HL Deb 20 February 1997 vol 578 cc863-94

8.22 p.m.

House again in Committee on Clause 31.

The Deputy Chairman of Committees (Baroness Serota)

In calling Amendment No. 84, I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 85.

The Earl of Mar and Kellie moved Amendment No. 84:

Page 21, line 42, leave out from ("order") to end of line 43.

The noble Earl said: This amendment, my noble friend's Amendment No. 89 and my Amendment No. 96, are all aimed at removing the youth curfew order from the list of community alternatives available to the court when a fine remains unpaid. I believe that a curfew order may be appropriate for certain offenders as a first attempt at sentencing, but I find it unlikely to be appropriate in many cases where the problem is inability or unwillingness to pay a fine.

It will be the case that the offender was initially judged to be suitable for a fine and not for a curfew order, on the basis of both his circumstances and the nature of the offences. I persist in believing that a curfew order, where the only supervision will be by electronic monitoring, has limited application. That limited application is for willing and generally law-abiding offenders who will accept the monitoring and have a suitable lifestyle. If the curfew order was to be based on a human monitoring system with regular contact, I can see that having wider application.

At worst, electronically tagged offenders may be seen as being branded, and that is a punishment which we gave up a long time ago. That will do little to improve the circumstances and prospects of the offender. Inability or unwillingness to pay is a symptom of a chaotic lifestyle and a lack of self-esteem. These features need to be worked on if there is to be a chance of any behavioural change. I hope that the Committee will see the merits of these amendments. I beg to move.

Lord McIntosh of Haringey

I have been sceptical about electronic tagging on a number of occasions in this House, the first being after the 1989 experiment. We have not had much opportunity to debate the more recent experiment. It has always seemed to me that the pilot schemes have shown not so much that electronic tagging is a failure, but that it is—at least in the context of a pilot scheme—enormously expensive. Therefore, my initial reaction was to oppose the extension of curfew and tagging orders for fine defaulters, which is the subject of Amendment No. 84, and for low-level offenders, who are the subject of Amendment No. 96.

But I am not so sure. On reflection I believe that much of the problem with the pilot schemes was specifically that they were pilot schemes. There was difficulty in persuading magistrates to give those sentences; there were too few cases which were eligible for those sentences; and the whole of the on-cost of the development of the tagging systems, which must be a considerable amount of capital expenditure, was being loaded on to the pilot schemes that we have seen in action.

I do not want to see any alternative to custody abandoned too readily. It seems to me, therefore, that the effect of extending the range of offences, including fine default as well as low-level offences, which could be eligible for tagging might overcome some of the financial difficulties and could be justified.

I appreciate the arguments about the problem of a tagging device which is difficult to conceal. I do not see why such a device could not be devised which is easier to conceal. I do not believe that the equivalent of being put in the stocks is part of the objective of electronic tagging. I would rather continue with tagging experiments and extend their range in order that the capital costs can be amortised over a larger number of cases and then see whether at the end it is an acceptable alternative. Those of us who are keen on alternatives to custody cannot lightly turn down any of the alternatives that are offered to us.

Baroness Blatch

The curfew order provides an ideal way of restricting the liberty of an offender but without the need for him to be removed from the community by committal to prison. The potential benefit of curfews in the context of fine default is that they provide a way of restricting liberty comparable in many ways to imprisonment, and which can be strictly enforced. Imprisonment must remain available as the ultimate sanction against those who can pay the fines imposed upon them by the courts but who will not pay. However, we do not wish to see fine defaulters committed to prison unless there is absolutely no alternative. The provisions of this clause will give courts practical additional alternatives to imprisonment, which should ensure that fines are enforced effectively with the minimal use of imprisonment.

Turning to the amendment to Clause 33, the courts need to have suitable penalties available to them to deal with the cases that appear before them. Magistrates have told us that they need alternative penalties to be made available to them to deal with persistent petty offenders, where a fine is the obvious penalty but the offender's means, because of outstanding fines, make it impractical to impose a further fine at a level which reflects the seriousness of the offence. It is our intention to provide the court with a range of penalties to enable the court to sentence in a way that may better reflect both the seriousness of the offence and the circumstances of the offender.

The flexibility of the curfew order makes it a useful alternative penalty for persistent petty offenders who are unable to pay a fine commensurate with the seriousness of the offence. Such cases are extremely varied. The curfew order gives the court the flexibility to restrict the offender's liberty during periods that relate directly to offending patterns, for example, imposing an order to remain at home on Saturday afternoons on a football hooligan. Furthermore, it is possible to have a very short order: the minimum is two hours a day for one day. It is also possible to have longer and therefore more restrictive orders to deal with those who have been convicted of more serious offences.

This Bill provides the courts with a range of sentencing options to deal with the fine defaulter and the persistent petty offender. The curfew order is only one option within this range. It is a matter for the court to decide which penalty to impose in a particular case having considered all the circumstances of the offender and the offence. Because using the curfew order as an alternative to imprisonment for fine defaulters, and as a penalty for less serious offences is a new extension of its use, the Bill provides for it to be piloted. This will allow a full evaluation of the operation of these powers in practice to be made, and any refinements considered before they are introduced nationally.

I welcome what the noble Lord, Lord McIntosh, said and the fact that he is prepared to keep an open mind on this. I have kept closely in touch with those involved in the early pilot schemes and this pilot scheme on curfew orders. I have met people who have been "curfewed" and those administering the scheme. The results so far are impressive. Despite the unforgiving and comprehensive nature of the supervision, only 18 per cent. have had their curfew orders revoked for breaches of their order, for re-offending during the currency of the order, for offences predating the order or for breaching bail conditions set separately. An impressive 82 per cent. have completed their curfew orders without termination by the courts for breach or for further offending. This compares favourably with other community sentences despite the inescapable and comprehensive nature of the supervision.

The equipment is working well and we believe that the early signs are encouraging. The monitoring staff in all areas are carrying out their jobs to a very high standard. The cost of an average curfew order with electronic monitoring is estimated at less than that of an average probation order although slightly more than a community service order. It is a good deal less than the cost of imprisonment.

It is important that we keep an open mind on this for some of the reasons given by the noble Lord, Lord McIntosh, who referred to the way in which magistrates have had to get used to this as a disposal. Magistrates are growing in confidence as they use the order.

Perhaps I may pick up the noble Earl, Lord Mar and Kellie, on one point which, because of his experience, I suspect was a slip of the tongue. If it is established by the court that somebody is unable to pay—we are not talking about somebody who can pay but will not pay, but about somebody who is unable to pay—the court would remit the fine either in part or in whole. Nobody in this category is unable to pay. I repeat that if inability is established, the courts have the power to remit the fine in part or in whole.

I believe that curfew orders are an effective alternative to imprisonment. I hope that we shall all keep an open mind on this, like the noble Lord, Lord McIntosh, and allow the pilot schemes to go forward.

8.30 p.m.

The Earl of Mar and Kellie

Perhaps I may ask the Minister a question about the pilot schemes that have already taken place. I believe that two types of monitoring were piloted: human contact by a curfew officer and the electronic variety. Can a curfew order take either form or is it restricted solely to electronic tagging?

Baroness Blatch

Perhaps I may make a distinction between what we are going to pilot for fine defaulters and the way in which the curfew order pilot schemes are running at the moment. The existing curfew orders are dispensed in three parts of the country—Berkshire, Norfolk and Manchester. The courts could combine any of the community service orders with a curfew order. Indeed, we should like the courts to make better and more imaginative use of that because we believe that they have not yet realised the breadth of the disposal. A curfew order can confine somebody to a particular place. Another part of the Probation Service, through probation orders or community service orders, could work with the person concerned at the same time.

As I understand it, for fine defaulters it will only be a case of imposing a curfew order. That is an alternative to imprisoning somebody for, say, seven days. On average, a male fine defaulter is sent to prison for seven days; the average for a female fine defaulter is only five days. A curfew order is a narrowly focused restriction of liberty and, for the purposes of the pilot, would not be combined with other community service orders. However, as I have said, this is a pilot study and lessons will no doubt be learned from it.

The Earl of Mar -and Kellie

I am grateful to the Minister but I am still concerned about "stand-alone" curfew orders. I have almost no problem with curfew orders being linked to some other form of supervision. However, I got the impression that this is restricted to electronic tagging and that it is not a case of curfew officers visiting or telephoning the "curfewed person"—I am not quite certain of the correct word for someone who is subject to a curfew.

I am concerned about those who will have to wear the device, and particularly about women. Presumably, the device is attached to the arm or the ankle; male dress is appropriate for that. I wonder whether the noble Baroness can help me on that point.

Baroness Blatch

I know what the noble Earl is concerned about, but first I must say at once that we are talking about people who wilfully will not pay a fine. We are talking about cases where a court has established that somebody has the ability to pay but will not do so. We need to accept where we are coming from on this disposal.

I turn secondly to the case of females. It is far better that a young mother or somebody with family commitments should wear an electronic tag and be at home with the family, cooking and caring for the children than be sent to prison. The same applies to fathers. They may continue to go to work, and will be subject to the curfew only in periods outside their working hours. That is how electronic tagging curfew orders actually work. That is better than them being incarcerated in prison for short terms, dislocating the family and perhaps even causing the children to be taken into care.

There are benefits in this, but if somebody is wilfully not paying a fine and has been found culpable by a court, the consequence is that their freedom will be restricted and they will have to wear a tag. I have seen the tags and I suggest that the noble Earl might like to visit one of the companies, such as Geographics or Securicor, because some of his fears may then be allayed.

The Earl of Mar and Kellie

For a moment I thought that the Minister was going to ask me to wear one!

Obviously, I shall seek to withdraw my amendment, but before doing so I should say that I share everybody's desire for a search for a number of community-based sentences. In some ways, the Minister's alternative was on a scale of awfulness, but I agree that going to gaol is worse than wearing a tag. I hope that the devices will be developed so as to be as discreet as possible. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 85 to 87 not moved.]

Lord Williams of Mostyn moved Amendment No. 88:

Page 22, line 27, leave out from ("things") to end of line 28.

The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 90. Were they to be accepted, their effect would be to provide that if there were a breach of a community service or curfew order imposed for fine default, in considering that breach the court would be obliged to take into account whether or not part of the order had been successfully completed. At present the provisions governing curfew and community service orders stipulate that on a breach the court shall take into account whether part of the order has been successfully completed. That seems sensible and just since if an offender has been sentenced to 100 hours community service and has totally failed to comply or co-operate he should, in sense, reason and justice, suffer a more severe penalty for a breach than someone who perhaps has completed 90 hours but not the remaining 10.

The unfortunate consequence of Clause 31 is that that provision shall not apply in the case of a breach of an order imposed for default of fine payment. If the courts are not supposed to take into account the partial completion of orders it means that for a breach they must pass the same penalty on an offender who has completed most of his community service as that imposed on an offender who has carried out none of it. That seems inappropriate and unjust. At the moment there is perhaps a degree of inconsistency. Clause 31(13) enables an offender to "buy" himself out of part of an order by paying a pro-rata amount of the fine. Therefore, these amendments are intended to adjust the scheme, which by and large we support, to give the courts greater flexibility.

I listened carefully to what the Minister said in answer to the last amendment. She spoke of the curfew order being comparable with imprisonment and an effective alternative. I agree with both descriptions. But if both descriptions are right on a fine default in the context of a breach of community service or curfew order, surely it must be right for the court to take into account whether or not part of the order has been successfully completed.

8.45 p.m.

Baroness Blatch

I hope that I can provide the noble Lord, Lord Williams, with an explanation. The primary purpose of all methods of fine enforcement is to make the offender pay the fine or other financial penalty imposed upon him by the court. At present fine defaulters can reduce the period of imprisonment imposed on them by paying off the fine. Similarly, under the Bill as it stands a person who is sentenced to a community service or curfew order for default can reduce the term of that order by paying off the fine. We do not accept the premise that offenders should be able to elect to "work off' part of their fine by completing part of a community service or curfew order. If an offender fails to comply with a community penalty imposed as a punishment for defaulting on a fine the fine remains outstanding in full. That is a point of principle. An offender should not have the freedom to choose a package of measures acceptable to him from among a range of penalties available, which would be the practical effect of the amendments. The court decides the appropriate penalty. If the offender does not comply with an order of the court, then the court has a range of options open to it to punish that breach.

Periods of imprisonment for fine default relate to the amount of the unpaid fine. We believe that this should continue to be the case. If the length of imprisonment were reduced by partial compliance with a community service or curfew order it would reward the offender by reducing his prison term imposed for fine default despite the fact that he had not paid off any of his fine. This would subvert the intention of the court in imposing the fine. Serving the community penalty in full will discharge the financial penalty in full. But, short of total compliance with the community penalty, the only way to reduce the term of imprisonment which may be imposed by the court is to pay part or all of the outstanding fine.

There are practical considerations to be taken into account as well as matters of principle. We do not wish to encourage partial compliance, particularly given that these orders will be relatively short term. Our proposal is clear and perfectly logical. If an offender is given a community order for fine default he must comply fully, pay off the fine or go to prison for the period appropriate to the amount of the unpaid fine. I hope that the amendment will not be pressed.

Lord Williams of Mostyn

I hear the explanation of the Minister but there is no intellectual consistency or internal coherence about it. The Minister contends for the principle that the offender shall not have the choice. But the offender will already have paid a penalty by serving out, in many cases in substantial part, the community service or curfew order which the Minister rightly described as comparable with imprisonment. Why is it that if the offender cannot choose, Clause 31(13) allows precisely that choice? As I indicated a moment or two ago, an offender can "buy" himself out of the rest of the order by paying the pro rata amount of the fine. There is no consistency here at all. It is mulish insistence—I do not direct my remark to the Minister but to a mulish government—on non-flexibility in part of the Bill whereas the rest of it aims to provide a flexible scheme of workable alternatives available to a court. I am not at all convinced by the Government's stubbornness. I stress that my remark is not directed at the Minister personally, because she always deals with my questions with the utmost courtesy and care. This is inflexibility in a scheme designed to be flexible and to provide a wider pallet of alternatives to the court. On this occasion I shall not test the opinion of the Committee, since all of my noble friends have gone into the night and I, almost alone, linger here. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 89 and 90 not moved.]

The Earl of Mar and Kellie moved Amendment No. 90A:

Page 23, line 36, leave out subsection (13).

The noble Earl said: Amendment No. 90A and the associated amendment, Amendment No. 91, have the purpose of removing from the Bill the opportunity of a fine defaulter to buy his or her way out of a community service order or curfew order which has been imposed after a default. Subsection (13) suggests that the offender can hand money to the community service staff or curfew operating staff and be released from the scheme. I would have thought that it should at least be specified that the money should be paid to the court house, as would the original fine, and notification subsequently sent to the community service organiser or the monitoring staff.

I am against this opportunity in principle. The community service scheme gives serious undertakings to do work for other agencies and bodies. The evaporation and sudden disappearance of the workforce would be quite inappropriate because the tasks undertaken would have to be real work that needed to be done. I suspect that Amendment No. 91 may contain a workable compromise. I am sure that that will be explained to the Committee.

The case against being able to buy oneself out of a curfew order is weaker. This type of order is focused wholly on the individual and his or her whereabouts and so early termination will not have the same effect as it would have with a community service order. I beg to move.

Lord McIntosh of Haringey

I thank the noble Earl for referring to my amendment as a workable compromise. That is certainly what it is intended to be. I hope that the Government take the same view. This is always a difficult balance. The balance is between the kind of flexibility that the Government propose, which has the advantage that the paying off of a fine properly discharges the disposal that has been awarded because it has not already been paid off, and the costs of implementing community service orders and curfew orders. The fewer the number of people who have to do it for this reason the better for all concerned. But the problem that the noble Earl rightly recognises in his amendment is the administration of community service orders. Work has to be found for these people. It must be organised, supervised, booked and paid for. Administrative arrangements must be made. Indeed, the community service order contract has some sort of commercial benefit even if it is not expressed in that way. I can imagine that it could be extremely difficult if an unknown number of people turn up for a programme of community service which has been carefully worked out and hand over the sum and the supervisor, the work and all the materials and organisation go to waste.

We propose not to make any change on curfew orders but to make a change on community service orders, saying that, using the provisions of Clause 31, offenders can buy off a certain amount but they cannot buy off more than half the sentence unless they do so at the time when the obligations of the community service order are first spelt out. I hope that that justifies the phrase "workable compromise" and commends itself to the Government.

Lord Hylton

I should like to support Amendment No. 91 and at the same time ask the noble Baroness whether she would be kind enough to look at the drafting of the last four lines of page 23 of the Bill. One would think that they could be more elegantly expressed.

The Earl of Balfour

I wonder whether this particular clause covers the position where somebody pays reparations for the damage done. May I use an example. Somebody is drunk and smashes the plate glass window of a shop. He agrees with the court to pay for the replacement of that window and at the same time is involved with a fine. As I understand it, he has to pay off the repair bill before his fine is cleared. I feel that does not quite come into the provisions of this clause if, say, he has paid for the repairs and then he is very dilatory over paying the fine.

Baroness Blatch

May I start by giving an absolute assurance to the noble Lord that I will always look at the wording and, if it is possible to make it more elegant without compromising the accuracy of it, I will persuade counsel to agree to do that. I have to tell him at the same time that counsel are not easily persuadable in these matters and I never find legalese elegant at all, but I will do what I can.

In answer to my noble friend Lord Balfour, in the particular example he gave of somebody getting drunk and smashing a shop window, even if that person does offer to pay for the damage, nevertheless he has committed another offence and I am not sure quite what the courts would think about that. I am assuming that he is already paying the fine one way or another. Therefore it is open to him to continue to go to court to present his circumstances to the court and for the court to determine whether easy payments can be considered or whether there should be some other way of paying the fine because at the end of the day—and that was going to be my starting point in responding to this amendment—the key principle is to get the person to pay the fine. That is why we find it difficult to accept the amendment.

If Amendment No. 90A were agreed, a fine defaulter would have no incentive to pay off the fine imposed upon him once a community service or curfew order had been imposed. The defaulter would still be required to complete the whole of the community service or curfew order imposed upon him regardless of how much of his fine he had paid. If the court decides that a fine is an appropriate way of punishing an offender, then the outcome we wish to see is that he pays that fine in full. It may be that the imposition of a community service order, a curfew order, or even a custodial sentence, is required to persuade him to do so but we do not want merely to replace the fine with a community penalty. We must therefore not remove incentives for payment.

Although different, Amendment No. 91 is also fraught for similar reasons. Under this amendment the fine defaulter would have an incentive to pay off up to half of his fine because his community service order would be reduced proportionately. However, if the amendment were accepted, not only would there be no incentive for him to pay off more than half of the fine, but he would not be allowed to do so because of the limit imposed by this amendment. That is inconsistent and indeed illogical, particularly as these restrictions would not apply to curfew orders imposed in the same circumstances. If a fine defaulter has the means to pay off the majority of his fine and is prepared to do so, we wish to continue to encourage him to pay the fine and not to prevent him from doing so.

The noble Earl, Lord Mar and Kellie, referred to the issue of to whom payment should be made. The Bill provides for the fine to be paid to an authorised person. In the light of the comments made by the noble Earl, we would want to explore in the pilots whether this should include anyone other than court staff.

The Earl of Mar and Kellie

I am very grateful for that final comment because the precise wording "any person authorised to receive it" struck me as being very vague. Having been a community service supervisor, about the last thing of all the things one had to deal with was working out how many hours of community service someone could buy themselves out of which, in the midst of getting everything organised, was not easy.

I am also grateful to the noble Earl, Lord Balfour, for raising the subject of what I am going to end up calling "compensation order defaulters". I have to ask the noble Baroness, first: do you have compensation orders in England?

Baroness Blatch

Yes, we do. Could I say to my noble friend that my understanding is that compensation orders must be paid before a fine. That is important.

The Earl of Mar and Kellie

Having established that we have compensation orders in England, does a fine defaulter include a compensation order defaulter?

Baroness Blatch

The provisions of the Bill will apply to the enforcement of financial penalties, which includes compensation orders.

The Earl of Mar and Kellie

Thank you very much. I think I have debated this one far enough. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 91 not moved.]

Baroness Blatch moved Amendment No. 91A:

Page 24, line 6, leave out from ("instrument") to ("House") in line 7 and insert ("; but no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each").

The noble Baroness said: Clause 31(14) contains a power to amend, by order, the minimum and maximum hours of community service or days of curfew order which can be imposed on fine defaulters under the provision in that clause. Clause 31(15) provides for such an order to be subject to a negative resolution. The Select Committee on the scrutiny of delegated powers recommended that the negative resolution procedure would be appropriate for orders where the default period is to be decreased, but that the affirmative resolution procedure would be appropriate if the default period were to be increased.

We are happy to accept the recommendation of the committee but, to avoid unnecessary complexity, we propose to make all orders made under this section subject to the affirmative resolution procedure, whether they increase or decrease the period. This is what is proposed in the amendments tabled by the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn. I am happy to agree with their amendments in principle.

However, as I have already indicated privately to the noble Lord, Lord McIntosh of Haringey, I am advised by lawyers that the drafting is not quite right. I take no credit whatever but I understand that counsel's version of these amendments is rather more elegant and accurate. I beg to move.

9 p.m.

Lord McIntosh of Haringey

I have no objection to being told that the Government amendments are more elegant. That is par for the course. But I do object to the Minister sneaking in and getting her amendment higher up the Marshalled List than mine. That is supposed to be the province of the Opposition. If there is any more of this, I shall start to introduce paving amendments.

On Question, amendment agreed to.

[Amendments Nos. 92 and 93 not moved.]

Clause 31, as amended, agreed to.

[Amendment No. 94 not moved.]

Clause 32 agreed to.

Clause 33 [Persistent petty offenders]:

[Amendments Nos. 95 to 97 not moved.]

Lord Williams of Mostyn moved Amendment No. 98:

Page 24, line 39, after ("apply") insert ("and instead the following paragraph shall apply— (a) the reference in section 14(1A)(a) of the 1973 Act to 40 hours shall have effect as if it were a reference to 20 hours and the reference to 240 hours shall have effect as if it were a reference to 40 hours;".").

The noble Lord said: I shall speak also to Amendment No. 99. These amendments provide that CSOs and curfew orders imposed on low level offenders should be for shorter periods than when they are imposed for more serious offences. The present legislation provides that CSOs and curfew orders can be made only where an offence passes a certain level of seriousness. As I understand the Government's aim in Clause 33, it is to provide courts with alternative non-financial penalties, as the Minister indicated earlier, where the offence is a minor one which would not currently be considered serious enough for a community sentence but where the offender's circumstances make a fine inappropriate. That, I must confess, is a sensible aim which therefore deserves support.

We are concerned that there should be sufficient flexibility for the sentencing court for the lower level offender, which is why we propose, as is clear on the face of the amendments, that there should be a lower threshold to which the court may address its mind. I beg to move.

Baroness Blatch

Our intention in making community penalties available to the court for use in place of a fine for persistent petty offenders is to provide magistrates with the flexibility to be able to deal appropriately with the cases that appear before them, taking into account the seriousness of the offence and the circumstances of the offender. To give such flexibility on the one hand while constraining the amount of community service which may be imposed to a narrow range of only 20 hours limits the power of the courts unnecessarily and unhelpfully. Magistrates may wish to impose a curfew order for a period of more than two months in certain cases. For example, if the offender is employed a curfew order limited to the weekend only may be the appropriate penalty.

The minimum of 20 and maximum of 240 hours and a curfew order of up to six months will provide sentencers with considerable flexibility. If the court is to take proper account of the wide variety of persistent petty offending and be able to pass a sentence that reflects this variety, then the penalties available need to have as much flexibility as the fine. It is a matter for the court to decide the appropriate penalty in individual cases. It is a matter for Parliament to provide the court with sufficient options to enable it to do so.

I return to two points. One is the importance to the courts of flexibility. The other is to enable them to reflect the lower end of the sentence, which I know is the concern of the noble Lord, Lord Williams of Mostyn, and also to recognise the seriousness and level of persistency. We believe that reducing the upper limit would tie the hands of the courts in this matter.

Lord Williams of Mostyn

I believe that the Minister and I both desire the same objective. We both desire flexibility. As the Minister of State in another place said, courts need flexibility to be able to impose appropriate sentences. The amendments are designed to offer the courts precisely those opportunities, whether in terms of hours or months served. It is difficult to understand how an "appropriate sentence", to use the words of the Minister of State in another place, can include passing more severe sentences for lesser offences than some of those passed in cases which are more serious. This is again an attempt to improve the Bill, because the spirit in which the Minister approaches it is the same as the spirit in which we approach it. I hope that the Minister will be able at least to consider the points that we have sought to put forward briefly. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 99 not moved.]

Clause 33 agreed to.

Clause 34 [Abolition of certain consent etc. requirements]:

On Question, Whether Clause 34 shall stand part of the Bill?

The Earl of Mar and Kellie

I oppose the inclusion in the Bill of Clause 34. I can think of no useful reason for its inclusion. It seems to defy reality, although I accept that in its latter subsections it concedes that consent should be required for some additional conditions. Those are to do with consenting to forms of medical treatment, for mental health matters, or the treatment of addiction. I suspect that medical law requires that in any case.

My objection to the concept of the clause is that I can see no occasion when it would be efficient to impose a community sentence on an offender who has withheld his consent. I believe that to do so is unjust, as that probably constitutes agent provocateur action. The person would be liable to punishment for a breach of the order and of course re-punishment for the original offence.

But more critically, community sentences have a purpose. The CSO is used when it is believed that doing work for others for free is an appropriate disposal for the offender. A probation order, with any number of conditions, is imposed when a clear behaviour modification task is identified. That will, of course, involve considerable intrusive work by the probation supervisor, and requires not just the consent but the co-operation and motivation of the offender if it is to be effective.

The few conversations that I have had with magistrates in this House suggest that the clause is unworkable, if not redundant. I shall be interested to hear from the Minister how the powers contained in the clause will have any practical or beneficial use. I beg to move.

Lord McIntosh of Haringey

I am worried about the proposal to oppose Clause 34. I shall be interested to hear what the Minister says because the noble Earl makes a grave charge. He says that the clause is unnecessary and damaging—a phrase which I have heard previously from the Government Front Bench.

I am worried that perhaps we are being led astray by words rather than reality. In these circumstances, consent does not mean very much. If the alternative to consent to a non-custodial sentence is being put away in prison, that is Hobson's choice; it is not a real choice that is being offered. In those circumstances, enforced consent does not mean consent. Would we not do better to require that the offender should acknowledge the award of a period of community service rather than consent to it? In that way, we would not get into the difficulty identified by Mr. David Maclean in Committee in another place—that it would amount to the offender dictating the sentence to the court. That is not at issue, but when in this context we say, "consent" we do not mean consent in any free way.

Viscount Tenby

As a magistrate, I associate myself with the remarks made by the noble Lord, Lord McIntosh. I fully understand the arguments advanced by the noble Earl and those who support him. It can be psychologically advantageous to get an offender to agree to a course of action being proposed in the sentencing exercise—theoretically, at least. But my experience is that such a formula repeated time after time has become something of a mechanical exercise alongside—dare one say it?—the use of the oath in court proceedings, which to a largely non-practising Christian part of the population becomes something of a farce. The phrase, "Do you consent to such an order being made?", used endlessly is, as the noble Lord, Lord McIntosh, said, preposterous. It is Hobson's choice and I agree with the noble Lord.

Lord Monson

I believe that there are at least three valuable aspects to Clause 34. First, with regard to people under the age of 16, information about their family circumstances and the impact of the order on those, and vice versa. Secondly, treatment for a mental condition. Thirdly, treatment for dependency on drugs and alcohol. I should have thought that all Members of the Committee would be greatly concerned to maximise the amount of effective treatment that can be provided.

Lord Thomas of Gresford

I support my noble friend Lord Mar and Kellie. In my experience, the sentencing process is such that frequently one can he faced with a defendant who has been found guilty or has pleaded guilty to an offence but who appears to be in a complete daze as to what exactly is going on. The effect of asking for his consent frequently produces a reaction from him which otherwise does not exist. It is a useful provision to be able to speak directly to a young person in particular and to require from him some undertaking—his consent—that he will obey the order that is being imposed. It breaks the barriers which lie between the sentencer and the individual. I do not consider that it is helpful to have a defendant before the court who remains mute throughout the whole of the proceedings. It is a useful provision to have.

Baroness Blatch

The courts are not required to secure the consent of an offender before passing a custodial sentence or even a fine. Therefore, it is nonsense that they should be required to do so before passing a community sentence. It gives the impression that an offender or, in the case of a child, a parent or guardian can dictate to the court what kind of punishment he or she receives simply by withholding consent. That seems anomalous to many sentencers, and the Government agree. It is quite wrong for the court to have to seek an offender's consent before it can even pass the sentence which it believes the case merits. The measure will end that position. It will help to maintain public confidence in sentencing decisions and allow the courts to exercise their authority with more confidence. There is a psychology involved here whereby the sentencer is meant to be sentencing but rather goes cap in hand to the offender and says, "Do you mind if we impose upon you 100 hours of community service?"

In any event, as the noble Lord, Lord McIntosh, and the noble Viscount, Lord Tenby, have said, the consent which an offender gives to a community sentence is not consent in the usual sense of the word. If an offender does not consent, the court may impose a custodial sentence. Consent given in such circumstances cannot be regarded as an offender entering into any sort of sentencing contract with the court and it is no guarantee of an offender's likely compliance with the order. Besides, it is already the case that one of the community sentence options available to the courts—the attendance sentence order—does not require the offender's consent. Therefore, I see no reason why the imposition of any community sentence should not be made consistent with general sentence procedures. The courts must be allowed to impose the sentence that they think appropriate.

However, we recognise that the inclusion of requirements in a supervision order for a young offender may have implications for his family. That is why in cases involving offenders under 16, Clause 34 includes a provision that the court must obtain and consider information about their family circumstances and the likely effect of the requirements on those circumstances before it imposes such a supervision order. Such requirements might include participating in specified activities, a night curfew order, or residing with a named individual. The need to take account of family circumstances is consistent with the provisions in Clause 40 concerning the imposition of curfew orders on young offenders, and should help to ensure that supervision orders are applied in appropriate cases.

The Government recognise that there are some circumstances where the court should continue to seek an offender's consent before imposing a probation order. We need to uphold the general principle that a person should not be compelled to undergo medical treatment. Clause 34 makes provision for that. Where the court is minded to impose a probation order which includes a mandatory requirement that the offender undergoes treatment for a mental condition, or for drug or alcohol dependency, it must first seek the offender's consent. This is not only desirable but practical—it is unlikely that a doctor would agree to provide treatment without consent having been given. Retaining consent will avoid the situation arising in which an order is made, cannot be carried out and then has to be brought back to the court to be varied. Those provisions strike a good balance. They will enable the courts to impose the sentence they think right while retaining the need for an offender's consent only where it is necessary to do so.

Courts will continue to have the option of calling for a pre-sentence report to inform their sentencing decision. In the light of last Thursday's debate, it is interesting that research findings recently published by the Home Office Research and Statistics Directorate has found that it is rare for the courts to impose a community sentence without seeing a pre-sentence report. Pre-sentence reports include an assessment of an offender's suitability for a particular community penalty. Where an offender is shown to be unsuitable for a community sentence, the courts will wish to consider other sentencing options.

The noble Lord, Lord McIntosh, raised the issue of acknowledgement of sentence. There is a statutory duty on the court to explain in ordinary language the purpose and effect of the community service order. That is to be found in Section 14(5) of the Powers of Criminal Courts Act 1973 so that the offender understands the sentence imposed upon him. In the Green Paper on sentencing, we emphasise the importance of more transparency in court. I have almost a personal fetish about sentences being dispensed in court in terms of hours, months, weeks or years. It seems to me that it is helpful not only to the offender to know what the sentence means but it is also helpful for the public. Very often the offender does not know what the sentence actually means before he meets representatives of the probation service who explain it to him.

9.15 p.m.

Lord McIntosh of Haringey

I spoke in favour of the retention of this clause in the Bill and against the proposition of the noble Earl, Lord Mar and Kellie. But I am worried by some of the Minister's replies. She acknowledges that you cannot order somebody to undergo medical treatment without his consent because the doctor would not agree to treat anybody unless he had agreed to the treatment.

But surely to some extent, that applies also to a community service order. You could not administer a community service order with people who had totally denied that it was appropriate for them to have such an order or who have failed to acknowledge—I come back to that word—that that was the sentence of the court.

I appreciate that there is no one answer for any single disposal and that circumstances must suit cases. But I am worried about taking away consent and not replacing it by anything more formal than an explanation of what it means.

Lord Thomas of Gresford

I must challenge the rhetoric of the offender dictating the sentence to the court. In my experience, that never happens. An offender is faced with a number of possible methods of disposal. One method of disposal would be a community-based sentence. If a court were minded to pass a community-based sentence, the reaction of the defendant and his family is not one of smug satisfaction but of gratitude that they have been allowed to escape a more serious future.

Whoever thought of the rhetorical phrase of the defendant dictating the sentence to the court cannot have been in a proper court and cannot begin to appreciate the dynamics of the situation. The sentencer who has the power to dispose of the individual before him, and the attitude of the defendant awaiting his fate, are completely opposite to the concept of dictating the sentence. I support my noble friend Lord Mar and Kellie.

The Earl of Mar and Kellie

I still wonder why the clause was put into the Bill. It creates nothing new. It changes a provision which has been operating. Whenever a probation officer, or in Scotland a criminal justice social worker, prepares a report for the court recommending probation with a condition such as community service, if he could not state that the subject of the report expresses his or her willingness to comply there would be no basis for making that recommendation.

I accept that the offender may not understand exactly what has been said to him or her in court when the community sentence was passed. But one of the first tasks at the beginning of a probation order is to serve the order and to go through what it says. It states that the court accepts that the offender committed the offences and on being informed by the court that a probation order will be made the defendant gives his consent. I believe that the probation order document will have to be changed. I do not have such a form with me; nor do I expect the Minister to have one. Perhaps we can resolve the issue by letter afterwards. But not to have consent renders the offender liable to further punishment. I find that difficult.

However, I have listened to Members of the Committee. A number agreed with me. Some disagreed in varying degrees. However, I shall not press the issue.

Clause 34 agreed to.

Clause 35 [Offenders]:

Lord Thomas of Gresford moved Amendment No. 99A:

Page 26, line 13, at end insert— ("( ) Where a court orders a person to be disqualified from holding or obtaining a driving licence under this section, the degree of punishment inflicted by the order, or by the combination of the order and any other order or orders made in respect of the offence, shall he such as in the opinion of the court are commensurate with the seriousness of the offence.").

The noble Lord said: The amendment deals with the proportionality of the sentence of disqualification from holding or obtaining a driving licence under the proposed section. I shall deal with the desirability of driving disqualifications in the course of discussion on the next amendment.

However, in sentences which involve custody, community sentences and fines, provisions in legislation require proportionality; that is, that the degree of punishment inflicted should be appropriate to the seriousness of the offence. For example, Section 1 of the Criminal Justice Act 1991 provides that the main criterion for passing a custodial sentence is that, the offence … was so serious that only such a sentence can be justified".

It is the formula which judges will always pronounce at the beginning of sentencing a person to a term of imprisonment. Under Section 2 of the same Act, the length of the custodial sentence must normally be, commensurate with the seriousness of the offence".

Section 6 provides that the restrictions on liberty imposed by community sentences must be commensurate with the seriousness of the offence. Section 18 of the same Act provides that the amount of the fine shall be such as in the opinion of the court reflects the seriousness of the offence.

If, in relation to each of those methods of disposal (punishment) the court is enjoined to consider before passing such sentences the proportionality of the sentence—what is appropriate to the seriousness of the offence—why should that not happen with driving disqualification in non-motoring cases?

Both the Magistrates' Association and the Justices' Clerks' Society have expressed concern that the use of driving disqualification in non-motoring cases could involve a degree of punishment that is disproportionate to the offence. The most obvious example is that of a person who relies on his motor vehicle in order to get to work or to carry out his particular livelihood. The result to him of a driving disqualification could be the loss of many thousands of pounds—a financial penalty which, were it to be imposed as a fine, would he regarded as appropriate to an offence of extreme seriousness.

The Magistrates' Association has urged statutory guidance, stipulating that disqualification should be used only for offences which are serious enough to qualify for a community sentence. The purpose of this amendment is to introduce that standard approach to sentencing into the proposed new order on driving disqualification for non-motoring offences. I beg to move.

The Earl of Mar and Kellie

I support my noble friend's amendment. I am concerned about the indiscriminate use of this new community sentence. I am not against new community sentences as such, nor necessarily against this particular one. However, I hope that it will be piloted and evaluated properly.

The scheme allows for the use of a driving ban for non-motoring offences. Sentencers will need to he very clear about the effect that such a scheme will have. If, for example, it would lead to a loss of livelihood, it should be applied only in extreme circumstances—if indeed there are circumstances in which the punishment should be that the offender should lose his job. As that clearly does happen when someone is imprisoned, this driving ban would be appropriate for an imprisonable offence for someone who needs the car at work. However, in the case of the recreational driver, the driving ban would have substantially less effect and could be used for much less serious offences.

My main concern about the new sentences relates to the effects of non-compliance. The prospect of the driving ban being ignored and yet another uninsured driver being on the road suggests that a full social background report will be required prior to the passing of this type of sentence. This amendment would probably ensure that.

Baroness Blatch

I do not disagree in principle with the intention behind the amendment. However, I believe that the amendment itself is unnecessary. The general principles of sentencing that apply to all sentences will ensure that these aims are met without a specific statutory requirement.

The fundamental principle of sentencing is that the punishment should fit the crime. In determining what sentence to impose for an offence, the judge or magistrate must consider the nature of the offence, its seriousness or otherwise and any aggravating or mitigating circumstances. The sentence must also always be appropriate to the particular circumstances of the offender as well as the circumstances of the offence.

It follows therefore that, in deciding to impose disqualification from driving for an offence and in deciding how long the period of disqualification will be, a court will consider the degree of punishment involved and will decide on a sentence that it believes is appropriate to the seriousness of the offence. The new subsection which this amendment would insert is unnecessary.

The noble Lord, Lord Thomas of Gresford, referred to the seriousness of the offence in relation to disqualification. It may be that some guidance for sentencers will be required in imposing disqualification for non-driving offences and it will be open to the Magistrates' Association and the senior judiciary to develop such guidance. That is not a matter for the Government but we certainly believe that, as this would be a new disposal for the courts in this context, guidance would indeed be appropriate.

Again there is nothing between us. I believe that what I said is commensurate with what is contained in the amendment. I shall read Hansard carefully following our deliberations today but, from where I stand and from what I have seen of the amendment, I believe that it is unnecessary.

9.30 p.m.

Lord Hylton

As this is a completely new type of penalty which in theory could be applied to a wide range of offences, it is important to have a provision such as that contained in the amendment on the face of the Bill so that those who have to apply this penalty can find all the information in one place.

Baroness Blatch

In order to make a disposal in court, a sentencer would need to have all the information in place before deciding what the sentence should be. We come back to the pre-sentence reports. The court would have all the information that was presented to it in the course of the hearing of the case and could call for whatever reports it felt appropriate, such as reports from medical people or probation officers. Only with all the information which it believed it needed in order to make a disposal could the court then apply a sentence.

We are adding this sentence for the court's disposal in a new context. As the noble Lord knows, until now it has been driving-related or car-related offences for which this disposal has been used. We are simply widening that base. The principle of courts making penalties fit the crime is not compromised at all by what is proposed.

Lord Thomas of Gresford

What a pleasure it is that for once there is nothing between the Minister and myself on the principles of this matter. I cannot accept that the proposals contained in the amendment are unnecessary. If they are unnecessary in this context, why is it necessary to have statutory requirements which govern the discretion of the court sentencing a person to custody, community service or a fine? Why is it necessary that in those instances sentencers should have the issue of what is appropriate and what is proportionate statutorily thrust upon their minds?

As the noble Lord said in his intervention, the fact that this is a new kind of sentence which will be imposed by magistrates all over the country, as well as by Crown Courts, is an important reason why a statutory provision such as that contained in my amendment should be included.

I should like to reflect on what has been said. This is not the time to seek the opinion of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 35 shall stand part of the Bill?

Lord Thomas of Gresford

In opposing the clause I am likely to part company with the Minister on the principle of disqualification from driving for non-motoring offences. What is so surprising about this provision is that it was introduced without any consultation. It is such an infliction upon people's freedom that one would have thought that the widest consultation would have taken place before it was introduced. The Magistrates' Association has expressed serious reservations about the wisdom of the measure and the Justices' Clerks' Society has opposed it. Those are people very much concerned with the nitty-gritty of the criminal justice system. They see it at grassroots level.

My first criticism of the proposal to take away a person's driving licence for something which is completely unrelated to driving is that it will inhibit the offender's rehabilitation. In the course of the discussions that have taken place on the Bill, time and again—no doubt ad nauseam—I have stressed the importance of rehabilitation of the offender, so that further offending is prevented. One of the most important features of rehabilitation is that a person gets a job. In today's society that very often requires the ability to get to work in the absence of public transport or the ability to get a job which is driver-related. That is my first objection; namely, that it will affect the rehabilitation of the offender.

Secondly, I have some sympathy for the police who are required to enforce disqualifications of this nature. Bearing in mind that disqualification of this kind has nothing whatsoever to do with the particular offender's manner of driving, the temptation upon that offender to continue driving will be very considerable. As things are at present, it is difficult enough for the police to enforce driving bans, but it is unlikely that anybody who is disqualified under these provisions will ever get caught unless he is involved in some accident or is stopped for some road traffic offence. The police will have very considerable problems with the large number of disqualifications which are likely to arise if this measure is introduced.

My third difficulty concerns the problems of the person driving without a licence who is thereby uninsured. It is extremely difficult for a person injured in a road traffic accident to obtain compensation from an uninsured driver. There are procedures through the Motor Insurers' Bureau but they are lengthy and outside the ordinary system. I am sure the Committee is well aware of the numerous injustices that occur because a person has been injured by someone who is uninsured by reason of being disqualified.

The Justices' Clerks' Society has said: Disqualification has been based on issues of road safety and there is therefore no merit whatsoever in extending its use to cases where no motor vehicle was used to commit or facilitate the offence. Punishment must fit the crime. There are real dangers of this particular punishment being disproportionate to the offending, with the cost of resultant appeals. In addition, enforcement difficulties which will undermine the sentence cannot be underestimated". A person who is found guilty of dangerous or careless driving or who has been breathalysed understands perfectly well why he or she is being disqualified as a result of the motoring offence that has been committed. It is related to that particular offence and, no doubt, if not acceptable is understandable by the defendant who is disqualified in that particular way. But the persons who appear before the court, generally speaking, for offences which have nothing to do with driving are bound to feel resentment and anger if a sentence which has no connection with their offending is imposed upon them.

Strong criticisms of the Bill were made by Sir Ivan Lawrence in another place. He highlighted a number of objections as he saw the matter. First of all, his view as a Conservative chairman of the Home Affairs Committee was that the measure offends the fundamental principle of sentencing that the punishment should fit the crime. Secondly, he said that the courts were unhappy about disqualification sentences for the simple reason that a car is necessary in many cases for getting to work, and disqualifying someone as a punishment puts a great deal more pressure on him to commit more crimes. If we are trying to rehabilitate the offender, the least that can be done is to get him to work. For all those reasons, I oppose the addition of this clause to the Bill.

Lord Carlisle of Bucklow

Before the noble Lord, Lord Thomas, completes his speech—he may say that it is already complete—I invite him to expand on one comment that he made. He said that one of the most surprising things about this clause was that it had been introduced without any consultation with any of the parties involved in the Bill. Can he tell me which parts of the Bill did involve prior consultation? With whom did those consultations take place? Why is it surprising that this clause was not the basis of any consultation with anybody?

Lord Thomas of Gresford

I am grateful to the noble Lord, Lord Carlisle, for his intervention. Since the noble Lord sits on the other side of the Chamber, it would be churlish of me to suggest that these proposals were rushed through with a view to securing the re-election of his party. But that seems to me to be the reason why there has been no consultation. These proposals throughout the Bill have been brought forward to gain publicity for electoral purposes. It is not the first time I have said that; I have repeatedly said it in relation to the provisions of the Bill.

Lord McIntosh of Haringey

Before I comment in more detail on the objections of the noble Lord, Lord Thomas of Gresford, perhaps I can ask whether line 9, page 26 of the Bill should read, disqualified from holding or obtaining a driving licence", rather than, disqualified for holding or obtaining a driving licence". If I am right and there is a mistake, I immediately give the credit to my noble friend Lord Williams of Mostyn who pointed it out to me.

I find this issue to be genuinely difficult. On the one hand one wants to see the billiard shark, when caught, suffer by being made to dwell in a dungeon cell in a spot that is always barred and all the rest of it, including making him play with elliptical billiard balls. But, at the same time, driving a car or a vehicle is a more widespread activity.

There has been debate in the columns of the press as to whether driving is a privilege, a right or whatever, and whether it is proper to take that away. I tend to the view that the objections—for example, from the motoring organisations—do not have much validity. There are difficulties about a driving disqualification. The obvious one is that it is of differing importance to different people and the magistrates will not sensibly disqualify someone who needs a car to get to work, to take children to school or some other essential purpose. I cannot believe that magistrates would disqualify someone under such circumstances.

There are some people, like myself, to whom a car is only a thing with a wheel on each corner and one to hold on to. I have no interest whatever in driving and disqualification would not inflict on me any psychological damage. But some people are passionate about their cars and it makes a great deal of difference as to whether they are allowed to drive.

Then there is the question that is not raised in the clause on the relationship of such a disqualification to other driving offences. Will such a disqualification count on the tariff of driving offences? Does it mean that a subsequent disqualification for a driving offence will be that much worse? The Minister should tell us. I do not believe that has been thought out.

Having made those uncivil remarks, I am fundamentally in favour of searching for other forms of non-custodial sentence. I recognise that subsection (3) of the clause says that the sentence is on a trial basis and can be withdrawn at any time if it does not work. On that basis, if the specific questions can be answered, I would on balance be prepared to give it a fair wind.

9.45 p.m.

The Earl of Mar and Kellie

I wish to ask about the use of such penalties in rural areas. It strikes me that their use in such areas would impose an impossible burden. People who live in cities or large towns, where there is adequate public transport, could get by. Will one of the pilot projects be in a rural area?

Earl Attlee

I hesitate to speak on this matter because I have been somewhat overexposed recently, particularly with the noble Baroness the Minister. I support the principles of the Bill. I was sad that the Bill was comprehensively wrecked at an early stage of the Committee.

Lord Carlisle of Bucklow

It was not wrecked.

Earl Attlee

I feel that it was and I am sorry about the damage. However, this issue is of great concern to me for the reasons that have already been so ably set out by other noble Lords. I shall be particularly interested to hear how the Minister intends to justify the provision.

Lord Williams of Mostyn

I wish to raise a matter of detail in Clause 35(1). The court is given an extraordinarily wide power—ordering disqualification, for such period as it thinks fit". That is entirely different from the regime that sentencers and defendants know at the moment with regard to totting up and the speeder; and for driving with excess alcohol there is a minimum disqualification of one year and for a second offence within 10 years a minimum disqualification of three years. There is some sense to that structure. By and large, it works well. It seems an extraordinarily wide power to be given to a court to be able to order disqualification, for such period as it thinks fit", without any other qualification.

Earl Russell

We can agree at the moment that driving is a privilege and not a right. I do not think we have yet reached the American situation where they seem to think that a driving licence is handed out with a birth certificate. We all accept that if we are given charge of a potentially lethal weapon—which a car is—we must expect the privilege of driving that weapon to be taken away if we do it unsafely. But it is quite another thing to propose taking it away for an offence entirely unrelated to the conduct of the motor vehicle. It is a little like telling one's children that if they do not go to bed, they cannot have any sweets tomorrow. It is all right if one knows every circumstance of the daily life, as one does in that situation, and can make sure that there is a fit between the two things. However, we do not have that kind of knowledge about people whom we are sentencing.

Why, among all the things they could do, have the Government fixed on withdrawing the right to drive a car rather than something else? Why not, for example, the right to ride a horse or a bicycle? There are many other things they could have done. They might think about why they have not withdrawn from people the right to wear spectacles. If they think about that, they might begin to see why I have such grave misgivings about this clause.

The point has already been made that many people without a car cannot work. If this punishment were inflicted, for example, on a taxi driver, or on the man who came at nine o'clock this morning to repair our dryer, it would be a penalty of instant dismissal from a job. There is nothing in the clause which shows any recognition of whether the punishment is particularly severe in a particular occupation. There is no recognition of the basic principle of Magna Carta that no man shall be punished so as to take away his living. That is a good principle and an important one. I rise to back it up because I believe that there is a vitally important social security angle to this clause which no one has touched on.

There are a great many places, as my noble friend Lord Mar and Kellie, has mentioned, where it is, regrettably, simply impossible to work without the aid of motor transport and, since the stagecoach is an unreliable method of transport at the best of times, one must expect these places to become more numerous. I hear of cases of this kind from places like South Moulton, the North Yorks Moors or Henley-in-Arden where, if the job is some distance away, people simply cannot work unless they can afford to run a car. So if one suffers that penalty in one of those places one is being deprived of the right to work.

During the debate on the Social Security Benefits Up-rating Order during the dinner break, all three Front Benches were in agreement that what we should be looking for are ways of helping people to come off benefit and back into work and that we need that not only to give people genuine freedom of choice, but also for the vitally important task of reducing the biggest single item in government spending. But here we have the Home Office undoing all the good that all three Front Benches were agreed in trying to achieve. It does not seem to make very much sense. It is piling up a much bigger bill for a government—it does not matter which in this case—to pay. I do not see why.

I ask the noble Lord, Lord McIntosh of Haringey, to consult his noble friend, the noble Baroness Lady Hollis of Heigham, and ask what she has to say about the costs of this clause. He may find that it is very similar to what I have just said. I entirely agree with the noble Lord, Lord McIntosh of Haringey, about the need to think of other non-custodial sentences. I have thought that for many years. We are seeing why that has not been done before. It is something which is badly needed but extremely difficult. The Home Office might have stopped to think about some of the difficulties before tabling this clause.

Lord Hacking

Perhaps I may intervene for just a moment. I have been able to listen to the entirety of this debate although I confess I have not been in the Chamber. I was disappointed by the speech of the noble Lord, Lord McIntosh, because I felt that insufficient connection was being made between the offence and the punishment. Having heard the whole of the debate, and in particular the speech of the noble Lord, Lord Thomas, I believe that this is an unfortunate clause. It has to be recorded—and I say this with great respect—that the fundamental opposition to this Bill in this Chamber has come from the noble Lords who sit on the Social Democrat Benches and that is most welcome.

Lord Carlisle of Bucklow

Having made a very brief intervention in the course of the speech of the noble Lord, Lord Thomas of Gresford, perhaps I may try to make a more serious intervention on Clause 35 as a whole. What is it intended to achieve? Of course, one appreciates that removing a driving licence is a serious matter for many people and the threat of it is a major one. But what is this particular clause intended to achieve?

As I understand it, it relates to the power to disqualify from driving someone who, according to subsection (2), is convicted of an offence under Clauses 1(2), 2(2), or 3(2) of the Bill. If I am right about that, what does that mean? Is it seriously to be said that if one is sentenced to life imprisonment, as Clause (1)(2) requires, say, for an offence of wounding with intent, that on top of being sentenced to life one should be then disqualified from driving for a certain period of years? And what is the purpose?

If you are sending someone to prison for a minimum of seven years for trading in drugs and we take the sort of case about which we were talking earlier—not the major trafficker, but the very small-time drug addict who buys and then feeds his own addiction by passing on some of his drugs to friends—what is the suggested additional threat? He probably does not drive. He has probably never driven. He is going to prison for seven years anyway. Are we to say to him, "Incidentally, when you come out, you cannot drive for 10 years?" What is the object of it? I question why the clause is in the Bill at all and whether it is anything more than merely gesture sentencing.

Lord Rodgers of Quarry Bank

I believe that I am the only noble Lord present who at one time had ministerial responsibility for driving licences. That is my reason for speaking on the subject of those who want to take them away.

I very much take the view on the clause which has been expressed on all sides of the Committee. I take also the point made earlier by the noble Lord, Lord Carlisle, about the absence of consultation on the clause not being exceptional to the Bill as a whole. What I think is exceptional—although not exclusively exceptional, if I may put it that way—is that the clause was introduced as a new clause at the tenth sitting of the House of Commons Committee on the Bill. It would be of great advantage to the Committee if the Minister could explain where the clause comes from. If the clause was not included in the Bill as drafted—the Bill was in preparation for some time—why was it suddenly inserted into the Bill at a late stage? What were the motives, incentives or circumstances which made it urgent on 10th December but not when the Bill was being drafted?

Proper questions have been asked—not only on these Benches but on all sides of the Committee—about the consequences of taking away driving licences. I have a feeling that none of those points was considered due to the hasty way in which these provisions were prepared and introduced so late in the day.

As has been revealed by this debate on clause stand part, the more one thinks about it, the more one sees increasing objections which do not appear to have been foreseen. Someone who has a car has it in the expectation of being able to drive it. They may have newly acquired the car and the driving licence for that purpose. If that person loses his or her driving licence, the car serves no purpose for them. If their licence has been removed for a substantial period, not only is there no point in having a car licensed and on the road; there is no point in having a car at all. There are some who may lose their driving licence for whom the obvious next step is to sell a car lately acquired at a penalty which would approximate to a further fine.

Whatever the Minister's reply—and whether or not my noble friend finds it acceptable—I hope that the noble Baroness will consider carefully what purpose the clause really serves. It seems to me not only to involve a loss of liberty and a loss of mobility but to have much wider consequences for those who need a car for work, and for the family as a whole.

If the Bill, including this clause, proposes the removal of a driving licence, why not take away the television licence? The principle is exactly the same. If there is no link between the offence and the penalty of driving disqualification, there is no reason why we should not find that in some future Bill the removal of television licences is proposed as a further penalty. These questions need to be looked at with great care.

I do not know what the Minister will say in reply or what my noble friend may have in mind. I say in parenthesis, even at this late hour, that I am struck by one peculiar aspect of our procedures. We consider amendments to a clause and then decide whether or not we want the clause in the first place. It is almost as though one has conducted the Committee stage on a Bill before the Second Reading debate. Of course, this is not a matter for the Minister, who will forgive me for occupying the time of the Committee, but it is interesting that we had a short debate on the amendment—there was only one amendment to this clause—because we had not had the debate on stand part that has revealed aspects of the clause hitherto hidden from us. As we have no other way of proceeding with our business, I believe that if this remains part of the Bill at Report some noble Lords will want to consider seriously ways of amending it.

10 p.m.

Lord McIntosh of Haringey

Perhaps I may quickly respond to the noble Lord's intervention on our procedures. Surely we do it the right way round. We try to get the best clause that we can and then decide whether or not it is good enough.

Baroness Blatch

If the noble Lord, Lord McIntosh, had not said that, I would have opened with that very point. It is extraordinary that one should oppose a clause standing part before there has been any attempt whatever to modify it. The whole point of coming to the end of discussions on a clause, whether or not there have been attempts to modify it, is that your Lordships can then decide whether or not it should stand part of the Bill.

The clause allows for the introduction of the provision on a pilot basis in courts specified by the Secretary of State. It is a punishment and another disposal which is available to the court. It would be dispensed as a punishment. Taking away the freedom to drive is already an effective penalty for a range of road traffic offences and other offences where a vehicle is involved—for example, theft of a car. We believe that disqualification from driving can usefully be used more widely and that its extended use will give the courts greater flexibility to deal with offenders in the most effective way. Disqualification from driving is not just a means of keeping bad drivers off the road. Noble Lords will know that it is not used only in this way. It can be an effective punishment because it denies the offender the freedom to drive. Thus, it restricts his liberty in the same way as a fine restricts his economic liberty and community sentences restrict his liberty to determine how to spend his time. Curfew orders and custodial sentences restrict liberty. This is just another way of restricting liberty.

I believe that the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle spoke about the effects of disqualification from driving. All of the effects that they have spoken about apply to those who lose their right to drive when this measure is used by the courts now. Lots of people come before the courts and are disqualified from driving. That will be a restriction on their liberty. Sometimes it will affect their livelihood and their families. It will almost certainly have an effect on their leisure activities—unlike the noble Lord, Lord McIntosh.

Very recently I spent a night with the police force in my own authority. I admit to my shame that I started off the evening, as many armchair critics do, by criticising the police for spending far too much time dealing with motoring offences and not enough time chasing criminals. Having spent the evening in a police car travelling along the roads of Cambridgeshire, my views made a complete U-turn, because I realised that criminals are out on the roads driving from one burglary to another. They commit an offence in one part of the country and then travel to another part to commit another offence. The police found that by gathering intelligence about people driving without number plates or without lights they could identify drug runners and so on.

Indeed in the course of that evening the police were able to apprehend a number of people because they were able to use all of the powers available to them under the Act. What impressed me more than anything else was that a lot of people up to no good were driving around in motor cars. If disqualification can be used as a punishment to keep some people off the road, then I believe that that would be a good thing.

While disqualification from driving would be particularly appropriate for offences in which a vehicle was used, it will be for the courts to decide whether or not to use the penalty in any particular case. In reaching this decision they will of course take into account the circumstances of the offence and of the offender. They will be able to use disqualification from driving, alone as a punishment for the offence or in combination with any other penalty as part of the punishment. Both the Crown Court and the magistrates' court already have a discretion to disqualify offenders from driving for quite a range of offences. They are experienced in weighing up the circumstances of each case where such discretion is available to them before deciding whether or not the penalty is appropriate.

The clause allows for the proposal to be introduced by way of pilots. We intend to pilot the provisions to ensure that they can be put to most effective use. The pilots will also help to identify whether any sentencing guidelines by the judiciary, such as those already produced by the Magistrates' Association, would be helpful. Extending the power to deprive criminals of the ability to drive whatever the offence will be an additional and powerful tool for the courts.

I take on board the point made by the noble Earl, Lord Mar and Kellie, when he referred to pilot schemes running in rural areas. We have not made decisions as to where pilot schemes will take place but the point that the noble Earl made is certainly one I shall take back to my right honourable friend.

Reference was made by the noble Lord, Lord Williams of Mostyn, to the phrase "such periods as he thinks fit." Again we go back to the fundamental principle of sentences in courts, and that is that courts will sentence as they think fit, which also includes and subsumes the appropriate sentence for the crime that is being considered by the court. I would also use that in relation to the point made by my noble friend Lord Carlisle. There is no question of gratuitously adding this to a sentence unless it is appropriate in the minds of the court to do so. My noble friend referred to life prisoners in Clause 35. It simply means that one cannot be disqualified from driving instead of receiving a mandatory or automatic life sentence. It can, however, be added for such a sentence if the court in its discretion thinks fit, and of course if it is appropriate, and that would be absolutely fundamental.

The noble Lord, Lord Williams of Mostyn, referred to Clause 35 being anomalous. The provision follows Section 44 of the Powers of Criminal Courts Act 1973 in providing no limitation for the length of the disqualification period for offenders who have used a vehicle in committing an offence. There is nothing anomalous about it in this respect. I am almost afraid to give the noble Lord, Lord McIntosh, this answer because I do not ever accept this as an explanation, but it is the explanation for using the word "for" rather than "from", which was discovered by his noble friend Lord Williams of Mostyn. I am told it is not a mistake. It follows the language of another Act of Parliament, in this case the Road Traffic Act 1988. I would invite noble Lords to look up Section 103(1).

Lord McIntosh of Haringey

Will the Minister introduce the amendment to the Road Traffic Act 1988 or shall I, because it is clearly wrong?

Baroness Blatch

What I was going to say to the noble Lord is that I never think it is the best explanation to give. It happens to be the explanation that I am offering at this moment but I am not sure that any government would find time in their parliamentary programme to allow the word "for" to be changed to "from" in primary legislation. That indeed is the explanation and I do not believe that the sky will fall in if we change the word "for" to "from" in this Bill, but I have no doubt counsel will have something to say to me on that score.

I have given an assurance that we will pilot these powers for driving disqualification to see the practical implications of allowing the courts to make what they will of them and of the impact that they have.

The noble Earl, Lord Russell, raised a number of important points. Since it will be for the courts to decide whether or not to disqualify from driving, taking account of the circumstances of the offence and of the offender, there is no reliable way of calculating the cost or indeed of identifying the implications of national roll-out in advance of the pilots. The noble Earl's amendment much later in the Bill—Amendment No. 109—impacts on the debate we have had this evening. It would prevent such pilots from being introduced. We should consequently be unable to calculate the resultant costs which he would like identified. In a sense, it is chicken and egg. We need the pilot schemes to identify costs. I should perhaps point out that a court will not impose disqualification from driving unless the court itself is satisfied that such a penalty is appropriate to the nature and the seriousness of the offence. Courts will consider the likely result of disqualification upon the offender, and will look at any implications for the offender. Employment, of course, would he one consideration put forward in mitigation.

The pilots will also identify any need to produce guidelines for the courts such as those produced in other circumstances by the Magistrates' Association. I was asked, why these provisions. I have to say that it is because it is another form of punishment. I suggest that for some people it will be an effective form of punishment, but it will be for the courts to make that decision. They will have to consider the impact on, perhaps, other members of the family—taking children to school, and the car is the only form of transport, especially in rural areas, and is essential for the family. Given that there will be pilot schemes, those are the type of things for which one would be looking in the course of the pilot schemes. I believe that Clause 35 should stand part of the Bill.

Lord Carlisle of Bucklow

I hope that I shall not be accused of being difficult, but I am concerned about what my noble friend the Minister has said about the clause. I share her view. I believe that disqualification for driving is a penalty. It is a penalty which has a considerable effect on many people. The power to prevent a person from using a car is not just a penalty, it discourages the person from doing anything that may lead him into that situation.

I hope that I am wrong, but quickly reading Clause 35, am I to understand that since subsection (1) starts: Subject to subsections (2) and (3) below", and subsection (2) below states: Where the person is convicted of an offence the sentence for which is fixed by law or falls to be imposed under section 1(2), 2(2), or 3(2) above the whole of the clause applies only—

Lord Williams of Mostyn

That is not right.

Lord Carlisle of Bucklow

I am glad to hear that I am wrong. I am not sure what is the purpose of the clause.

Lord Williams of Mostyn

To be helpful, the purpose of the clause—I shall be disqualified from this side—is that one needs to put one's eye to, "or instead of". I believe that that is the point of Clause 35(2).

Lord Carlisle of Bucklow

I am sorry, but I do not think that the noble Lord, Lord Williams, gets my point. Subject to subsection (2)(3) below implies that the clause relates only to those who are convicted of offences under Clause 1(2), 2(2) or 3(2) of the Bill.

Lord Williams of Mostyn

What the Minister is about to say is that you can have disqualification as a free-standing sentence except in the circumstances described and prescribed in Clauses 1(2), 2(2) and 3(2).

Lord Carlisle of Bucklow

I happily withdraw. I have had too good a dinner. I have got it the other way round. I could not believe that it was as mad as it appeared to be, but I still repeat my original view that I should like to know—if my noble friend the Minister will tell us—with whom any parts of the Bill were discussed before they were announced.

Lord McIntosh of Haringey

We do not need to wait for the election. My noble friend has clearly changed sides.

Baroness Blatch

I am glad that my noble friend is satisfied with the answers. I am deeply grateful to the noble Lord, Lord Williams of Mostyn. It has been a long day, and I am grateful for any help whatsoever at this time of the evening.

Lord Thomas of Gresford

Perhaps I may respond to some of the things that the Minister said. She paints an interesting picture of the roads around Cambridgeshire, filled with criminals driving in all directions. One cannot help but wonder what the Member of Parliament for Huntingdon is doing about that disgraceful situation on his patch.

Baroness Blatch

He is supporting this legislation.

Lord Thomas of Gresford

He is supporting legislation which quite clearly requires limited police resources to be used for the Minister to pursue criminals around his patch. That is taking things a little far.

The Government ought to think about the clause from scratch and start again. As my noble friend Lord Rodgers said, it was introduced as an amendment at a late stage; it did not form part of the structure of the original Bill; it is ill-thought out; it is ill-considered; and, as we have heard from the Minister, it is uncosted. No attempt has been made to discover how much the provisions will cost.

I addressed the Committee on proportionality in relation to another amendment, but I wish to return to the topic in order to consider the differences that are likely to arise, for example, between an offender who lives in a rural area and an offender in an urban area who commits the same type of offence: perhaps they commit it together. In the one case, disqualification from driving is a huge penalty. In the other, within the urban environment and where public transport is available, it is not such a great penalty. What will happen? Are people who live in rural areas to receive lesser sentences of disqualification than those who live in urban areas?

Let us compare someone who is holding down a job which requires a car either to carry out the job or to get to work with someone who works round the corner or who is unemployed. Let us suppose that together they commit the same offence. A disqualification on the one will be extremely hard, expensive and difficult to bear. The other may be able to shrug it off without any particular difficulties. All those disproportionate sentences between people who commit similar offences will undoubtedly cause considerable problems in the future.

The clause is opposed not by the motoring organisations—this is not a motoring matter—but by the Magistrates' Association and the Justices Clerks Society, which, I respectfully suggest, know better than the Home Office what it is like to try to deal with people who have been disqualified at the magistrates' court level where most of the offences are dealt with. In the face of their hostility and in the face of public hostility to the idea of disqualification for non-motoring offences, I urge the Government to think the matter through again before the Report stage.

The Earl of Balfour

I know that in cases of people living in rural areas the DSS gives them money to acquire a car. That must be borne in mind.

Baroness Blatch

When I addressed the amendment, I made the point that those are the kind of issues that the courts must take into account when passing any kind of sentence. Whether the offence was driving or motor related, the courts must consider those particular factors. We believe that the measure is effective to punish criminals. The noble Lord, Lord Thomas of Gresford, once again came to the defence of magistrates and judges using their discretion. It would be a matter for magistrates and judges to use their discretion in court and for the court to consider all the circumstances which relate to the offence and the offender. The circumstances described by the noble Lord, in which the disqualification from driving would be a disproportionate punishment, would be out of kilter with the fundamental principles which are operated by the courts. Judges and magistrates would dispense the punishment appropriately, taking into account the circumstances relating to the offence and the offender. Of course, it is to be piloted, and the pilot schemes will tell us whether it is as effective as we believe it will be.

Lord Monkswell

I listened to the debate, although I am sorry that I came in late and may not have heard the particular response to my question. Surely if you have a law-abiding person, he will abide by the disqualification. But it will have no impact on a criminal who pays no regard to the law.

Baroness Blatch

Nobody will be disqualified from driving under these provisions unless he is a person who has already disobeyed the law.

Clause 35 agreed to.

House resumed.

House adjourned at twenty-one minutes past ten o'clock.