organisers will do all that they can to fall in with such an expression of the court's wishes. There are many ways in which courts can influence the social workers, and vice versa, informally and formally. Such mutual influence is most likely to be beneficial when it is based on genuine mutual trust, and that will not, I submit, be achieved under this Amendment.
I can assure your Lordships that the Government will continue to stress the need for the fullest co-operation between courts and community service organisers in order to ensure that the wishes of the courts are met to the fullest extent possible. I am sure that Scotland needs this Bill which is throughly workable. I trust, therefore, that your Lordships will not press the Amendment.

Lord CAMPBELL of CROY
My Lords, we are grateful to the noble Lord, Lord Kirkhill, for having explained why the Government, when the Amendment went to another place, still decided not to change their minds. Very briefly, I should like to comment on this Amendment, and it would be convenient if I referred also to the other Amendment because both are in the same terms.
First, I should like to say that I am speaking in place of my noble friend Lord Mansfield who has hitherto been dealing with this Bill, although I have been associated with him. My noble friend regrets that he cannot be here this afternoon. May I remind your Lordships that he is singularly well qualified to deal with this subject, practising as he does as a barrister at the English Bar—incidentally, following in the footsteps of the first Earl of Mansfield—and also being familiar with Scots law and procedure, since from time to time he sits on the bench of his local district court. There are very few people, if any, in your Lordships' House who are so familiar with law and procedure on both sides of the Border.
I think that all concerned have given a welcome in principle to this Bill. We are also glad that the Government have accepted certain Amendments, both in another place and also in your Lordships' House. As the noble Lord knows, on two or three occasions at Question Time I have suggested that a Bill of this kind should be introduced for Scotland. This was when we were discussing football hooliganism, because a system for dealing with it has been in operation in England for about five years and we believe that it has been successful. Circumstances are different in Scotland, but we feel sure that we can benefit North of the Border from a Bill of this kind.
We regret that the Government did not see fit to accept both this and the following Amendment. The purpose was to ensure that the alternative of community service was not treated as if it were not a punishment. I think that it can bring another benefit to Scotland, because the prisons in Scotland are overfull. There is a higher proportion of persons in prison 803 in Scotland than in England and Wales, and it will be beneficial if that prison population can be reduced. At the same time, we do not want persons who are before a court to feel that they are simply getting off if they are given a community service order.
The object of the Amendment which was moved and pressed by my noble friend at an earlier stage was to ensure that the court would have some say in how the community service was to be carried out. If I may give a very simple example, if it was a football hooligan who was before the court it would be very satisfactory, appropriate and salutary if the community service were to be carried out on Saturday afternoons so that he was not able to attend football matches. That would have been the kind of thing which the court would have been able to arrange under my noble friend's Amendments. The Government have raised objections to this and have not accepted it, but I do hope that the Government will none the less keep under special observation the way in which this Bill is carried out when it is enacted. There may well be cases where this Bill, if it is not carried out in the way in which I think we in this House all hope it will be, may fall into disrepute, and hooligans or vandals may simply think that they are getting away with it.
At an earlier stage, the noble Lord indicated that there were advisory committees which had been set up in different parts of Scotland. He did not indicate that the sheriffs sat on those committees, but he did indicate that they sometimes attended. I hope the Government will do all they can to ensure that the judiciary in Scotland are able to keep in contact with the social work departments of the local authorities who will have the task of carrying out the community service obligations under this Bill; I hope that the sheriffs will keep in touch with those committees. I know that this may be patchy; there may be some parts of Scotland where there is close liaison between the judiciary and the social work departments and others concerned. I hope the Government will keep this under close observation.

§ Lord KIRKHILL
My Lords, I should say, for the record, that so far as the pilot schemes themselves are concerned, at 804 this stage some sheriffs have joined the advisory committees; others are meeting informally on a monthly basis with those who are involved.

Lord CAMPBELL of CROY
My Lords I am grateful to the noble Lord for adding that clarification to what he said at the earlier stage. I am sure my noble friend Lord Mansfield will be glad to have that additional information. In accepting that another place has rejected these two Amendments, I would only say on behalf of my noble friend and myself that we hope that the action which is taken when this Bill is enacted will be kept under special observation, and, should it be necessary for improvements to be made, that the Government of the day will come forward with any further necessary legislation.