§ 3.6 p.m.
§ Lord Bassam of Brighton
My Lords, I beg to move that this Bill now be read a second time.
The Criminal Justice and Court Services Bill is central to the Government's purpose of reducing crime and improving the protection of the public. It will help 1285 to create a criminal justice system that fights crime more effectively through the use of a tough and targeted approach to offending in the community as well as in custody. It illustrates our determination to modernise the criminal justice system from end to end with the establishment of a national probation service for England and Wales and the new children and family court advisory and support service.
For too long, community sentences have been regarded by offenders, courts and public alike as a soft and ineffective option. That is why the proposals in the Bill to strengthen the enforcement of community sentences are so important. We need to improve public confidence in the value of community sentences as integral parts of an effective response to crime.
As well as promoting a tough, targeted and effective approach to crime, a number of measures in the Bill focus on improving public protection, particularly for some of the most vulnerable in society such as children. In addition to the introduction of an integrated system for preventing unsuitable people, such as sex offenders, from working with children, the Bill also excludes all sex offenders convicted of offences subject to the Sex Offenders Act 1997 from the home detention curfew programme.
The Government have rightly focused many of their efforts to date on tackling crime committed by young people. The Bill builds on earlier youth justice reforms. It is absolutely essential that criminal and anti-social behaviour committed by young people is addressed firmly, effectively and, above all, early to divert them from a lifetime of crime. Measures in the Bill to improve parenting orders, the final warning scheme and to compel parents to address their children's truanting are all important parts of a wider youth justice and social exclusion strategy. We will not give up on these young people.
In developing all of these policies, we have been mindful of the need to balance the rights of those who suffer the effects of crime with those who commit them.
I should now like to outline some of the main themes and measures of the Bill. The need to improve the effectiveness of the criminal justice system is very much at the heart of this Bill. The establishment of an effective and focused probation service is central to this Government's determination to modernise the criminal justice system and to improve its ability to reduce crime through a range of measures. These include the consistent use of an evidence-based "what works" approach; more effective joint working; the development of local strategies to address local crime reduction priorities; and the efficient use of resources to provide the public with better value for money.
The Probation Service does an incredibly important job. Its staff take a dedicated and professional approach to this vital work and I trust that this House will join me in paying tribute to them. A prime example of the professionalism that characterises the Probation Service is the way in which the Association of Chief Officers of Probation (ACOP) commissioned its own 1286 research into the enforcement of community sentences. This research found that, for cases in March 1999, enforcement rates as a whole were simply not good enough, with the key indicator showing that only 44 per cent of those who broke the terms of their supervision were actually being breached.
ACOP has been working in close co-operation with the Home Office to improve enforcement rates. By April of this year, a second audit found that for cases dealt with in September 1999, 62 per cent of those who broke their orders or licences were breached. This is a welcome and significant improvement, but enforcement rates are still too low: the key performance indicator target is 90 per cent.
The restructuring of the Probation Service will improve both its efficiency and focus and will enable it to provide a better and more consistent service. This will be achieved through the establishment of the national probation service for England and Wales. This unified and centrally-driven service will comprise 42 local areas, matching police force boundaries. As well as improving its overall efficiency, this restructuring will enable the service to build on the best of past experience and to concentrate more effectively on its core tasks: the enforcement of sentences and public protection.
The restructuring will promote close working with police and other criminal justice agencies. New local boards will be more representative and will have a key role to play in working with others to develop effective local approaches to crime reduction.
The new service will also develop, adopt and disseminate evidence-based approaches to community punishment and public protection. At the moment, the Probation Service is a fragmented organisation with only limited accountability to central government and its local communities. This new structure will allow greater consistency and should, over time, force up standards. The new boards will be fully accountable for service delivery in their areas.
As a part of this restructuring, the aims of the national probation service will be clearly identified as: protecting the public; reducing reoffending; and the proper punishment of offenders in the community.
In order further to clarify the aim and focus of the Probation Service, the Bill will also rename probation, community service, and combination orders as, respectively, community rehabilitation, community punishment, and community punishment and rehabilitation orders. Although I understand the concerns that some may have about renaming orders, I firmly believe that the new names more accurately reflect and describe the purpose of these community sentences. I also believe that the new names are more understandable to a wider public. That can only improve confidence in community sentencing.
I am pleased that these proposals for the national probation service were largely welcomed by all sides in another place and I look forward to discussing them in more detail in Committee.
1287 As I mentioned earlier, the more effective enforcement of community sentences is a key aim of the Bill and, although great strides have been made recently to improve performance, more needs to be done if community sentences are to be regarded as truly effective and credible alternatives to custody.
It is absolutely essential to have timely and effective enforcement of community sentences. There should be no doubts about the consequences of non-compliance. That is why, under the new regime, where an offender over 18 is not immediately returned to court after the first unacceptable failure to comply with an order, there will be a duty on the Probation Service to issue a warning and then return him to court on the second unacceptable failure within any 12-month period, or within six months for a curfew order. If the offender is found to be in breach, other than in exceptional circumstances, he will be sentenced to up to three months' imprisonment, or longer if the original offence would have merited a longer term of imprisonment. This Bill sends a clear message that community sentences are not a soft option.
The establishment of the children and family court advisory and support service (CAFCASS) is designed to improve the service provided to children and families involved in family court proceedings. This new service will focus on the needs of children and families going through the court system by taking on the functions currently carried out by the Probation Service's family court welfare services, the guardian ad litem and the reporting officer service, and work with children undertaken by the office of the Official Solicitor.
The aim of this new service will be to put children first and to offer a fast, flexible and consistent service. The establishment of this separate service will also enable the new national probation service to concentrate on its core task of law enforcement.
I should like briefly to mention two other measures in the Bill which will improve the effectiveness of the criminal justice system. The first is the proposal to enable the police to have bulk access to driver licensing records for the purposes of road traffic enforcement. This is a relatively small measure, but it will significantly enhance the ability of police officers to carry out roadside checks to increase the speed at which they will be able to process accident and traffic offences. This will also result in increased convenience to the public, as in the vast majority of cases, motorists will no longer have to produce their driving licence at a police station as checks will be carried out on the spot. It will also offer the benefit of freeing up police resources that could be usefully deployed elsewhere.
Another such measure, but this time in a custodial context, is the proposal to abolish the separate sentence of detention in a young offender institution (DYOI) for 18 to 20 year-olds. I know that concerns have been expressed about this proposal, but I firmly believe that this separate sentence has become anachronistic and that its removal will enable the Prison Service to address more effectively the needs of younger and more vulnerable prisoners. The Prison 1288 Service will build on work carried out so far as to how the abolition of the sentence of DYOI can best be implemented. The aim will be to develop regimes for young adult offenders, not only for those in the 18 to 20 age group, but also for those in their early 20s.
Although post abolition those 18 to 20 year-olds given a custodial sentence will be sentenced to a term of imprisonment, this does not mean that they will be sent as a matter of course to what are currently adult prison establishments. Young offender institutions will continue to exist physically and will continue to provide constructive regimes specifically developed for younger offenders. Far from abandoning the 18 to 20 year-olds to fend for themselves, we have a positive commitment to develop programmes which better prepare them for release.
The abolition of the separate sentence also brings the important benefit of enabling young people to be located closer to home than they are at present, thus improving the maintenance of vital family ties and aiding eventual resettlement. A small, segregated estate of some 6,500 18 to 20 year-olds inevitably places limitations on the extent to which the Prison Service can pursue its aim of locating prisoners closer to home. This is particularly true for the 300 or so female young offenders held in the small women's estate.
As well as helping to ensure tougher and more consistent enforcement of community sentences, the Bill will also enable the Probation Service, the police and others to harness new and existing technologies in their efforts to reduce crime.
The proposals to introduce mandatory drug testing on charge in the police station, pre-sentence, as part of a community sentence, and on release from prison, represent an important step in our efforts to combat drug-related crime. When examining these proposals, it is essential to bear in mind the scale of the problem we are attempting to address and how they fit into the Government's wider drugs strategy.
A drug testing of arrestees research programme found that more than three out of five people arrested tested positive for an illegal drug. In some places the total was almost four out of five, with in some areas one-third testing positive for heroin and more than a quarter for cocaine. We know that between 50,000 and 60,000 problem drug misusers are arrested and prosecuted every year. Those in this group alone may each commit 150 crimes a year—roughly 7.5 million offences. This is the terrible scale and cost of drug-fuelled crime, and this is why as part of our wider strategy to combat drug misuse we are introducing drug testing at various stages of the criminal justice system.
These measures will help to identify drug-misusing offenders who need treatment, to monitor their progress and to deter further drug misuse. Drug testing will complement other programmes such as the drug treatment and testing order, which has been successfully piloted in three sites and is to be rolled out nationally from October; £60 million will be made 1289 available over the next two years to support the introduction of the order, which includes funding for the related treatment costs.
We are also investing £20 million over three years to ensure the spread of drug arrest referral schemes. Initial take-up indicates that 90 per cent of all custody suites in England and Wales will have arrest referral schemes by the end of the year.
Around £100 million has been earmarked from 1999–2002 to tackle drug misuse among prisoners. This includes the establishment of a basic treatment service in every prison and the creation of more than 50 rehabilitation programmes to which prisoners requiring more intensive interventions can be referred.
We are aware, however, that the new resources are exposing a shortage of capacity in drug treatment services. The Government are addressing this problem, and a national recruitment campaign for drug workers, funded by the confiscated assets fund, will result in nearly 700 drug workers being recruited and trained by next April. In addition, the Home Secretary announced on 8th June that consideration is being given to developing a new national treatment agency to oversee a pooled national treatment budget, bringing together money currently being spent on drug misuse treatment by the Department of Health and the Home Office.
The Government have listened carefully to concerns expressed about the application of these new drug-testing measures. They will be piloted and, together with all the relevant agencies, we shall be able to gauge their effectiveness and ensure that the right balance is struck between individual civil liberties and the right of other individuals and communities to be protected from drug-related crime.
As with drug testing, electronic monitoring is another technology that has already proven its worth in the fight against crime, with a successful completion rate of 90 per cent. Electronic monitoring is a valuable tool to improve public protection. As well as creating an exclusion order which will require an offender to stay away from certain places at certain times, and which could be particularly useful in cases of domestic violence and stalking, the Bill will allow for electronic monitoring of a range of community sentences and electronic monitoring of conditions of release on licence. These new uses of electronic monitoring will make compliance with community sentences far easier to monitor.
I should like to make it clear that these measures are directed solely at improving public protection. They do not make any prisoner eligible for release earlier than at present, nor do they change the basis on which the release decisions are made. Early release decisions will always involve careful and thorough risk assessment. It is absolute nonsense to criticise the electronic monitoring of people who are released from prison, where the only alternative is for them to be released without the added protection provided by electronic monitoring.
1290 I fully understand the concerns that have been expressed about the early release of serious sex offenders. Perhaps I may make the Government's position absolutely clear: we are amending the Bill to exclude all prisoners convicted of offences subject to the Sex Offenders Act 1997 from the current home detention curfew scheme. It is essential that all necessary steps are taken to protect the public, but we should not lose sight of the fact that with a 94 per cent completion rate, HDC has been a great success and has made an important contribution to the safe resettlement of many offenders.
The Government are totally committed to improving public protection, particularly the protection of children from those who may wish to harm them. The Bill builds on the Protection of Children Act 1999 to create an integrated system for preventing unsui table people, such as sex offenders, from working with children. This system will be backed up with a new criminal offence of applying for, or accepting, work with children while banned. In developing these proposals, once again we have been mindful of the need to balance the rights of individual civil liberties with the rights of others to be protected from abuse. As part of these proposals, a new review process for all of those banned is to be introduced.
Strengthening the protection of children from those who would wish to exploit them is at the heart of the Government's policy. That is why we set up the review of sex offences, which had increasing the protection of children as its central task. That review was not asked to look at the offences relating to pornography, or at the growth of the Internet as a medium for child pornography. I know that we all find this extremely worrying and we are concerned about the increase in the number of offences under the Protection of Children Act 1978. It is vital that the courts have the powers to deal appropriately with this vile trade which starts with child abuse.
That is why the Government welcomed proposals by the Opposition in another place to increase the penalties for various offences relating to child pornography. We need to ensure that the penalties available reflect the seriousness with which society regards these sorts of abhorrent offences.
I shall therefore be tabling amendments in Committee to increase the maximum penalty for simple possession of indecent images of children under 16 from six months' imprisonment, or a fine, or both, to a term not exceeding five years' imprisonment, or a fine, or both.
While possession itself is a serious crime, there can be no doubt that taking, making, distributing, showing and possession with a view to distribution are even more grave offences. To this effect, the Government will table amendments in Committee to increase the maximum sentence for these crimes from three years, or a fine, or both, to 10 years, or a fine, or both.
The Bill also builds on the range of youth justice reforms introduced by the Government over the past few years. As I mentioned earlier, it is vital to catch 1291 young offenders early to divert them from a life of crime. We have learnt from the use of a number of these measures and are keen to improve them.
Experience has shown that the effect of a reprimand or final warning can be significantly enhanced by delivering it as part of a restorative justice process involving the young offender, his or her parents and, where appropriate, the victim. We propose to remove the existing requirement for reprimands and final warnings to be delivered in a police station, in order to introduce greater flexibility, allowing reprimands and warnings to be given in the most appropriate and accessible locations instead.
Parenting orders provide an important new means of supporting parents in exercising proper responsibility for their children's behaviour—particularly where the child or young person has been convicted of an offence or where he or she is not attending school regularly. The Bill will extend the range of persons able to serve as a responsible officer under a parenting order to include local education authority staff working outside youth offending teams.
The Bill also increases the penalty for parents who fail to ensure that their child attends school regularly, raising the penalty to a fine of up to £2,500 with the risk of imprisonment for up to three months. This proposal is the result of consultation undertaken by the DfEE last year through the document Tackling Truancy Together. Responses to the consultation were largely supportive of the proposal to increase the penalty for school attendance offences.
As this measure attracted a degree of concern in another place, I should like to state clearly that the purpose is not to imprison parents who are already struggling, but it resolutely is about challenging the culture which tolerates the absence of children from school, and it reflects the serious impact that truancy can have on a child's future prospects in life. At the moment, the fine (level 3 on the standard scale; maximum £1,000) is in the same bracket as non-possession of a TV licence or vehicle road licence. That cannot be right.
The purpose of this measure is to compel parents to attend court or risk arrest, as courts will have the power to issue a warrant. Currently, 80 per cent of parents summonsed under school attendance offences fail to attend trial. If parents are required to attend courts, magistrates will have the opportunity to reinforce the seriousness of the offence. They will also be able to consider passing alternative sentences, such as community service orders and the new parenting orders. This measure will reinforce the message that every child has the right to education and every parent has the duty to ensure that his or her child is educated.
One last measure in the Bill that I should like to mention is the proposal that sentencing courts should be able to set the tariff in cases where young offenders under the age of 18 are sentenced to be detained during Her Majesty's pleasure as a result of committing murder. This measure brings our law into line with a key aspect of the judgment of the European Court of Human Rights in the case of Thompson and Venables.
1292 Taken together, the measures in this Bill will modernise the criminal justice system to make it more effective in reducing crime and improving public protection. It will create a more flexible criminal justice system that can deal with each offender in the most appropriate way, be it in the community, in custody or a combination of both. These proposals help to pave the way for seamless sentencing—a principle that is to be taken forward through the recently announced sentencing review.
At the heart of this Bill is the clear message that we are getting even tougher on crime by providing the Probation Service, the police and others with the tools needed to reduce crime and improve public protection, which is something that we should all support.
§ Lord Ackner
My Lords, before the noble Lord sits down, perhaps he will assist me on a small matter. To what extent has there been consultation with the current Lord Chief Justice on Clause 48? To what extent has there been consultation generally with Lord Justice Rose, particularly having regard to the very important liaison committee over which he presides? In relation to the Criminal Justice (Mode of Trial) Bill, the Minister placed at the forefront of his speech the support of the Lord Chief Justice. Does the Minister have that support for Clause 48?
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble and learned Lord for his question. Obviously, discussions with the Lord Chief Justice on this particular clause continue. I am aware of some of the proper concerns of the noble and learned Lord about that provision, which I entirely understand. That is a view to which members of the judiciary have long held. However, we believe that when looking at breaches, the flouting of orders of the court should be regarded as a serious matter. I understand the issue relating to judicial discretion, but clearly this is something that we can debate at greater length during the course of the Bill.
§ Lord Bassam of Brighton
My Lords, I cannot advise the noble and learned Lord whether or not there was specific consultation with Lord Justice Rose, but I shall happily look into the matter. I am aware that there are ongoing discussions. The Lord Chief Justice is involved in correspondence with, and makes his views well known to, the Home Office.
I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Bassam of Brighton.)
§ 3.31 p.m.
§ Lord Windlesham
My Lords, that exchange was worth waiting for, and I look forward to hearing the answer either from the noble Lord, Lord Bassam, or the Attorney-General at a later stage.
1293 I intend to confine my speech to Parts I and III of the Bill, which deal with the reorganisation of the Probation Service and changes in community sentences and their enforcement. The Probation Service plays a crucial part in the operation of the criminal justice system. It is often overshadowed by the police and the Prison Service and it is easy to underestimate its significance. In 1998, which is the most recent year for which statistics are available, nearly 150,000 offenders in England and Wales were sentenced to non-custodial penalties, excluding fines. We are talking in the main about community penalties. That is one-and-a-half times more than the total number sentenced to custody.
In thinking about the work of the Probation Service, to the total number of people serving community sentences at any one time must be added offenders who are subject to other categories of supervision, including parole and other forms of post-release supervision. Supervision apart, probation officers also have important responsibilities for preparing pre-sentence reports so that the court may pass a proportionate sentence, which is an aspect to which I shall return at the end of my remarks, and release plans for prisoners who are to be released from custody.
We can all agree that, regrettably, in recent years the status of the Probation Service has not been valued by successive governments as highly as it deserves. In that context I welcome the tribute paid by the noble Lord, Lord Bassam, to the work of the service. I am sure his words will be both noted and appreciated. But in the nature of things it is easier to highlight those who are subject to community penalties and reoffend when on probation than it is the larger number who complete their sentences successfully.
The Government's response to this situation since 1997 has been twofold: managerial and punitive. In Part I of the Bill the present organisational structure, which is a service based on 54 areas, each answerable to a probation committee largely made up of local magistrates, is to be replaced by a unified national probation service for England and Wales which is to be directly accountable to the Home Secretary. The service will have a structure based on 42 local areas; a board composed of local people and boundaries coterminous with the police and Crown Prosecution Service. Whether the new nationalised service will lead to more efficiency in operation and greater protection for the public to compensate for its loss of independence from central direction, and its answerability to local magistrates, remains to be seen. But at least the reorganisation has been the subject of thorough discussion with the service over a lengthy period of time, and with a wider audience; I refer, for example, to the consultation document published in 1998, responses to which have been considered.
The same cannot be said of the highly objectionable proposal contained in Clause 48, subsection (4), which requires a magistrates' court, unless there are exceptional circumstances, to impose a custodial sentence of up to three months on an offender aged 18 1294 or above if he is found to be in breach of a specified community order, typically a probation order or community service order. Those orders are to be renamed in the Bill, I believe unnecessarily, as a gesture to tough-on-crime policies, but the nature of the community penalties themselves will remain essentially the same.
The presumption of imprisonment, as it is called, uniquely combines two features which in recent years and months have been subjected to the strongest criticism in this House. The first is mandatory sentences of imprisonment, whereby the punishment is prescribed by law irrespective of the degree of culpability of the offender and the consequences of what he or she has done. That is fundamentally wrong. For years we had only one mandatory sentence: the mandatory sentence for murder. Then, in recent years, under both governments I regret to say, the list has lengthened. Mandatory sentencing takes away the discretion of the court other than in genuinely exceptional circumstances. We have the noble and learned Lord, Lord Bingham, to thank for that qualification. This is well-trod ground. The Government must have been well aware of what they were stepping out on.
In the Crime (Sentences) Act, which became law just after the 1997 election, but was introduced in Parliament prior to that election, three different categories of mandatory sentences were introduced. It was hoped that the third and largest category—mandatory sentence for repeat burglars—would never be implemented, but I fear that it has been.
The second objectionable feature to the presumption of imprisonment is that only last week we debated in this House another populist-inspired initiative: the withdrawal or reduction of social security benefits if a breach of a community penalty was alleged, but not proved. That proposal was overwhelmingly rejected by your Lordships in a Division on Report. Both proposals—loss of benefit and presumption of imprisonment—are misconceived. It would be best if they were abandoned. If that is too much to hope, I would ask the Attorney-General to explain the relationship between the two separate penalties. They have come from quite different quarters—different Bills and different sponsoring departments.
In relation to the mandatory penalty in Clause 48, for that is what it is, although there is an exceptional circumstances clause, there would have been no hope of getting it through Parliament without that provision. Let us consider the likely practical implications. The Home Office estimates that 25,000 people a year could be imprisoned for breach under these provisions at an additional cost to the Prison Service of £85 million in the first year, which includes £15 million capital cost and £70 million a year thereafter. Even those calculations, high as they are, are based on an absurd assumption of a 50 per cent deterrence factor for the measure. It is assumed that half the people who now fail to comply with an order would be so deterred by the threat of automatic imprisonment for a breach that they would comply.
1295 That flies in the face of all available evidence and research which has found that changes in sentencing have little deterrent effect, particularly on the type of offender who is sentenced to a community penalty.
We are not talking here about people who consider the consequences of their acts; the reality is the opposite. The idea that there could be a 50 per cent deterrence factor is indeed absurd. That description comes not from me, but from the 41 organisations which make up the Penal Affairs Consortium. It includes not only representatives of the penal reform groups, but also of the statutory services. It must be more realistic to assume that an additional 50,000 people annually will be imprisoned should these provisions become law.
§ 3.44 p.m.
§ Lord Dholakia
My Lords, the Bill comes before your Lordships' House on a day when the Prime Minister is hosting a crime convention, now downgraded as a seminar, in Downing Street. Its purpose is clear: what to do about crime and the level of violence in inner cities. I am delighted that he has stepped back from well-reported views which include police escorting trouble makers to the cash machines to pay their fines. Perhaps I may say how delighted I am to see the noble and learned Lord, Lord Williams of Mostyn. We missed him.
Last week, in a debate on the Child Support, Pensions and Social Security Bill, I said that it was difficult to see what could have possessed a government so strongly committed to crime reduction to introduce a measure which would inevitably increase crime. It is equally difficult to understand what could have made a government so committed to tackling social exclusion bring forward a measure which will further worsen the exclusion from society of many vulnerable people.
Today's Bill is no exception. It is a mixed bag. It contains some useful reforms which will bring about a more unified and consistent probation service, reduce the risk of unsuitable people entering the childcare profession and increase the scope for courts and the Parole Board to make imaginative use of electronic tagging requirements.
However, some other elements of the Bill, which appear to have been designed to show how tough the Government are in a pre-election period, will further overcrowd the prisons while doing nothing to reduce crime. The worst of these provisions is the draconian requirement in Clause 48 for courts to gaol everyone who breaches a community sentence unless there are exceptional circumstances.
The noble Lord, Lord Windlesham, spoke at length about the Probation Service. The reorganisation of the Probation Service into a new national probation service for England and Wales is broadly welcome. At present, with the service fragmented into 54 separate and independent areas and no national leader, it is difficult to ensure consistency of practice across England and Wales. Establishing a national service will make it easier to spread effective practice in 1296 supervising offenders nation-wide. A national director will be in a better position to act as a public advocate for the service and to press the case with government for more resources for the service. This will bring the Probation Service's area boundaries into line with those of the police and the CPS and will assist inter-agency work.
However, we on this side of the House have one principal concern about this reorganisation: it is that the Government have not achieved the right balance between national and local accountability. In particular, it cannot be right that the Home Secretary should appoint not only chief probation officers but also chairs of local probation boards. If we are to find people of high calibre to chair and serve on probation boards, they will want to know that the boards are not simply puppets of central government and that they will have real clout in their local areas.
The Bill creates a severe difficulty for the employers. The Central Probation Council is right to describe this measure as a recipe for confusion of accountability and authority which leaves the employers—in this case the probation boards—in an invidious position. We should take serious note of that. I hope that the Government will look again at this provision. Am I right that Ministers have spoken of the new probation service as following the health service model? Should not the probation boards have the same stature as health trusts and police authorities? We should certainly oppose any measure designed to increase the powers of the Home Secretary. My fear is not Jack Straw; it is that at some stage in the future Home Secretaries could impose oppressive powers to control this service. I trust that the Minister will think again about this particular measure.
We welcome the arrangements set out in Clauses 25 to 36 to prevent unsuitable people working with children. Paedophiles often seek employment in child care settings, giving them the ability to wreak appalling abuse on vulnerable children who cart have their lives wrecked as a consequence. The scheme set out in the Bill will prove a valuable safeguard for such children.
We are pleased to see that, unlike the sex offenders register for example, the Bill gives the court a degree of discretion in deciding to which cases these restrictions should apply.
The new exclusion orders contained in Clauses 41 and 46, prohibiting offenders from entering a specified area for a specified period, monitored by electronic tagging, could be a useful power if the orders are used sparingly and appropriately. For example, they could require a sex offender to stay away from the home of a victim or potential victim whom he has been targeting, or require a stalker or perpetrator of domestic violence to stay away from his or her former victim.
We also welcome Clause 57, which enables requirements to submit to electronic monitoring to be included in the licence for offenders released from prison. There are undoubtedly borderline cases where the availability of electronic tagging could assure the 1297 Parole Board that it is safe to release on licence an offender who could be steered away from reoffending by parole supervision but who otherwise might be refused parole.
I know that the noble Baroness, Lady Prashar, will contribute to this debate and I shall be delighted to listen to her views. There are three particular provisions in the Bill, however, which I believe are misguided. The first is the raft of provisions providing for mandatory drug testing of suspects and offenders at all stages of the criminal justice process.
The resources for such extensive compulsory drug testing would be far better spent on providing more treatment services. I acknowledge that the Government have put more resources into drug treatment, but I am sure that the Minister would accept that there is still far too little treatment provision across the country. The Government estimate that the new testing provisions will cost over £45 million a year, comprising £22.6 million for drug testing people on arrest; £7.8 million for drug testing people serving community sentences; and £15.1 million for drug testing released prisoners. These resources could instead have financed a significant increase in community treatment for problem drug users.
If the courts know of positive drug testing but do not have immediate resources for drug assessment or treatment services, they will simply remand more defendants to drug-ridden prisons. This is hardly the most sensible way of reducing drug-related crime. It would make much more sense to spend the money to ensure that more courts have ready access to drug services to which they can bail or sentence problem drug users who appear before them.
Clause 63 is also misguided. It increases the maximum penalty for parents whose children persistently truant to three months' imprisonment. Imprisoning the parents of truants will do nothing to reduce crime. Anyone who has worked with persistent truants knows that they often come from difficult, disrupted and unstable family backgrounds. Giving their parents a prison sentence would worsen the situation by producing an even greater instability and hardship for the child and for the family as a whole.
The worst feature of the Bill is Clause 48, which requires courts always to imprison offenders who breach community services unless there are exceptional circumstances. Mandatory sentences always produce injustice, and this will be no exception. It will further overcrowd the prisons and greatly increase the number of short-term prisoners for whom little if any rehabilitative work is done during a few weeks in custody. Typically, an offender who is returned to court for breach of an order will have failed to attend, or have been substantially late for, two probation appointments or community service sessions. In many cases the court will conclude that fining the offender and allowing the order to continue holds out more hope of preventing reoffending than imprisonment. Unless there are exceptional circumstances, however, it will be required to pass a 1298 prison sentence which it may regard as unjust, disproportionate and likely to increase the risk of reoffending.
The Government estimate that 25,000 people a year could be imprisoned for breach under these provisions. As the noble Lord, Lord Windlesham, pointed out, this would be an additional cost to the Prison Service of £85 million in the first year and £70 million a year thereafter. The true figure could be much higher, because these calculations are based on an assumption that 50 per cent of the people who now fail to comply with orders will be deterred from non-compliance by the threat of automatic imprisonment. This is an absurd assumption. It flies in the face of all the available evidence and research which has found that changes in sentencing have little deterrent effect. It would therefore be more realistic to assume that, under these provisions, anything up to 50,000 people will be imprisoned each year. We will certainly oppose this clause strenuously during the Committee stage.
If this Bill had been limited to establishing a national probation service, to bringing forward measures to prevent unsuitable people from working with children and to extending the availability and flexibility of electronic tagging provisions, we could have welcomed it with just a few detailed reservations. It is regrettable that the Government, having allowed themselves to be suborned by their overwhelming desire to appear tough at all costs, include other measures in the Bill which will do serious damage to the sensible operation of our penal and criminal justice system.
There are often matters in the Bill where clarity is required. The report of the Delegated Powers and Deregulation Committee has been submitted today. I was grateful for an advance copy. Will the Minister agree that in the matters relating to a drug treatment and testing order the negative procedures would be appropriate?
Does the Minister accept the committee's recommendation that the powers in Clauses 41, 42, 45 and 46 allow for the amendment of the Bill to increase the severity of a sentencing power? Does the Minister accept that these powers should be omitted? Is not the Delegated Powers and Deregulation Committee making a strong recommendation that, if they are to remain, they should be subject to affirmative procedures?
May I also draw attention to Clause 55, which I understand was added to the Bill in the other place. Am I right that this clause has been introduced to abolish the sentence of detention in a young offender institution? Does this mean that all convicted defendants over the age of 18 will be sentenced as adults?
I understand that an assurance was given in the other place that vulnerable adult prisoners will not be put at risk. Precisely how will the vulnerability and particular needs of young adults in prison be safeguarded?
The Prison Reform Trust tells me that there are currently 11,219 prisoners under the age of 21, just over 2,000 of whom are under 18. These juveniles, in 1299 the new youth justice system, are overseen by the Youth Justice Board. The Prison Service has worked to improve the quality and standards of the regime for the under-18s. The attention given to this group has, perhaps inevitably, led to a lack of attention and resources for young offender institutions holding those between the ages of 18 to 21. It is difficult to envisage how the particular needs of these young people will be attended to any better within the overcrowded prison system.
There are a number of sensible proposals in the Bill; but equally there are serious matters of concern. Just to take the effect of Clause 48, its implementation would result in the almost automatic imprisonment of offenders who breach their community orders. That means many more prisoners a year. It effectively means three more prisons the size of Dartmoor. All of this does not take into account what is being discussed in Downing Street today.
§ 4 p.m.
§ Baroness Stern
My Lords, I wish that I could give the Bill a warm welcome. After all, it sets out to strengthen community penalties. That is obviously right, necessary, timely and an important part of the strategy to build a more cost-effective criminal justice system. It sets out to reform the Probation Service. Some reform of the structure of the Probation Service to enable it to play a part in national criminal justice policymaking is long overdue. More protection for children from abuse is highly desirable, as is the establishment of the children and family court advisory support service and flexibility for the final warnings in the youth justice system.
But, sadly, one can welcome very little of the Bill. It is a measure with many missed opportunities, overlaid with a pointless punitiveness and, unfortunately, I fear, unlikely to achieve its aims.
I want to begin by commenting on the plans to reform the Probation Service and the penalties supervised by probation officers. I welcome the plans to reorganise the Probation Service, but I have grave concerns about Clause 2(2) which sets out the aims of the new service. The third aim is,the proper punishment of offenders".I am very surprised to see such an aim set out in a statute and I should appreciate clarification from the noble and learned Lord the Attorney-General, who is infinitely more qualified than I to comment on that point. I thought that it was the court which punished. The order of the court, whether a prison or community sentence, is the punishment. To suggest that those supervising the court order, whether in prison or in the community, should themselves be doing the punishing seems to me to run contrary to all the international requirements on the treatment of offenders as well as causing strong offence to probation officers who carry out their work on a strong ethical basis. I should be grateful if the noble and learned Lord could tell the House whether he knows of any other western European jurisdiction in which the officers 1300 implementing the penalties, whether in the prison or in the community, are required by statute to take upon themselves the task of punishing.
I now want to comment on Clauses 38 to 40, which relate to the renaming of orders. The proposed name changes have nothing to recommend them. They are confusing and the idea that they will increase public confidence seems very unlikely. I can imagine an advertising executive being quite daunted at the thought of having to devise a marketing campaign for a community rehabilitation order. Probably the best explanation is what we used to call "being put on probation".
The new name for community service orders is even worse; that is, community punishment order. At one blow, the name change destroys the ethos and meaning of a sanction which was invented here in Britain and spread all around the world. The essence of a community service order is "service". It is a measure which brings into the sentencing framework an element of reparation, restitution, paying back to the community, and putting offenders in a position to rebuild their relationship with the community and awakening in them a sense of social obligation.
At its best, it shows offenders that there are people worse off than themselves. It shows offenders that they can help people and be valued for it. Sometimes they voluntarily carry on with the community service work once the order is completed. It shows those being helped that offenders are people, too, and can do good as well as ill. It is a penalty with enormous possibilities for development. Once it becomes a community punishment order, it loses all that meaning. I really urge the Minister to reflect once more on the name changes.
I turn to Clause 48, which relates to imprisonment for breach of community sentences. The noble Lord, Lord Windlesham, set out the case most eloquently. A major objection is that it removes discretion from the courts. It will lead to injustice and the courts will not be able to take the action which they believe to be right, having seen the person and heard the circumstances. It is most likely to lead, not to a reduction in crime, but to an increase in crime. Over the years, I have known many magistrates. They have all seemed to me to be capable of looking at the offender before them and deciding what course is the most likely to prevent further offending.
As we have heard, the measure will mean that many more people will go to prison. Estimates vary between 25,000—the figure given by the noble Lord, Lord Bassam, in May—and 50,000 if there is no deterrent effect. In that context, I want to draw the Minister's attention to research on deterrence commissioned by the Home Office from the Cambridge Institute of Criminology. It concludes that,the studies reviewed do not provide a basis for inferring that increasing the severity of sentences generally is capable of enhancing deterrent effects".That research is available on the Home Office website and could probably be regarded as evidence-based.
1301 Increasing the number of people going to prison in one year by between 25,000 and 50,000 will increase the number of people receiving prison sentences by between 25 and 50 per cent. I want to remind the House what going to prison means. For many people, it means losing their homes. For most people in employment, it means losing their jobs and facing widespread discrimination in employment on release. It means meeting and getting to know many people who are looking for recruits for various criminal activities. It can mean becoming a drug addict. It is an experience which pushes people further out of legal society and towards the lawless fringes. It is socially very costly.
We are grateful for the information we have been given about the likely cost of such an increase in the use of prison, but can the noble and learned Lord the Attorney-General estimate the increase in social exclusion which will be created by the provision and the cost which will therefore fall to the budgets of other departments?
I want to mention briefly the measures relating to drugs. The vast extension of drug testing is estimated to cost £45 million a year, as mentioned by the noble Lord, Lord Dholakia. The organisations which work daily with drug addicts have asked: what is the use of testing without treatment? The noble Lord, Lord Bassam, told us that 700 more drug workers will be recruited. Is that adequate when one considers the amount of drug misuse he described today?
What effect will the measures have on the excellent and well thought-out arrest referral schemes? Under those schemes, people involved with drugs who are arrested are given the opportunity, when in the police station, to get help from voluntary agencies. How can that voluntary and apparently very effective approach be combined with such a raft of compulsory testing?
I want to raise a concern about the abolition of the sentence of custody in a young offender institution. I understand the arguments—more flexibility and perhaps a chance to keep young offenders nearer their homes—but I fear the consequences. Because of pressure on the Prison Service—and it will be greatly increased by these measures—perhaps not as a matter of course, but as a matter of fact 18 year-olds will be placed on the normal adult wings in Wandsworth, Wormwood Scrubs, Liverpool and the other large prisons. They will be at serious risk of being inducted into the adult criminal world or worse.
In conclusion, these measures have been presented as if they will increase public protection, ensure greater social peace and benefit victims. I am sure that the Attorney-General will not accuse those who oppose measures in the Bill of living in Hampstead, being lawyers and not caring about victims. That accusation is unsustainable. Victims are not helped if the names of community penalties are changed to something long and incomprehensible. Victims are not helped if drug abusers are tested and then there is no treatment. Victims on disadvantaged housing estates are not helped if many more of the young people who live 1302 there are ex-prisoners, unable to get a job and confirmed in their criminal identity by having served a prison sentence, even though it was for being late twice for a probation appointment.
This is a measure of missed opportunities: a missed opportunity to create a framework for community penalties that will make it clear to the public that they work and that they benefit victims and society; a missed opportunity to develop community service in particular into a penalty that is clearly restorative, paying back something to the victim and to society; and a missed opportunity to give courts, judges and magistrates a greater role in imposing sentences that are specific to offenders and their circumstances, and following them through to see that they work. I hope that it is not too late for much of this ill-considered Bill to be improved.
§ 4.11 p.m.
§ Lord Warner
My Lords, I rise to support the Bill despite the concerns expressed by the previous three speakers, whom I greatly respect. I should make clear that I neither live in Hampstead nor am a lawyer. I see the Bill as another instalment in the Government's programme of reforming the criminal justice system to make it more effective, both organisationally and in terms of processes. This is episode three, following the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999.
In making my observations, I declare an interest as chairman of the Youth Justice Board for England and Wales. It is no great secret that I was the Home Secretary's senior policy adviser from 1996 to the end of 1998. I share his desire to tackle the long-standing organisational problems of the criminal justice system and understand the importance of making community sentences more effective and publicly credible if they are to be seen as an alternative to prison.
As I sit through debates in this House, I sometimes believe that we want to have it both ways: we want to drive down the prison population but we do not face up to some of the consequences of that in terms of credible and rigorously enforced community sentences. I want to remark on those issues before turning to more specialist aspects of the Bill.
First, I come to the issue of reforming the Probation Service and increasing the credibility of community sentences. There is very little with which I am in any measure of agreement with the previous Home Secretary. However, he probably performed a public service in abolishing the earlier professional training for probation officers, based as it was on the diploma in social work. I say that having in a previous incarnation set up the first diploma in social work course in this country. Unfortunately, the Home Secretary put nothing in its place, and I was glad to have helped to establish a new qualification. It focuses much more on the enforcement aspects of probation work—an area where I believe some in the Probation Service have ended up on the wrong side of the argument about community punishment in relation to prisons and where a few are still positioned. We may hear from a few of them during the course of the Bill.
1303 The previous qualification and mix of functions were bound to leave the Probation Service confused about its primary role. Was it concerned primarily with enforcing court-ordered punishment or with welfare? I strongly support the removal of the family welfare function from the Probation Service and the establishment through this Bill of the new children and family court advisory and support service. Not only will it enable the new Probation Service to focus on its key task of enforcement; in my view, it will mean that we have a service to the courts which will better serve the interests of children.
I turn now to the issue of enforcement of community sentences. As I said earlier, we cannot have it both ways. We cannot curb the rise in the prison population when crime rises decade by decade and at the same time persist with too narrow a range of community sanctions which are inadequately enforced. At Second Reading in the other place the Home Secretary cited one large probation area, which for the sake of decency I shall not name, where nine out of 10 offenders breached national standards by failing to turn up on three or more occasions for probation appointments but were not subjected to further action. I repeat: nine out of 10.
I accept that enforcement has improved recently under leadership from ACOP, but that leadership started to be exercised effectively only when the Home Secretary began to press the public confidence aspects of properly enforced community punishments. If we do not want the prison population to rise decade by decade, we must face up to having a wider range of rigorous community punishments properly enforced through a reformed Probation Service, using new technology to the maximum.
The other evening this House indulged in a good deal of wishful thinking about community punishments on the subject of making social security benefits conditional on not breaching a community order. Under the present probation arrangements, courts send more people to prison and for longer terms. Before we criticise Clause 48, we might reflect on how effective the present arrangements are.
During the passage of the Bill we shall hear quite a lot of what I would describe as somewhat mealy-mouthed arguments about the terminology of community sentences. It seems to be entirely sensible to inject the word "punishment" into the title of such sentences. As a long-term supporter of the Plain English Campaign, I believe that we should call these sentences what they are: they are community punishments. The offenders, the victims, the general public and the enforcement service will then know where they stand.
§ Earl Russell
My Lords, does the noble Lord understand that the argument of the noble Baroness, Lady Stern, was not about the propriety of punishment; it was about the propriety of punishment being imposed by the executive?
§ Lord Warner
My Lords, we can have a philosophical debate about that and no doubt we shall 1304 do at later stages of the Bill. I am trying to set out my agenda in terms of my response to the Bill. I shall be happy to engage with the noble Earl and the noble Baroness in a philosophical discussion about that at a later stage.
I believe that in plain English we are dealing with community punishments. In my judgment, being clear that they are punishments to be enforced in accordance with national standards makes it far easier for the courts to use them without fear of being accused of going for soft options. In addition, they will be more reassuring to victims and to public confidence. We cannot simply shrug away concerns about public confidence. That is not being populist; in this country we police by consent and operate our criminal justice system by a degree of public consent.
Perhaps I may say a few words about the restructuring of the Probation Service. It is a key aspect of community enforcement to have the police and Probation Service working together closely, especially with sex offenders and persistent offenders. As many people in the Probation Service and the police service have said to me, realigning probation areas with police force areas is a major step forward. I believe that it is to be welcomed, as is the creation of a national probation service. It should provide the direction and leadership which are long overdue and provide greater consistency of enforcement between different areas.
Of course, the local boards are important but we should not forget that the local management arrangements that are in place have not been totally successful in achieving resources for the Probation Service, in improving practice consistency and in achieving public recognition of the legitimate achievements of the Probation Service that other noble Lords have mentioned. A stronger national focus would improve some of those aspects.
I strongly support the new measures on compulsory drug testing. Of course they will cost more to implement and of course it follows that more testing is likely to mean more positive results and the need for more treatment services. However, the fact that treatment services are still inadequate in some places does not mean that we should hold back on compulsory testing, as some are suggesting. That is a false argument. The two are not alternatives. We need both testing and treatment services.
Drug action teams should use the new money that has been provided to press on more vigorously than has so far been the case with the expansion of treatment services. The slow progress on testing should not be used as an argument to justify not pressing on with compulsory testing.
We have yet to exploit the full potential of new technology for electronic monitoring, which, combined with effective supervision, could help to create effective community punishments. I hope that the Government will not be deflected by the contrived attacks of the Opposition spokesman in the other place on home detention curfews. They have been a huge success when applied to people who were 1305 coming out of prison on licence anyway, with more than 95 per cent of offenders completing their period of HDC without being convicted or cautioned or having proceedings still pending. That shows what we can achieve on community punishment if we set our minds to it. I welcome the provision in the Bill to make further use of electronic monitoring as an alternative to prison. It can often be a more effective way of punishing.
Finally, I welcome the new measures on juveniles. I particularly welcome the measure to help to prevent unsuitable people working with children and to make it a criminal offence for anyone so identified to apply for or accept work with children. From my experience in social services, I know that paedophiles are devious people and are far from self-evident. The Government are to be congratulated on further strengthening the provisions against people who seek to abuse children. It is clear from the debate so far that there will be many areas of detailed scrutiny and discussion as we take the Bill through the House, but its shape and content make it an important criminal justice reforming measure that deserves our full support.
§ 4.22 p.m.
§ Lord Ackner
My Lords, I start with a general point. I am appalled by the recent attempts to politicise the administration of criminal justice. The Government and the Opposition appear to be vying with each other as to who is the tougher on crime. Having apparently been stung by the criticism of having done too little to stop English football thugs causing mayhem at Euro 2000, thereby seriously, if not fatally, prejudicing the 2006 World Cup bid, the Government have resorted to gesture politics.
The Prime Minister's lecture at Tubinger University in Germany last Saturday gave the clearest indication that the urge to take action to convince the public that something positive is being done is so strong that no time is taken to think through the proposals, or even to consult those who are affected. Apart from the obvious forensic criticisms, based on the common law or on human rights legislation, which I need not repeat, I ask from a practical point of view how the police are to cope with football thugs who, in preparing themselves for a night of thuggery, are wise enough to take the precaution of carrying neither money nor credit cards with them.
It was not ever thus. Until the 1990s, sentencing and the criminal law were not party political issues. Legislation was not introduced to score political points. In the 1970s, criminal justice legislation would not have been introduced unless a neutral body, such as an interdepartmental committee, had thoroughly reviewed the issues and produced the proposals. As a result, it was considered excessive to have even one new criminal justice Bill a year.
That system has disappeared. Legislation now emerging from the Government is politically driven, such as the Crime (Sentences) Act 1997. Outside bodies, such as the Advisory Council on the Penal 1306 System and the Criminal Law Revision Committee, have almost completely disappeared. Not long ago, there was bipartisan consensus that the aims of sentencing should concentrate firmly on the rehabilitation of offenders. Of course, no one doubted for a moment that those who commit serious crimes must receive a custodial sentence. That approach appears no longer to be politically correct. The Government and the Opposition appear to have overlooked Section 1 of the Criminal Justice Act 1991, which makes prison the sentence of last resort.
Clause 48 provides an almost automatic sentence of imprisonment. The Government well know that the words "exceptional circumstances" have been so narrowly defined by the courts that they have almost come to mean "once in a blue moon". By seeking to remove judicial discretion, the Government are attacking judicial independence. If Parliament requires the judiciary to impose a sentence that the judiciary considers unjust, it is a clear attack on the independence of the judge.
Your Lordships had no difficulty in appreciating that concept when, some time ago, I drew attention to the Russian phenomenon of telephone judges, who were phoned up by the executive during a trial and told what sentence should be imposed. When I took up that issue, somewhat critically, at a dinner party where I met the chief prosecuting counsel, he waved my criticisms aside, saying, "Well, after all our hard work, we are not going to run the risk of judges making a nonsense of what we have achieved".
Save as a matter of degree, I do not see that what is happening here by statute is all that different. Instead of being rung up and told what sentence to provide, Parliament has set it out in the statute. It does not matter how unjust you think it is as a judge, unless there are exceptional circumstances—a sense of injustice is not one of them—that is the sentence that you are obliged to impose. The results of Clause 48 will involve, from to time, a judge being obliged to impose a sentence which he considers is unjust. In any event, it is a sentence which is likely to be too short for any rehabilitation work.
There has already been reference to the extent to which this provision will increase, and substantially increase, the prison population. There has already been a reference to the cost involved. There seems to be little to support the nature of that provision except that the executive does not have confidence in those who are appointed to exercise the judicial function.
To some extent, I applaud the Bill because it is an indication that the Government realise that the public must be educated to understand that sentences within the community involve punishment. Unless the public so understand, there will be inadequate confidence in community sentences and as a result, under the impact of public opinion, the prison population will increase.
The Government are foolish to place so little confidence in the reasoning ability of the public and in their understanding of the elementary points of sentencing. Renaming sentences—Clauses 38, 39 and 40—will not achieve anything at all. It may add to 1307 confusion in that the probation order will sound very similar to the community order. Strangely enough, the probation order does not refer to punishment and the community service order does not refer to rehabilitation. As I suggest, there is likely to be confusion as a result.
I do not wish to take up further time on other matters in the Bill because they have been well covered by previous speakers. I accept the strength and validity of their criticism. I hope that the Government will think again, but hope is now beginning not to spring eternal, having regard to the extraordinary behaviour in which this Government and the Opposition are indulging on the subject of punishment.
§ 4.43 p.m.
§ Baroness Seccombe
My Lords, two months ago, I received the customary letter from the noble and learned Lord the Lord Chancellor, informing me that, having reached a certain age, my services as a magistrate were no longer required. It is in that capacity that I declare an interest and express my personal views gained from over 30 years on the Bench.
I never served on the youth panel so my only experience with children was via the family court. I saw that work as very much a protection issue for the innocent children caught up by warring parents unable to settle their differences concerning the children.
After many years spent listening to heart-rending situations involving children, I learnt how important it was to have wise advice from dedicated professionals. Therefore, I welcome measures which will strengthen that support and, it is hoped, ease the way for distressed and unhappy families.
Like all new services, CAFCASS, as I am sure it will be called, will require adequate funding. If the necessary finance is not forthcoming, there will be great frustration as expectations will not be realised. Therefore I hope that the noble and learned Lord the Attorney-General will be able to assure me that the service will be properly resourced and has been thought through in detail.
Mentioning the words "thought through in detail" leads me to wonder at this point whether the Prime Minister's initiative on loutish behaviour will be included in this Bill. I was amazed at what appeared to be a comment off the top of his head when he was in a panic. I was even more astonished that a Prime Minister should announce such a measure when he was in another country. It seemed to me to be rather like washing dirty linen in public. Potential visitors from Germany may think twice about coming here if they accept the Prime Minister's view that such behaviour is prevalent in every town and village.
Part II is perhaps the most important part of the Bill. I am sure that other noble Lords were as horrified as I was by the depravity and cruelty which took place not only in Wales but in other institutions around Britain. Those were children who, through no fault of their own, had been placed in care. I can hardly bear to use 1308 the phrase "in care". The children were subjected to the most appalling and terrible experiences. I feel deeply ashamed whenever I think of it. How on earth did we let it happen?
I have never forgotten the exhibition organised by the police on paedophiles and their behaviour, although I felt that I just could not stay until the end because it was too upsetting. I saw a video of how a small boy was sexually abused. His expression of sheer fear, terror and misery haunts me constantly.
People who offend in that way should not be allowed to work or have close contact with children, I believe, ever again. I welcome measures introduced to reflect that concern. In particular, I welcome placing the burden of proof on the individual to show that he is no longer a risk if he should ever apply for the order to be revoked. But we shall need to look at the arrangements for those disqualification orders. I understand that they will be used only against criminals sentenced to 12 months or more. That seems to leave a loophole and amendments must be tabled to deal with that in Committee.
Another area of concern is the patronage which will be vested in the hands of the Secretary of State. Just as in the Learning and Skills Bill, there is that great centralising measure with the chairmen of both national and local boards being appointed by the Secretary of State. That will need extremely careful scrutiny in Committee.
Part III deals with offenders. I was saddened to see that the Government want to change the name of some court orders as, apparently, Ministers feel that the present names are not understood. I disagree and cannot accept that "community rehabilitation" is better than "probation". After all, the expression "probation" has been in use for many years and I believe that it is understood by most people, even if riot by Her Majesty's Government. In particular, it is understood by those people appearing before the courts.
I also believe that "community service" is more acceptable than "community punishment". After all "service" is what is being done—unpaid work for the community. However, I concede that the phrase "combination order" is awkward and would be better expressed as "probation and community service order".
I hope that this is not change for the sake of change and I hope that it is not yet another of new Labour's modernisation obsessions.
That leads to breach of community orders. I am deeply concerned that mandatory imprisonment for failure to comply with an order is creating a straitjacket. For example, it takes no account of those suffering from mental illness. I am reminded of unit fines, which were inflexible on introduction but were soon altered. Magistrates should be given the discretion and flexibility to make decisions in each case without the stricture of obligatory penalties. I believe, however, that if an offender breaches an order, he 1309 should be dealt with firmly and speedily. He may, indeed, receive a custodial sentence but not a mandatory one.
The Bill has already been the cause of much debate on the issue of the non-attendance of pupils at school. The Bill would raise the maximum penalty from level 3 to level 4; in other words, from a fine of £1,000 to one of £2,500 and/or three months' imprisonment. It seems rather absurd to raise the fine to such a high level. During my time on the Bench I occasionally heard cases of that nature. Most of those who appeared before us were single mothers on benefit who also had other children. I have looked at the current sentencing guidelines for a first offence for someone in that position. Where a child has missed three weeks at school, the starting point would be £40 or, if a child missed half a term, £100. A guilty plea would result in a discount in which the fines would be £26 instead of £40 or £66 instead of £100. That is obviously a far cry from £1,000 never mind £2,500.
I am told that the purpose of raising the level is to give the court the power to issue a warrant for arrest if the parent fails to attend a court hearing. I would be grateful if the Minister could confirm that. I believe that parents should attend to explain why a child has not been going to school. However, that seems to be a heavy-handed way to go about it. I would hope that another method could be found to achieve the same ends.
I have always felt that the problem was the delay in getting the case to court. I remember a case where the non or minimal attendance was spread over two terms. It must he better to bring the case at a much earlier stage. It would be helpful if the Minister could say how many pilot parenting orders have been made in the past two years and how effective they have been. I would also welcome a copy of the evaluation. The Bill is therefore like the curate's egg: it has some good points which I welcome but others which are in need of amendment.
The Government have an enormous problem. Crime—particularly violent crime—is rising. Police numbers are falling and new measures will require more manpower. I hope that your Lordships will agree that we have a responsibility to ensure that where possible we improve the Bill so that, when enacted, it will be a useful tool in the battle against crime.
§ 4.42 p.m.
§ Baroness David
My Lords, I thank the Minister for his clear exposition of the Bill, which makes two sensible and interesting changes to the Probation Service and the court welfare services. The Probation Service is reorganised into a national probation service for England and Wales, the 54 present separate services being reduced to 42. Their areas will be coterminous with the police and Crown Prosecution Service. That should make for greater consistency of practice and make it easier to spread good practice across the country. One national director should be in a more powerful position to put the case for adequate 1310 resources, which are essential if the Government's aims of reducing offending and protecting the public are to be realised. Like the noble Baroness, Lady Seccombe, I should like reassurance about the resources to be provided.
The other change is the creation of a unified service for the court welfare services which will become the children and family court advisory and support service, or CAFCASS, as it is now called. I am not keen on acronyms, but that is certainly less of a mouthful than the whole six words. It is to be a merger of the guardian ad litem and reporting officer service for public law cases; the family court welfare service for private law cases, and the children's section of the Official Solicitor's office.
The aim of creating a single source of expertise within the court system is to be welcomed. It may take a little time to settle down and make those now working in the system happy that their interests and expertise will not be diluted or ignored. I know that the guardians ad litem have some anxieties concerning: first, the qualifications of the officers of CAFCASS; secondly, the right to conduct litigation and right of audience (which comes within Clause 15); and, thirdly, the inspection service.
When the Minister, Paul Boateng, and the Parliamentary Secretary, Mrs Jane Kennedy, came to speak to the All Party Children Group last week—we are very grateful that they did—I asked about training. I was told that discussions are underway regarding an integrated strategy and accreditation scheme and that the Government were looking at continual professional development, an issue which has been ignored in the past. Both trainee and in-service training issues, as a modular degree course based on the OU distance learning approach, were being considered.
The aim is to have CAFCASS up and running by April 2001. Training recommendations are to be ready by September 2000. Further decisions depended on the appointment of a chairman and board for CAFCASS. When is that to happen? September 2000 is very near. If the new service is to be a success, which we all want it to be, the training programme is vitally important. Existing officers, who may have their job descriptions changed, will want to know how they are to work. They need to know soon if morale is to be kept up.
A second issue which I raised at the meeting was the matter of how children's views will be held by the court. Clause 12(1)(c) of the Bill defines as one of the service's duties:to make provision for the children to be represented in [family] … proceedings".That begs the question: what is to be represented, the child's wishes or the child's best interests, or both? To put it another way, if there is a conflict between the CAFCASS officer and the child, who instructs the lawyer?
Under the rules governing guardians ad litem, if the guardian's views of best interests conflict with the child's view of his or her best interests, the child has the right to be separately represented by a lawyer, while the guardian continues to report to the court.
1311 On the other hand, the Official Solicitor only ever represents the child's best interests. He usually informs the court of the child's views, but that does not mean that he represents them. Indeed, he may argue against them. Can the Minister, or the Attorney-General, when he replies tell us how this problem is to be resolved, and also how Article 12 of the UN Convention on the Rights of the Child has to be considered?
I turn to Part III of the Bill, about which I have quite a few reservations. I should like to say, before embarking on this part of my remarks, that I am totally sympathetic to the aims of the Government in trying to reassure the public that the Government understand the frustration and horror that those who suffer burglary, vandalism, assault, and noise feel about the system that allows this to continue. They think that the Government are soft and the sentences inadequate, particularly the community service order.
We have to make it clear that it is an adequate and useful sentence, as the noble Baroness, Lady Stern said, and that breaches will be dealt with quickly. I know that there has been some slowness regarding that, but there has been a great deal of improvement lately and I am sure that the Probation Service appreciates that there must be. I firmly believe that to change the name of the order to "community punishment order" is a bad mistake. It is even slightly ridiculous. It sounds as if it is the community that is to be punished and not the offender.
I hope that Government will listen to the remarks of the noble and learned Lord, Lord Ackner, which I thought were very sound. Of course, the offender must repay his debt to society. However, at the same time he must be put in the way of learning other ways to behave, and of new possibilities for job training. He must find new interests and meet people who can sympathise and help. I dread to think what Lady Wootton would have thought of the proposals in the Bill for the name of the order. It was she and her advisory council at the Home Office who invented the community service order, which can be so successful and could be made so now. I hope very much that we can go back to "community service order". I think that it can be made to be understood by the public.
I am also against bringing offenders back to court without a second warning and the magistrate being given no discretion at all, as the noble and learned Lord, Lord Ackner, and others have said. That is quite wrong. There will be increased pressure on the overcrowded prison system with little if any rehabilitation taking place during the few weeks in custody. In many cases a fine and a continuing order is much more likely to prevent the offender from reoffending, and I hope that we can make changes in that regard.
As has been said, even the Home Office suggests that 25,000 people or more will be sent to prison, at enormous cost. That is an incredible waste of taxpayers' money. My noble friend Lord Warner told some of us a week or so ago about the highly successful work being done by the Youth Justice Board. If 1312 something new is required, perhaps that could be extended to the 18 to 25 year-olds; that would be far better than sending those young people to prison.
My final point concerns the proposals to increase the penalties on parents for the truancy of their children. The fine on parents of a persistent truant is to be £2,500 or three months in prison. Parents of such children are most unlikely to be able to pay even modest fines, let alone those of £2,500. They tend to come from the poorest areas with the lowest incomes, and most have a range of social problems. The schools themselves will begin to experience problems if this provision is brought into force. If the parents are sent to gaol, it is likely that the children will be taken into care, thus adding another problem to an already dysfunctional family.
And the question of human rights may arise. Surely people should not be deprived of their liberty for the actions or non-actions of others. I hope that the Attorney-General will think about that. The Government have given commendable support to non-punitive anti-truancy programmes Perhaps they can be extended.
There are some aspects of the Bill to praise. The protection of children is enhanced. But I, like many others, have raised matters of concern. I hope that the Attorney-General can reply in a positive way. Let us make improvements to the Bill as it goes through this House so that we can be proud of it. At this moment, I cannot really say that I am.
§ 4.52 p.m.
§ Lord Phillips of Sudbury
My Lords, I suspect that no Bill on crime and punishment in this age will be anything but extremely difficult to put together. This Bill is no exception. Our job is to scrutinise and speak up about those areas where we feel improvements can be made. I agree with much that has already been said.
In relation to one point made by the noble Baroness, Lady Stern, reference to "punishment" in the issues to be considered under Clause 2 by the new probation service (as I shall persist in calling it) is a mistake. However, I congratulate the Government on the protection of children provisions, Clauses 25 to 37, which are a model by comparison with what I am afraid is now law in the Care Standards Act, about which we had many debates hitherto. It may be that there is a difference in departments, but the Home Office understands a great deal about basic human rights and procedures.
But even in commending those provisions I raise one issue: as things stand, the Secretary of State can, by order, extend the range of offences in respect of which disqualification from working with children will automatically apply. That is an important issue. It adds a second and in many cases more important punishment to an offence than the punishment provided under the mainstream criminal law. That extension should therefore be granted by a positive procedure.
My other point on the disqualification arrangement again echoes what the noble Baroness, Lady Stern, was saying rather eloquently in terms of the 1313 rehabilitation of offenders, which I am sure we all agree is difficult to achieve. Is it necessary to say, as the Bill says, that someone who is disqualified from working with children cannot make an application for the lifting of that disqualification, not merely 10 years after the offence was committed, but 10 years after he or she was released from prison? That creates a difficult climate in which individuals can hope, within prison, to rehabilitate themselves so that, in the case of a long sentence, they will come out of prison radically altered from the state in which they went in.
I should like briefly to back what was said by the noble Baroness, Lady David, in relation to Clause 15, which allows the new service, CAFCASS, to appoint an officer to represent a child in proceedings rather than, as now, a solicitor or solicitor and barrister. In that regard, representing what many of us think, Barnardo's said,Barnardo's believes that the best interests of the child … have been well served by the combination of the Guardian Ad Litem and the child's solicitor … We are concerned that this Bill will diminish an effective system … If the guardian is no longer able to instruct a suitably qualified lawyer"—of course, there is now a highly developed children's lawyer panel—there is a risk that the views and opinions of the child will not be fully heard by the Court".Clause 16 allows the officer who is acting as advocate for the child to be a witness in the case. How can that be satisfactory? How can someone in the witness box represent a child who is sitting in the court? How can the child's questions be asked if the witness is the advocate? I feel that that needs looking into and shall be interested to hear more when the Government respond.
I should like to make one or two points on Clause 28. It has been well covered and I agree with the points made. The Probation Service in Inner London carried out a two-year survey into breaches of monitoring. It found that over the relevant period 28 per cent of the total case load had been breached; that is, 4,388 cases; and during that period, 21 per cent of those breaches received a custodial sentence. With respect to the noble Lord, Lord Warner, I do not see how the increasing use of prison sentencing now can be anything but increased further if Clause 28 goes ahead. It places a near compulsion on magistrates to send offenders to prison.
My next point concerns the arrangement in Schedule 1 for what are called "local boards"; the old probation committees. Schedules tend to be rather dry stuff, as I know only too well, but sometimes the devil is in the detail and Schedule 1 is no exception. My colleague has already referred to some of the aspects of this schedule, but I urge your Lordships to look at it. It is an astonishing display of control freakery. This is a government-created quango—if that is the right description of these local boards. Incidentally, while we are on nomenclature, is not that the most unmemorable, downbeat title for such an important new body? They are not even "probation local boards", just "local boards".
1314 As I say, Schedule 1 gives the Secretary of State a totally counterproductive set of powers. One might expect the appointment of local boards to come from the Secretary of State. But, as my noble friend Lord Dholakia said in opening from these Benches, the right is also reserved to appoint the chief executive of the local board, and he or she will then be on the local board. At the moment, the probation committees appoint their own chief executives. They have to draw up a short list which the Home Office then has to approve, and the person they select has to be approved by the Home Office. But this is a big leap. Once appointed by the Secretary of State, the chief executive is then employed by the Crown: he is not an employee of the local board. Everyone else is, but not the chief executive. It does not need anyone who is experienced in organisations—I spent 25 years of my long legal career looking at little else—to see that that is a self-defeating state of affairs. It creates conflict; it creates pressures; and it creates suspicion. Who does the poor chief executive look to when there is a dispute between the local board and the Secretary of State? I do not need to go on.
The "tenure of members" of the board is totally determined by the Secretary of State as, indeed, are the procedures. Remuneration is also determined by the Secretary of state, but that is fair enough. Sub-committees, and so on, are totally determined by the Secretary of State. Then we come to paragraph 8 of the schedule where, for one scintilla of a second, you think that here is a power that the local board can exercise. Paragraph 8(1) states:A local board may appoint staff on terms and conditions determined by the local hoard"—hooray! But, sub-paragraph (2) states that any such determination,requires the approval of the Secretary of State",and so on.
Paragraph 11, which is headed "Payments to Boards", states that the Secretary of Statemay pay … any amount he considers appropriate";but then he may not. The supervision of these local boards is also totally determined by the Secretary of State, as are its ancillary powers. In that respect, the boards cannot borrow. How on earth can a local board get on with its work if it cannot borrow to tide itself over cashflow difficulties? Indeed, the current probation committees do so. Moreover, it cannot hold land.
I believe that the Government have gone to the expense of £1 million to commission a consultants' report on property—noble Lords know what we all think of consultants' reports—and a right old shambles that is. Although it may seem a rather trivial home-keeping issue, I believe that we should take account of what the Central Probation Council and the National Association of Probation Officers say; namely, that this is a very important bureaucratic issue that will cause mayhem, waste and frustration.
1315 Directions can be given; indeed, paragraph 14 of Schedule I says that "different directions" may be given for,different purposes … either general or special".Frankly, it would not require anyone in the Home Office who was anything more than incompetent to grind this whole magnificent system to a complete halt. Therefore, I urge the Government very strongly to reconsider the whole of Schedule 1. If there is no degree of trust between government and these local boards, we shall not get performance. Moreover, I do not think that good people will want to serve on the boards if they are as ludicrously constrained, as is currently the case, with regard to their powers.
As I am sure your Lordships will agree, it is difficult enough even now to get good, experienced and capable men and women in the midst of their careers to take on such obligations. I really do despair when one has, as one has at the back of this proposal, the assumption that somehow the centre will do it better than the regions, or the localities. In his opening remarks, the Minister talked about a "unified and centrally-driven service"; it is certainly that. He also talked about the local boards being "more representative". But how on earth will they be more representative? Indeed, they cannot conceivably be more so than those run and appointed by local authorities, as is the case now.
The noble Lord, Lord Warner, said—I think I quote him correctly—that the central control that the Bill will give, especially under Schedule 1, will provide both "direction and leadership", which is long overdue. Does the noble Lord really believe that? Frankly, I do not. This is the absolute recipe for a eunuch board or a series of eunuch boards, which will be worse than useless.
The noble Lord also said that probation committees have not done a "totally successful" job of getting the necessary resources. Surprise, surprise! Just tell me about one arm of state—schools, hospitals or pensions—that has a plenitude of resources. Whose fault is that? What about the next government, or the one after? Are we really content for this crucial service to remain so totally at the whim, and in the hands, of the Secretary of State of the time? I am not; and I have not found anyone out there who thinks that this is satisfactory. On that issue, I urge strongly that the Government should look rationally and objectively at this—I should not say that because they always do so. Perhaps I should just urge them to look again.
§ 5.4 p.m.
§ Baroness Prashar
My Lords, from my position as chairman of the Parole Board of England and Wales I shall concentrate of Part I of the Bill—that is, the creation of the national probation service—and parts of the Bill that deal with greater use of electronic monitoring, stricter enforcement and the new powers for compulsory drug testing of offenders and alleged offenders.
Perhaps I may turn, first, to the creation of the national probation service. I believe that this legislation provides an opportunity to bring about 1316 greater consistency and co-operation between the criminal justice agencies; it provides a launch pad for the Probation Service to be even better at reducing offending and reoffending and protecting the public; it places the Probation Service in a better position to persuade the courts and the public that community supervision is vigorous and effective in combating crime.
I particularly welcome the fact that the Bill will result in a stronger national identity and consistency for probation services, together with strong local accountability and service delivery. As we have heard, with the Probation Service fragmented into 54 areas at present and with no national leader, it is difficult to ensure consistency of practice and spread effective practice in supervising offenders nationwide.
The Parole Board works closely with the Probation Service and so we observe from very close quarters the importance of the service's contribution to criminal justice. In recent years, I have witnessed enormous changes in the service. The one significant change is that the service now sees itself very much as part of the criminal justice system, concerned not only with rehabilitation but also with public protection. It is therefore hard to imagine a more difficult and sensitive job than the one which the Probation Service performs. It is equally hard to imagine an effective penal system that does not rely heavily on the professional skills and experience of the Probation Service.
Any measures that strengthen the ability of the Probation Service to perform this crucial role need to be supported. The role of the Probation Service is, and must continue to be, central in relation to those who are in the community; those who are in prison; and those who are making the difficult transition from prison back into the community.
Today, I should like to take time in your Lordships' House to spell out, from the point of view of the Parole Board, how the proposed changes will impact on throughcare and discretionary early release of prisoners. Joint working between the Prison Service and the Probation Service is of great importance to the Parole Board. This working together will ensure that the reports and risk assessments that we receive from prisons and probation officers will be of the highest quality. Risk assessment, which enables us to determine whether an offender is suitable for discretionary release on licence, is a shared concern and is one of the most exacting tasks.
It is recognised as a starting point of work with offenders and the starting point of sentence planning. Probation staff work within prisons and assist prison management to monitor, evaluate and develop resettlement plans with a view to assessing and managing risk. Prison-based probation staff use their links with the outside Probation Service to obtain information about potentially dangerous behaviour and contribute to inter-disciplinary risk assessments for various purposes.
The work of the Probation Service in managing offenders in the community following their release from custody should, therefore, be built on the work 1317 undertaken in prisons. Better alignment of organisational boundaries within the criminal justice system would assist this further. It would also improve consistency of performance and standards between areas that are currently left to ad hoc local arrangements and differing interpretations of best practice. It would enable improvement of arrangements for disseminating best practice and enable the Parole Board to become involved in probation policy formulation that impacts on discretionary release issues. A national headquarters with which the Parole Board could have direct contact and develop working relationships would overcome the difficulties of communication that we currently encounter.
Central accountability would also help to overcome inconsistencies between probation areas. It would give the service a strong voice at all levels, which is bound to improve the way in which prisoners are managed before and after release.
There is also great merit in co-ordination of corrections policy which has shared aims and objectives, the same risk assessment bench marks and methods and the same systems of accrediting programmes for offenders. However, it will be important for the service to retain local links and local accountability if it is to retain its effectiveness and remain responsive to local needs and circumstances. A national probation service would not necessarily lead to a better service. The balance between police and operational competencies is important and it is this balance which in my view would ensure an effective probation service. Moreover, to perform its role effectively the service needs support, understanding, appropriate and workable organisational structures and, of course, resources, which have already been mentioned.
The Penal Affairs Consortium has argued that the division of accountability between central government and local probation boards must be clarified and boards must have sufficient clout to ensure that local people of high calibre will consider that it is worth being on them. Sufficient resources must be made available to the Probation Service and voluntary partner organisations to allow high quality work to take place which builds on evidence of what works most effectively in reducing crime. It would be helpful to be given assurances on these issues.
Furthermore, supervision and rehabilitation are at the heart of the new national probation service. This is an opportunity for the Government to set out clearly the overall aims of the service, as I believe that this would help to improve public understanding of the service and increase public confidence. While enforcement of licences when people are released from prison and enforcement of community penalties are critical, I argue that the service's role in rehabilitation is equally important. I therefore urge the Government to spell out the Probation Service's role in rehabilitation.
1318 As we know, the Probation Service has a history which stretches back over 100 years. There is a richness here which has relevance to the Government's aspirations for the modernised Probation Service. The service has always worked with those at the fringes, trying to influence the lives of those whom society finds easier to exclude than to include. Some people in our communities experience disadvantage from an early age. We all recognise that our prisons are more likely to be filled with those who have poor family backgrounds, fail at school and drift into unemployment.
Tackling crime means tackling such problems. Punishment and the strict enforcement of community sentences are a legitimate part of the community's expectations, but the Probation Service knows from its own rich experience that preventing offending requires individual offenders to acquire a true sense of citizenship. That is a human right. The Probation Service has vast skill in challenging unacceptable behaviour and promoting the re-integration of offenders. These are the ingredients of a true recipe for crime reduction and we would do well to remember it. The desire for revenge is so often allowed to dominate the way we punish crime in this country. Rhetoric about toughness so often lends itself to policies which make it more difficult to make a real difference to the level of crime that we face.
If we want to increase public confidence and reduce levels of crime, we must focus on prevention, inclusion and rehabilitation. Exclusion, revenge and intolerance are not the way forward.
The service has a particular expertise in community-based risk assessment. Recognising the danger signals in attitudes and behaviour are part of the service's shrewdness. The way it handles the most difficult and dangerous people in society proves its capability. This expertise is relevant to the enforcement of community penalties and is vital to the courts and other parts of the criminal justice system. It would therefore be a backward step if the service were to be allowed no discretion. What I have in mind here is the clause which replaces two non-statutory formal warnings with a single statutory one and introduces a presumption of imprisonment for offenders who are found to be in breach of a community sentence.
I do not argue with the introduction of a single warning before breach proceedings are initiated, but I believe that a near mandatory prison sentence is bad law. It will impose needless costs on the Prison Service and increase pressure on the prison system by increasing the number of short-term prisoners for whom little, if any, rehabilitative work is undertaken during a few weeks in prison. It will undermine the effectiveness of probation work. Moreover, the presumption of imprisonment is a significant erosion of judicial discretion in sentencing and will make it inevitable that some offenders will go to prison in direct conflict with the original intention of the sentencers.
Having praised the virtues of the service, I take this opportunity to draw the attention of the House to the report, Towards Racial Equality, the thematic 1319 inspection report of Her Majesty's Inspectorate of Probation which was published last week. It is disappointing, to say the least, that the progress which the service made in the 1980s and 1990s in this area has diminished as far as the question of racial equality is concerned. In his foreword to the report, Sir Graham Smith, Her Majesty's Inspector of Probation, said,I was dismayed by many of the findings of which some raised very serious concerns. I was particularly disturbed about the disparities found in a number of areas of practice between the approach to work with white offenders compared to minority ethnic offenders. Although there was a commitment to work with racially motivated offenders, few services had produced any detailed guidance necessary to transfer this into operational reality".Sir Graham quite rightly states that racial equality is a "given" and not an optional extra and must be integrated into all aspects of the service's work; that it must challenge and address the behaviour of minority ethnic offenders; and that work must be undertaken to confront and change the racist attitude and behaviour of offenders. He further emphasises that race equality is integral to "what works" and that race equality is synonymous with good practice and is central to the core business of the Probation Service.
Although the findings of the report are extremely disappointing, its recommendations are strong and timely. As we are moving towards a new style Probation Service, it is important that race equality is built into its very foundation and is seen as an integral part of it. It would therefore be helpful to be given an assurance that the recommendations of this report will be fully implemented and not just be treated as guidance and that racial equality and its promotion will be part of the national standards.
I now turn to electronic monitoring. As I understand it, this Bill will provide the statutory authority which will allow the imposition of electronic monitoring on any prisoner who is released from a custodial sentence and who is subject to a period of supervision on licence in the community.
When determining whether or not to release someone on licence, the Parole Board takes into account a number of factors. These include: the nature of the crime; previous convictions; prisoners' previous compliance with supervision (if relevant); behaviour and progress in prison; and the release plan; that is, accommodation, employment and arrangements in the community for supervision. So I presume that this additional provision in the armoury is intended to help with compliance and that its availability is not intended to change the way in which we currently assess risk. It would therefore be helpful to be given some clarity on that matter.
Finally, I say a few words on measures to deal with drugs. Like others, I applaud the fact that the Government are determined to break the link between drugs and crime and that the drug testing provisions in the Bill are intended as a means of encouraging good behaviour and deterring drug misuse. I would, however, be grateful if the Minister could assure the House that drug testing will be imposed only where it can assist in the effective resettlement of a prisoner on release from custody.
1320 We all know that drug misuse is a chronic relapsing condition. We also know that drug treatments can make a significant positive impact on those problems, but we have no convincing evidence that testing alone can do so. It is therefore important that a drug abstinence order as a requirement is used in conjunction with drug treatment. We must also recognise that as offenders cannot simply stop misusing illegal drugs altogether, although they may have ceased offending and reduced their drug use, testing in these circumstances can be destructive to the motivation of those who are reducing their drug use but are not managing to stop it completely. It would be helpful to consider those issues.
It is equally important that drug abstinence orders and drug testing are used in appropriate cases and where necessary with drug treatment. Spending resources on drug testing without making sufficient provision for drug treatment will not be an effective way of utilising them.
§ 5.20 p.m.
§ Baroness Thornton
My Lords, I should like to identify myself with my noble friend Lord Warner in welcoming the Bill and in supporting its general thrust to modernise criminal justice and court services. I particularly support the proposals outlined by the Minister in relation to sentences for those involved in crimes against children and the child protection measures contained within the Bill.
I wish to address my remarks to one part of the Bill; that is, to the creation of CAFCASS—as my noble friend remarked, it is a somewhat long and clumsy title—and, within that, to the proposals for mediation services which are contained in Part I, Clauses 11 to 17 of the Bill.
I should declare an interest as a long-standing supporter of and adviser to NCH Action for Children, which is the largest single volume voluntary sector provider of family mediation services, operating as it does seven services providing mediation in large areas of England and Wales. Several services also offer children support services and child contact facilities. Such services are funded in partnership with local probation services. I have drawn on its experience and on the excellent briefing with which National Family Mediation was able to provide me in explaining the importance of its work—of which NCH Action for Children is but a part—and the concerns for which it is seeking reassurance from the Minister.
As noble Lords will be aware, family mediation is a process in which trained and impartial mediators help those involved in divorce or family breakdown to communicate better and to reach solutions acceptable to them both for the future, and which are the best possible for their children. National Family Mediation is the umbrella body for 65 family mediation services in England and Wales, which currently see more than 6,000 families per year throughout England and Wales, of which around one-third are referred by the courts.
1321 As the Explanatory Notes to the Bill make clear, CAFCASS will assume the functions currently carried out by the Family Court Welfare Service, the guardian ad litem and reporting officer service and part of the Official Solicitor's Office. It will serve the Family Division of the High Court, county courts and family proceedings courts. It will safeguard and promote the welfare of children before courts dealing with family proceedings, provide advice and information to the courts and families, and, additionally, provide support to families. Everyone should welcome the creation of CAFCASS as the establishment of a consolidated child-centred service to the family courts which can be only beneficial to the well-being of families and children.
Clause 13 gives CAFCASS the power to make arrangements for other organisations to carry out specific functions on its behalf. It is intended that family mediation will be one such function, and National Family Mediation will be one of the organisations with which CAFCASS will make arrangements under Clause 13.
Family mediation services were initially established some 20 years ago, many at the initiative of local probation services concerned at the effect of divorce and lengthy legal battles on the children caught in the middle. In recent years, many family mediation services entered into contracts with their local probation service to provide family mediation at the initiative of the courts. This was part of the Home Office's commitment to probation services spending a proportion of their budgets on partnerships with the voluntary sector and undoubtedly contributed to the growth in the early 1990s of local services affiliated to National Family Mediation. More significantly, it enabled many disputes concerning children to be settled without the need for reports to be prepared by the Family Court Welfare Service, thereby saving significant resources for local probation services.
Many family mediation services now have contracts with the Legal Services Commission (formerly the Legal Aid Board). These provide payment—but, of course, only in respect of those clients who are financially eligible. While these arrangements will continue until the provisions of the Bill are enacted and implemented, transitional arrangements are being set in place so that the change to the new regime will occur as smoothly as possible. It is here that serious concerns arise.
National Family Mediation is finding that in this period leading up to the transfer of responsibility from the Home Office to CAFCASS, many family mediation services are experiencing severe cuts to their funding from what were Probation Service contracts. A survey of family mediation services carried out in February this year revealed a reduction that has already amounted to £103,000 for the network of services as a whole. This represents 10 per cent of the previous year's probation funding on family mediation work. In the past 12 months, funding by probation partners for NCH Action for Children has 1322 been reduced by £36,000. In addition, two services have been moved to what is called "spot funding" arrangements.
The financial impact of this change in funding patterns has served to undermine NCH Action for Children's ability to sustain its services. Historically, probation contracts have been for three years in order to facilitate service planning, growth and stability. Existing contracts are now for one year, negotiated in the autumn for the following year. Funding for the forthcoming year is, as yet, unknown. In these circumstances, forward planning for voluntary organisations to sustain this service is in jeopardy.
The reduction has also been exercised in a very inconsistent fashion, with some areas maintaining funding, others reducing it substantially and a small number cutting grants completely. It is most unsatisfactory for the services to find themselves in a position of financial insecurity at a time when they are required to sustain and adapt their provision over the next few years while the new CAFCASS infrastructure is developed.
Further, this coincides with the LSC plans to enter into long-term contracts with family mediation services based on the present level of funding. If current funding is dropping below the level at which the services are feasible, the financial basis of these long-term contracts will be unrealistically low. Altogether, this state of affairs makes financial planning very difficult indeed.
It is no exaggeration to say that, if matters are not improved and then stabilised, this invaluable service will be lost to the courts in the interim period before CAFCASS is set up. If this were to happen, the cost of re-establishing the family mediation service would be far higher than that of sustaining the current provision. It must be acknowledged that the Home Office, recognising that there is a problem, issued guidance as recently as 12th June with regard to probation funding, but I fear that this may not be enough.
In conclusion, my remarks are concerned with how we get from A to B. I seek an assurance that the Government have taken steps to secure partnership funding during the transfer in order that, at the end, we have a service which meets the needs that the Government have recognised in the Bill and which puts children and families at its heart.
§ 5.27 p.m.
§ The Earl of Listowel
My Lords, the Bill aims to increase confidence in the Probation Service and in non-custodial sentences; to unify and make consistent the three similar, though separately managed, services for the welfare of children within our court system; and to protect children from the appalling abuse from which many have previously suffered. It also purposes to reduce truancy, which greatly decreases the life opportunities of young people, puts children at risk of sexual exploitation and drug addiction and increases the instances of vandalism, public intimidation and 1323 crime. These are laudable goals. I share the concern of many noble Lords as to whether the Government have chosen the right means to deliver them.
I shall concentrate, however, on two areas of concern arising from my experience of working with young people. Is the Lord Chancellor's Department the office in which to place the children and family court advisory and support service? As I am sure we all agree, the Government were absolutely right to make the first priority of the new service the well-being of the child. Those who already serve children and families in the courts have a tremendously challenging job—and the guardians ad litem, the court reporting officers and the children's section of the Official Solicitor's Office have a high reputation for meeting that challenge.
Last week I spoke to a former child's advocate. She had moved from advocacy into research because she had not been properly supported. She had asked her employer, a charity, not to assign her to families with a history of violence towards women. In fact she was asked to interview a man whom she later learnt not only had such a history but was known particularly to hate articulate women in positions of authority, such as herself. I give this example to illustrate what can happen when a similar service to the one described is overstretched and to show the degree of personal danger that may be involved.
The Lord Chancellor's Department is of course greatly respected by all but it is far smaller than the Home Office. Can the noble and learned Lord the Attorney-General reassure the House that the voice of the Lord Chancellor's Department will be strong enough to obtain the funding necessary to maintain a high quality, well-supported court welfare service? It would be a great step backwards if staff were to feel under-resourced in the future and were to leave the service for their own protection.
We have the highest divorce rate in Europe and we can anticipate a rising incidence of family breakdown. The court is seldom a good place to solve family disputes. As Judge Thorpe recently intimated, most families might do better seeking counselling and therapy rather than legal redress, or indeed the kind of family mediation to which the noble Baroness, Lady Thornton, alluded. When a couple fall out they need to be helped to recognise their new role as parents pure and simple. In that context, is it helpful to bring CAFCASS into the purlieu of the Lord Chancellor's Department? In communicating to parents that family disputes are better settled out of court, would it not be better for the service to go to the Home Office or even to the Department of Health?
As the noble Baroness, Lady Seccombe, went to great lengths to describe, the Bill makes welcome proposals to prevent unsuitable people from working with children. I beg the noble and learned Lord the Attorney-General, as he considers these measures and the regulations pertaining to them, to consider the need to encourage people, particularly young people and students, to consider voluntary work with children. I urge that as someone whose interest in 1324 children and families was greatly encouraged by my first experience of service in the community with children 15 years ago.
A survey for the National Centre for Student Volunteers found that 75 per cent of former student volunteers found work in the area of their community service and that the career of 40 per cent of them was completely unrelated to their choice of academic study. Clearly then voluntary work is an important means for students and young people to find their vocation. The most important protection for children is to have staff for whom childcare is a calling. Will the Minister undertake to do all in his power to integrate the new protections that he is providing under the Bill into a system which allows the absolute minimum delay in the processing of police checks? Young people have many demands on their time. There are more lucrative careers than the care of other people's children. It is vital that young people can taste the rewards of such work; to see it not as a last option but as a most fulfilling employment.
Such experience can also be the opportunity to know first-hand the children on society's margins, be they the children of the state, the children of sink housing estates or mentally or physically disabled young people. So this knowledge is immensely valuable. I hope that the noble and learned Lord the Attorney-General can offer reassurance on that point.
§ 5.34 p.m.
§ Lord Thomas of Gresford
My Lords, there are a number of matters in the Bill which we on these Benches must welcome. The extension of electronic tagging, due to the developments in technology, will indeed make it possible for offenders riot merely to be kept within their own homes but to be prevented from making a nuisance of themselves elsewhere. I am glad to see those provisions in the Bill.
Similarly, the family court advisory service has been long awaited and is welcome. However, I share the reservations of my noble friend Lord Phillips of Sudbury about an advocate of that service also appearing as a witness in the same case. One wonders where the interests of the child will be in such circumstances.
The provisions for the protection of children are extremely welcome. Those who come from north-east Wales, such as the noble and learned Lord the Attorney-General, cannot have anything other than a great deal of sympathy for any measure which prevents sex offenders having any contact with children. My only reservation about it is that we have as a society demonised sex offenders. They comprise a very broad category of people, from the fumbling adolescent who commits an indecent assault to the persons who committed the atrocities in Bryn Estyn and elsewhere in North Wales. The provisions in the Bill are welcome.
It is when one turns to other aspects of the Bill that reservations set in. As I listened to noble Lords today, I was musing about the punishments that used to be inflicted by our courts; how people would he put to 1325 death by hanging; how they would be transported; how they would be imprisoned with hard labour. People would be flogged and whipped. I recall my father, who was a policeman, telling me how deeply upsetting it was for the station sergeant who had in cold blood to whip youngsters pursuant to a court order.
We moved away from that. We developed alternative methods of dealing with young people. We realised as a society that many of the faults that we see in youngsters really reflect faults in a wider society for which we, together, are responsible. We adopted probation. The noble Baroness, Lady Stern, referred to probation officers acting from a strong ethical basis. That is the ethos of the Probation Service. With that was coupled the judicial discretion—a discretion to which the noble Baroness, Lady Seccombe, referred—for magistrates and judges to impose sentences commensurate with the offence and commensurate with the degree of responsibility of the offender before the court. Probation has been part of the sentencing of the courts, as have, in the past 25 years, community service orders.
It may surprise those on the Government Benches when I say that probation in this country has been an overwhelming success. It is a system which has been developed. Anyone who has contact with the criminal justice system—as I, declaring an interest, have—knows that many youngsters who once went astray are today leading perfectly normal lives with families, jobs and careers, thanks to the intervention of the friendly and caring probation officer who gave them help at a very difficult time in their lives. Now, however, the Government call this, to use the words of the Minister, "a soft and ineffective option". Contrary to all the success of the Probation Service, which the Government ritually and frequently commend, it is now "a soft and ineffective option". The change was spelt out by Mr Paul Boateng in Standing Committee G when the Bill was going through another place. He said:We are moving away from a social work-type befriending model, and no one should be under any illusions about that. … we intend to focus the National Probation Service on law enforcement".—[Official Report, Commons Standing Committee G, 4/4/00: col. 33]Mr Boateng also said, at col. 36:No one should be under any illusions about the nature of the change and of the culture shift that we expect: it is a philosophical change".When the noble Lord, Lord Warner, refers to the philosophy that lies behind the opinions expressed from these Benches and from those of the Official Opposition, he should appreciate that the "philosophical words" have come from a Government Minister in another place. It is the philosophy of the Government that has been changed quite deliberately.
I agree entirely with the noble and learned Lord, Lord Ackner, when he referred to "gesture politics". We have seen the politics of gesture exercised by the Prime Minister. Indeed, we have seen electioneering as we approach another general election. Both sides have 1326 been vying with each other to prove how "tough" they can be—that word was used three times by the Minister during his opening remarks on the Bill.
However, I think it would be a great deal more "tough" for the Government to demonstrate leadership by going against a press commentary that seeks to whip up public opinion and to change that climate of opinion so that people come to realise that, for the community and for individuals within the community, the greatest safeguards against crime are rehabilitation and reform. The best way to prevent crime is not to lock people away for lengthy periods—they will eventually come out of prison, so the problem is merely pushed back—but to use such time during which people may have their liberty taken away by doing something positive; namely, by using the resources of the state to educate and train those who have offended.
§ Lord Warner
My Lords, does the noble Lord accept that difficulties may be encountered in trying to alter public attitudes towards crime when we are faced with the kind of situation I outlined in my contribution? Nine out of 10 people sentenced to community service orders breach those orders not only once or twice, but three times. With such high levels of breach, it will be difficult to persuade the public that action has been taken and that changes will be made.
§ Lord Thomas of Gresford
My Lords, I am grateful to the noble Lord. However, I should like to be able to examine the workload for each probation officer, as well as that for prison officers who need to contend with 65,000 or more prisoners housed in buildings that were designed to accommodate far fewer people. The problem is that the resources are going in the wrong direction. As I said, I should like to see the Government demonstrate leadership and persuade the people of this country that rehabilitation and reform are the only way to proceed.
As regards the structure of the new national probation service, I concur with the criticisms made by my noble friend Lord Phillips of Sudbury. How will local strategies initiated by local people be developed? The Minister used those words to describe the new regime. However, the Home Secretary will appoint the chief officer, who may be at odds with the local board. It is inevitable that clashes and difficulties will emerge from that kind of system. What is the need for such centralised control? We have heard the word "fragmentation" used in this context. According to the Government, the Probation Service today is "fragmented". However, that reflects the philosophy of Edward I when he set out to conquer Wales and Scotland. He felt that the United Kingdom was "fragmented". I do not believe that there is any need to centralise. I strongly support local autonomy and putting responsibility into the hands of local boards to carry out what they believe to be appropriate and correct for the people they know in the areas they know.
The noble and learned Lord, Lord Ackner, referred to the imposition of a prison sentence as once being considered the decision of last resort. Now, 1327 imprisonment is clearly the decision of first resort. I believe that we are following the American path here. More than 2 million people are currently imprisoned in that country, compared with 65,000 in this country.
I turn to the provisions dealing with drug abuse. My noble friend Lord Dholakia referred to "drug-ridden prisons". That comment brought to mind a person I represented in a manslaughter case. He was a heroin addict. It was alleged that he had injected his girlfriend with heroin. I asked him what it was like to be an addict, to be imprisoned and thus without access to heroin. He said, "There is no problem at all. It is easier to get hold of heroin inside prison than it is to get it outside". That is a chilling thought upon which noble Lords should reflect. We are sending people to drug-ridden prisons rather than maintaining them in the community where they can keep their jobs and maintain their responsibilities to their families and to the community.
It has been suggested that drug abstinence orders should he issued. That sounds all well and good, but they will be quite useless unless resources are made available for treatment. The Minister has acknowledged that there is a shortage of adequate drug treatment facilities in this country. As the noble Baroness, Lady Prashar, pointed out, a drug addict cannot stop taking drugs. If a drug abstention order is issued without support, it will be bound to fail. What will happen then? The offender will come before the court and he will then be sent to prison—to a drug-ridden prison where it is easier to acquire heroin than it is on the outside. Not only that, but by executive diktat issued under other legislation that we debated last week, the Government would like to see such an offender and his family lose their entitlement to benefits under our social security system.
Prison has been recommended not only for drug addicts, but also for parents. Under the new proposals, parents who are incapable of getting their children to school in the morning will go to prison for three months. What that will do to benefit the child, I do not know. As the noble Baroness, Lady David, pointed out, such a child will be taken into care. Alternatively, that child will be thrown out of the family home. I have had to deal with people who have been thrown out of their homes by their parents in similar circumstances.
It is claimed that these proposals are part and parcel of the youth justice reforms. However, to echo the noble Baroness, Lady Seccombe, perhaps I may ask how many parenting orders have been made. How many curfews for 10 year-olds have been imposed? How many anti-social behaviour orders have been issued? These are gimmicks that have been tried out by the Home Office, no doubt supported by the noble Lord, Lord Warner, when he was a Home Office special adviser. All those ideas have failed to make any significant impact. In the mean time, fewer policemen are patrolling the streets and violent crime is rising. Despite that, even more gimmicks are being introduced by the Prime Minister without the benefit of any consultation. Over the weekend I was travelling extensively and I heard overwhelming laughter up and 1328 down the country at the suggestion that policemen should drag drunken louts to cashpoints to relieve them of £100.
The Government say that these measures are being tried in order to protect victims. Victims are to be at the heart of the process and at the heart of the Government's efforts. However, I shall take the words of the Government seriously only when they restore the link between common law damages and criminal injuries compensation paid to the victims of violent crime. The tariff system was introduced by Michael Howard, the then Conservative Home Secretary, after it was rejected as an illegal move in the courts and after it was attacked in this House by the noble and learned Lord, Lord Ackner. The then Shadow Home Secretary, Mr Tony Blair, opposed it bitterly in another place. It was opposed by the current Home Secretary, Mr Jack Straw. But, after three years, what have the Government done to restore justice to victims? Absolutely nothing.
As I have said, parts of the Bill are to be welcomed, but much needs to be done to remove what I regard as positive excrescences from its content.
§ 5.49 p.m.
§ Baroness Blatch
My Lords, first, I thank the Minister for setting out the details of the Bill. At the outset, I declare an interest as president of the Association of Probation Managers. Perhaps I may say also to the noble and learned Lord. Lord Williams of Mostyn, how much I look forward to working with him over the coming weeks. I have been living under a misapprehension about the workload of the Attorney-General. The noble and learned Lord graces this House almost daily with his presence, from which we all benefit, and he takes a close interest in much of the business taken on the Floor of the House. Now, as previously, the noble and learned Lord is helping out his noble friend Lord Bassam, and for that we are grateful.
Like so many organisations and respondents to the consultation that has taken place, we support some measures in the Bill. However, like other noble Lords, we find that many questions are begged and much clarification is required. Subject to the will of the House, I hope that noble Lords will accept some revision of the Bill during its passage through this House. Where measures in the Bill are designed to tackle crime and where they are deemed effective and enforceable, they will have our support. However, before referring to specific aspects of the Bill, I want to press the Minister on two other, related matters.
When pressed on why the Government had been more proactive when dealing with football hooligans who travelled to watch Euro 2000 football matches, the noble Lord, Lord Bassam, lost no opportunity to blame Conservative Back-Benchers in another place for preventing a Private Member's Bill becoming law. The details of the accusation are debatable, but that is not my point. In answer to a Question in this House, the noble Lord said for the record that, had the 1329 measure to remove passports from known hooligans to prevent them travelling overseas been on the statute book, the Government would have used it.
The Government have entered their fourth year in office. If the Home Secretary had really wanted such a measure, the Government had only to include it in one of the many Home Office Bills that have passed through both Houses over the past three years; or the Home Secretary could have taken over the Private Member's Bill, which would have ensured its passage on to the statute book. Is it the Government's intention to bring forward an amendment to this Bill? If not, I am confident that such an amendment will be tabled, probably in Committee.
Secondly, it can hardly have gone unnoticed that the Prime Minister has once again chosen to discuss policy not in Parliament, not even in this country, but in Germany. This time, specific measures to deal with drunken and/or drugged hooligans and their behaviour on our streets are being contemplated, aloud, and before any consultation with interested parties. It is suggested that individuals are forcibly taken to the nearest appropriate cashpoint to withdraw £100—that is, if they do not have a spare £100 in their pocket.
There are so many questions that one must ask about the practical implementation of such a measure. Hooligans usually operate in groups. Who should be arrested—all of them? Some may, some may not, have the ability to pay. Some may respond without resistance; some may not. Who will determine the level of behaviour that would trigger direct punishment by the police? Who will resolve on-the-spot disputes about who is displaying the offensive behaviour? What is the policeman expected to do with the cash when he has collected it? Most significantly, where are the numbers of policemen or police women who can afford to be distracted from their duties to deal with the time-consuming business of marching one or more drunken hooligans to the bank? How would accountability for such direct punishment be dealt with? Will the Minister tell the House whether such a measure is likely to be added to the Bill, or what the next steps are likely to be?
Not only is the Bill being discussed against the background of much hand-wringing within the Home Office; it also coincides with a rise in street crime and a serious fall in the number of police officers. In London, the situation is very serious indeed. The Home Secretary has frequently commented that crime doubled under the previous government. What the Home Secretary conveniently does not say is that crime rose during the whole of that time throughout the western world. However, under the previous government, the tide was turned: the number of policemen was expanded by 16,000, and crime fell in each of the last four years of the previous government's term of office. However, since 1997, police numbers have declined and crime is increasing. I understand that we may learn this week that street crime continues to rise. Forgive my cynicism, but I cannot help feeling 1330 that yet another No. 10 summit, following the Prime Minister's visit to Germany, and the efforts of the spin doctors have more to do with masking a growing crisis.
The creation of a national probation service and a free-standing children and family court advisory and support service are to be welcomed, although there will be matters of detail to be explored in Committee and on Report. I want at this stage to pledge my support—and to express my long-standing support—for the Probation Service. My complaint about the Probation Service when I was responsible for it was that those in the service were their own worst enemies. They did a thunderingly good job, and given the kind of people with whom they had to deal one would not have wanted to be in their place. Sadly, they did not stand back sufficiently to tell the world about what they were doing. I believe that that has changed—it was certainly changing before I left office. More and more, the service was inviting the public in, talking with the public, and displaying the way in which it was working and how effective its services were.
Clause 15 allows staff of the family courts advisory service to conduct litigation in all courts with rights of audience. Clause 16 allows for CAFCASS officers to act as witnesses. That has been referred to in the debate. There is huge concern about the proposal, in terms of non-lawyers representing children facing legal representation for other parties as well as in terms of conflict of interest, where an officer acting as advocate for the child is then questioned as a witness. The interests of the child should be safeguarded; however, I am not sure that the Bill as drafted does so. I hope that the noble and learned Lord will be able to clarify, and if possible allay, our concerns. If not, we shall return to this issue.
There is also concern over paragraph 1(5) of Schedule 1 in regard to the position of the Chief Probation Officer nationally and the local chief officers. They cannot serve two masters. If they are not employed by the boards and they are accountable to the Home Office as set out in the Bill, local accountability and line management will be affected and I am afraid that confusion will reign. I hope that the Minister will consider amendments on this issue.
As the noble Lord, Lord Phillips of Sudbury, said, "local boards" is a frightful name. It does nothing to convey the work of the Probation Service at a local level. I hope that it will be changed—and I hope that it does not give way to the acronym "LOBs"! The ownership and management of property as proposed, based on a much-criticised report, is also causing concern. The boards, if they are to be effective, should have control over the staff, finances and premises. To regard the control and management of property as a distraction, as the Home Office does, is to misunderstand and to confuse completely the interaction between procurement and the use of buildings with the work of the service on the ground as a justice agency managing difficult and potentially dangerous people. Special factors, such as group workrooms, reporting centres, the isolation of difficult and dangerous people, the need for security systems, 1331 and the juxtaposition of premises to neighbours, plus the all-important relationship to landlords, are crucial. Local input, control and ownership of decisions are essential. I hope that the Government will rethink this matter and that they will take note of the strong case put by the Central Probation Council.
There are many questions to be addressed on the financial arrangements. First, when additional powers are conferred on the Probation Service, it must be given the resources to deliver that service effectively. Also, local authorities presently have borrowing powers on behalf of the Probation Service. Is the Minister able to tell us whether, when that arrangement ends, borrowing powers will be extended to the boards? What flexibility and powers will boards have to buy and sell services from and to other bodies; for example, partnership organisations, and the voluntary, statutory or commercial sectors? These are all daily activities for the Probation Service. We shall consider the tabling of amendments on these and other related issues. The stability of the service as a result of these changes is important. Therefore, any further reorganisation, whether of the service as a whole or the redrawing of boundaries, should be subject to primary legislation.
We shall examine the very considerable central control and powers of patronage proposed for the Secretary of State. I note that in another place Mr Paul Boateng said that any move to alter or restrict these powers,Would Constitute an undue fettering of the Secretary of State's discretion".—[Official Report, Commons Standing Committee G, 11/4/00; col. 83.]I suggest to the right honourable gentleman that that is for Parliament to decide.
I return to family court issues. The National Family Mediation Service, which was touched on by the noble Baroness, Lady Thornton, seeks an assurance that the Government will secure partnership funding during the transfer of assets from the Home Office to CAFCASS. It is also concerned to know how funding is to be assessed to ensure that there are adequate resources for referred family mediation in each conurbation and how the funds are to be allocated.
We welcome the Government's acceptance of our proposal to include assault occasioning actual bodily harm in the list of qualifying offences in Schedule 4. I also look forward to the Government fulfilling their promise to my honourable friends in another place to include amendments which will increase the maximum sentences for child pornography offences. We shall want to consider further the arrangements for disqualification orders. In particular, we remain concerned that they are be used only for criminals who are sentenced to 12 months or more. Your Lordships will be aware of the high profile case of the singer Paul Gadd, better known as Gary Glitter. Despite being in possession of thousands of sickening images of children, he received a sentence of just four months and so would not have been eligible for a disqualification order. The arbitrary 12-month cut-off includes no discretion for judges to impose disqualification orders on those sentenced to less than 1332 that. As my honourable friends said in another place, it might be better if such a discretion was on the face of the Bill.
We also believe that the list of offences in Schedule 4 should include dealing drugs to children. We shall want to look further at the range of occupations from which offenders will be disqualified. Is the Minister in a position to say anything about plans to merge, or not to merge (as the case may be), the inspectorates of prisons and of probation? Could the idea have anything to do with the removal of Sir David Ramsbotham, the current Chief Inspector of Prisons? Does the Minister accept that the two services are sufficiently important and distinct to warrant separate inspectorates and that consideration should be given to an independent inspectorate for probation?
As was made clear in another place, the Opposition support the Government's proposals on the drug testing of criminal suspects but are concerned that they may not go far enough. The other place debated at length the issue of testing for class B as well as class A drugs. Your Lordships will doubtless want to explore that issue in Committee.
Another concern is that the list of trigger offences in Schedule 5 is too narrowly drawn. We accept that drugs are a major factor in property crime, but they can also play a part in violent crime. In another place my right honourable friend Ann Widdecombe referred to the case of Christopher Tilling who was gaoled for 12 years for manslaughter after setting fire to a house and killing a seven year-old child in return for £200 to feed his drug habit. If the Government are to break the link, as they put it, between drug habits and crime—we do not dispute that aim—they should look at extending the mandatory testing provision to all serious crime, not just acquisitive crime.
The Government amended the Bill in another place to conform with the decision of the European Court of Human Rights in the case of Thompson and Venables. We continue to grieve for the family over the murder of their small son Jamie. The nation felt a sense of revulsion at such a dreadful crime, the effects of which are still felt after a decade. However, we remain concerned about Clause 56 which was not part of those changes. The Government will need to provide an unequivocal commitment that young offenders aged between 18 and 20 will not be dumped with older, hardened criminals in adult prisons. We shall seek to make clear the Government's intentions in this vital area of penal policy.
In a debate in this House on 10th April the Minister agreed (at col. 9) with my right honourable friend Michael Howard that prison worked. However, that contrasts with the early release scheme introduced in the Crime and Disorder Act. More than 2,000 criminals have now been released before the half-way point of their sentence. We welcome the belated change in Clause 60 to exclude sex offenders from that scheme, which was called for two years ago, but we disagree with the fundamental objective of the scheme which is to give convicted criminals a get-out-of-gaol-free card. Those sentenced to six months are being 1333 released in six weeks. Thousands of robbers, burglars, violent criminals and drug dealers are being granted the privilege of special early release. How can it be honest, transparent or just for criminals convicted of some of the most serious crimes, including manslaughter and attempted murder, to serve less than half the sentence handed down by the judge? We shall table a number of amendments in Committee. Your Lordships should be in no doubt about the strength of the Opposition's feelings on this matter. On return to office we have pledged to abolish the early release scheme.
Turning to Clauses 38 to 40, we believe that the renaming of the community orders is change for the sake of change. Much has already been said on that matter. As to Clause 41 which is concerned with exclusion orders, can the Minister explain to the House whether the tagging and tracking equipment is sufficiently developed and technically robust to be used on offenders who are forbidden to enter a specified area?
As to Clause 42, can the Minister tell the House whether rehabilitative treatment will be a condition of a drug abstinence order? That point was made by many noble Lords, including the noble Baroness, Lady Stern, in an excellent speech. Without some form of assistance to break the habit of drug taking, the failure rate is certain to be even higher.
I turn next to Clause 48(4) on page 33. Referring to paragraph (b), can the noble and learned Lord clarify, by giving examples, what constitute "exceptional circumstances"? If an additional 25,000 people go to prison, which I understand is the estimate of the Home Office, is that cost included in the financial appraisal? If so, I have not been able to detect it.
As to paragraph 18 of Schedule 1, will the Minister consider the strengthening of the complaints procedure?
I assume that the rationale for the increase in fines for failure to attend school is to introduce the penalty of custody, as was suggested by my noble friend Lady Seccombe. Hardly anyone—I believe no one has been fined the maximum of £1,000. Therefore, increasing the penalty will only increase the likelihood of a breach, which will then give rise to an increase in custodial sentences. Is the total cost of that taken into account, and is it the most effective way to deal with these mothers?
There is not time for me to speak in more detail about breaches of community sentences which will attract custodial sentences. However, as suggested by the Association of Chief Probation Officers, if there was greater certainty that a return to court would follow every breach, that a hearing would take place without delay, that appropriate penalties, including prison and curfew orders, would be imposed and that every breach would attract a penalty, the public would be better protected, and repeat breaches would probably be reduced. It is not just the Probation Service that is at fault here. I am aware that conscientious probation officers who tried to carry out 1334 that level of enforcement have taken young people back to the court and the magistrates' response has been, "Are you saying that you have brought this young person before us simply because he arrived home last night one hour late? Don't waste our time". If the Probation Service is to do its work, it must be supported by the courts as well.
The approximate cost set out in the financial memorandum is £457 million. However, I suggest that, within that, the cost to the Probation Service of these additional responsibilities is underestimated. As to the estimate of £100,000 for the protection of children measures referred to in paragraph 154 of the Explanatory Notes, that is extremely optimistic. It would just about pay for one year for the services of Alastair Campbell in No. 10; and that does not include his on-costs.
The assumption of a 50 per cent deterrent factor as a result of imprisonment for breach of a community sentence order is too optimistic. I agree with the noble Lord, Lord Dholakia. That figure has been built into the savings factor. According to paragraph 164, all the extra funding, another £0.5 billion, is to come from the departmental budget. Is the noble and learned Lord able to say whether it is new money; or is to be taken from the budget? If so, which services will forgo funding as a result of the funding of these measures?
Finally, the report of the Delegated Powers and Deregulation Committee recommends that powers in Clauses 41, 42, 45 and 46, which allow for amendment of the Bill to increase the severity of sentencing, should be omitted. I agree. For such serious changes, primary legislation is the appropriate vehicle. If the Government do not heed this advice—I believe that the House will display its usual concern it would be a break with the convention of this House not to accede to the considered deliberations and advice of that committee, the work of which is valued greatly by your Lordships.
As has been said by so many, the new national probation service and the separate child court welfare service are to be welcomed. However, the noble Lord, Lord Phillips of Sudbury, described well the degree to which the Bill is centrally controlled and centrally driven, especially in relation to the national probation service. I agree. That has come to be the hallmark of the Government; Bill after Bill passing through this House is testimony to that. I predict that many days will be spent revising and improving the Bill. I look forward greatly to being back on Home Office territory.
§ 6.11 p.m.
§ The Attorney-General (Lord Williams of Mostyn)
My Lords, I am grateful for the thoughtful tone of the debate. It was set at the outset, if I may say so respectfully, by the noble Lord, Lord Windlesham.
A number of noble Lords have referred to the value of the Probation Service. I hope that in the past I have shown myself to be as powerful a supporter of its good work as the noble Lord, Lord Windlesham. I share one thing at least in common with the noble Baroness, 1335 Lady Blatch: we both have responsibility for probation and prisons. When one works in that field, one cannot but feel a sense of humility about the work that is done.
I should say immediately that my noble friend Lord Bassam did not say that community sentences were a soft and ineffective option. He said that they had often been regarded as such; and perception is sometimes important. It is also true, unfortunately, that the outcomes in different probation areas have been patchy. As my noble friend Lord Warner pointed out, in some areas breach after breach goes without sanction. In other areas the outcome is much better.
Reference was made by the noble Baroness, Lady Blatch, to the two inspectors, Sir Graham Smith and Sir David Ramsbotham. Sir Graham Smith was the first to insist that national standards should be set and adhered to. He was the pioneer in the document Evidence-based practice, and had the foresight to say that that document would be valuable for three years and we must then scrutinise it again. I have always said that Sir David and Sir Graham were admirable public servants. I have said that on every public occasion when Sir David has been present with me on the platform. I always encouraged him to be an irritant, although I never found him irritating. It seems to me that the purpose of an inspector is to be an irritant. I say this about both of them. They are notable public servants and both had their terms extended: Sir Graham when I was probation Minister and, shortly after I left—there is no necessary connection—Sir David's term was similarly extended. So any ill-informed comment in the press is grossly unfair to both those public servants, who have done, in my opinion, excellent work.
On these occasions I am always reminded of the gloomy baggage that invests the word "but". Almost all of your Lordships have said that this is quite a good Bill—and then I wait for the inevitable "but". Most noble Lords have said that it has much excellent quality. I should like to follow what I have sought to do in the past. If amendments are consistent with the underlying philosophy and capable of improving the Bill in that context, I am more than happy to approach these matters with an open mind. My noble friends Lord Bach and Lord Bassam and I are perfectly happy to have meetings on any convenient occasion to discuss specific worries or queries that any of your Lordships has. We want to make the Bill as good as possible.
Many questions have been raised. Some are quite deep. I should like to give a good deal of thought to the questions and consider answers in correspondence in due time. Whichever noble Lord I reply to, I shall ensure that a copy is sent from the Home Office (I intrude somewhat into the territory of my noble friend Lord Bassam) to all noble Lords who have spoken; and copies will be placed in the Library of the House. However, I shall do my best to deal with particular aspects.
No title can be given to any new organisation which is free of possible misunderstanding. As your Lordships constantly referred to the children and 1336 family court advisory and support service, I reminded myself that it is spelt CAFCASS and riot "Kafka's". (I felt that I should say that because someone is bound to pick it up!) CAFCASS offers a substantial opportunity for the future. A number of noble Lords referred to it as being a possibly enormous significant advance.
My noble friend Lady Thornton asked about start-up costs. The funding for those has been identified. The transfer of funds for the new service will reflect the historical budgetary spend by the three amalgamating services. Future funding—I say this more generally about other questions put by the noble Baroness, Lady Blatch—will depend on the outcome of the current government spending review and I cannot pre-judge that, although I think that it has been fairly widely published in the newspapers that announcements are imminent this month or early next. I cannot go beyond that at this stage.
The Lord Chancellor sees CAFCASS as critically important in looking after the interests of children. The noble Earl, Lord Listowel, asked the Lord Chancellor was likely to be a doughty fighter for necessary funding. All I can say, without breaching confidences, is that at any funding discussion between colleagues which I have attended with the Lord Chancellor and the Home Secretary, the Lord Chancellor has normally been successful. If I were a betting man (which I am not) and I had a spare £5 (which I have not) I would place it on the Lord Chancellor.
One of the questions, raised initially by the noble Lord, Lord Phillips of Sudbury, was the apparent tension between Clauses 15 and 16 in the advocacy rights of a non-legally qualified employee of CAFCASS and the possibility of cross-examination. Clause 16 makes plain that cross-examination cannot be available simply because the advocate is acting as advocate by virtue of Clause 15. I hope that that is a reassurance.
A question was raised about a possible tension between the interests and the desires of the child. Many of us, being parents, have frequently understood that there may be a tension between the views of the child and his or her best interests. That is commonplace in the minds of professionals who have to deal with children. One cannot say dogmatically that the child's views must always be paramount because it is part of the wider context of evidence upon which one draws to see where the best interests of the child lie. We are determined that these two apparent tensions can he reconciled; and the professionalism of the CAFCASS will have great input into, I hope, successful outcomes.
A number of noble Lords referred to the training of CAFCASS staff. The CAFCASS project team is working at present. It is seeking the advice of organisations representing the judiciary, the legal profession, voluntary agencies and court users. CAFCASS will work within national standards and a national training programme and will have a system of independent, regular inspection.
That comment about taking the view of the judiciary brings me conveniently to a question raised by the noble and learned Lord, Lord Ackner. The 1337 Home Secretary is in continuing, current correspondence with the Lord Chief Justice. It would not be appropriate for me to read out the correspondence at this stage without having the express permission of the Lord Chief Justice, but I can say that in the Home Secretary's last letter, dated 30th June—which is why I am able to say that it is current correspondence—his manuscript note at the bottom says:I am of course happy to discuss this with you further if you or [Lord Justice] Rose continue to have concern".Some of the concerns expressed relate to Clause 48, which I come to immediately. Clause 48 has been misconstrued. Clause 48(3) introduces Section 2A and has a filter, to which I think none of your Lordships referred. It states:Sub-paragraphs (2) and (3) below apply if the responsible officer is of the opinion that a person aged 18 or over…has failed"—and I underline these words—without reasonable excuse to comply with any of the requirements of an order".The dual filter is there. It can only refer to someone over the age of 18 years and the responsible officer has to come to the informed conclusion that it is a failure without reasonable excuse. A warning is then given. New Section 2A(5) states:A warning under this paragraph must—(a) describe the circumstances of the failure".Therefore the offender is in no doubt. It has to state that the failure is unacceptable and it has to say that, within the next six or, as the case may be, 12 months, "if you fail again, you will be liable to be brought before a court".
I respectfully suggest that that is not unreasonable, unless the public is to continue to believe and to hold the perception—to which my noble friend Lord Bassam referred—that this is soft and ineffective. One therefore has to have a breach or a failure without reasonable excuse; the offender has to be over 18; the warning has to be given; then back to court where, unless there are exceptional circumstances, imprisonment must be ordered. Not for three months, however. One has to look at the words. The term is, "not exceeding three months". There will not be 25,000 extra persons in prison at any one time. I respectfully suggest that it pays to read Clause 48 with care before coming to alarmist conclusions.
Perhaps I may turn to the observations of my noble friend Lady Stern on Clause 2. I think I may call her my noble friend because we almost always agree and, when we disagree, it is normally because she is wrong. I am now ducking! What Clause 2 says is wholly unexceptionable and indeed to be commended:This section applies to—1338 What is an officer of a local board? That is found in Clause 4(4) which states that,
- (a) the functions of the Secretary of State under this Chapter:
- (b) the functions of local boards, and officers of local boards, under this Act or any other enactment".any member of the staff of a local board appointed to exercise the functions of an officer of the board, and(b) any other individual exercising functions of an officer of a local board".What must they do? In Clause 2, when they are carrying out their work, either as Secretary of State or functions discharged under him, or when they are discharging the functions of local boards, they must do three things. That is hardly surprising or objectionable. Clause 2 continues:In exercising those functions the person concerned must have regard to the following aims—I find nothing objectionable or strange there at all—particularly as I agree with the distinct sub-text of my noble friend Lady Stern and indeed what was said by the noble Lords, Lord Thomas of Gresford and Lord Dholakia. In some circumstances the protection of the public and the reduction of reoffending may depend on the rehabilitation of offenders; but not in all circumstances.
- (a) the protection of the public:
- (b) the reduction of re-offending;
- (c) the proper punishment of offenders".
This Bill is not the first on the agenda set out by the Home Secretary. It is building on the work of the Crime and Disorder Act. I paraphrase the philosophical underpinning of that Act in this way. The purpose here is to intervene early; not as was foolishly and almost childishly described in some newspapers as the Home Secretary wanting to send children to prison at the age of 12. It is to stop them falling into crime so that they do not become persistent offenders at the ages of 17, 22, 25, 36, 47—until they mature or just give up committing crime.
Another purpose is to make community sentences not only effective but apparently effective. They are sentences. They are necessary consequences of crime having been committed. It does no one any favours, least of all the young offenders, for them to think that they can breach, and breach, and breach again.
I did not know what my learned friend Lord Warner was going to say, but if what he describes is correct—and we all know it to be correct—letting a young offender offend, breach and breach again, for half a dozen times without an effective sanction, is actually doing them a serious harm. It is also doing the public a serious harm.
The noble and learned Lord, Lord Ackner, urged us not to treat this as a political football, and I hope that I am not doing so. With the best will in the world, however, I cannot see that a discussion of football hooligans and cash points is within the ambit of this Bill. In answer to the question as to whether it is to be amended in that connection, I do not believe that it is.
The typical characteristics of the young offender are: coming from a home which is dysfunctional; with a life which is not ordered; without education; without employment; and, significantly, some abuse of drugs or alcohol. The belief we have—perhaps shared by many of your Lordships—is that the vital component 1339 which is lacking is order: the order which comes from school, from education, from discipline. We do not do very well at the moment. We insist that children are educated from the age of four to 16, at colossal expense. Those of your Lordships who have visited prisons will know that two-thirds of the young men in prison cannot read and write sufficiently well even to complete a job application.
This is a determined strategy. It will not please everyone. As I have said on earlier occasions, it is a matter of perfect indifference to me as to whether a person is a lawyer or whether they live in Hampstead. In t he past I have pleaded guilty to the first charge but never to the second. I would rather go to the message, however, and not to the messenger.
I believe that what the noble and learned Lord, Lord Ackner, said, echoed by the noble Lord, Lord Thomas of Gresford, is right: we ought not to make a political football of these matters. It may of course be possible to improve the Bill. I repeat—and hope that it will be accepted—that if there are amendments by way of improvement, consistent with the general philosophy, we will look to them.
The areas which it seems to me have been commended by your Lordships in this Bill are CAFCASS—with general if not with perfect applause—and the area which deals with children. I ought to say to the noble Baroness, Lady Seccombe, that sitting as a justice of the peace obviously retards the ageing process. I was amazed to hear her say that she had had a letter requiring her no longer to sit! Some queries are raised as to whether Clause 48 is too strict or rigorous. I do not think that it is. After all, a community sentence, as described by my noble friends Lord Bassam and Lord Warner, in a sense is an alternative to imprisonment. If it is to be an alternative, it has to be a serious alternative. It is not to be regarded as not a sanction by way of punishment. I know the judicial argument, expressed in its purity by the noble and learned Lord, Lord Ackner, that this is in some way interfering with the independence of the judiciary. I fundamentally disagree. It is taking away some of their power, but it does not affect their independence as judges. We have mandatory sentences and I agree that they are limited. Here one has a parenthesis by way of escape in Clause 48.
There is no doubt that we shall debate these matters at some length. I believe that that is appropriate because—and I say so without disrespect—it is what your Lordships do best. There is a better quality of informed debate in this House than in some other places—and of course I am not thinking of the House of Commons.
A number of questions were asked about the Delegated Powers and Deregulation Select Committee, in particular by the noble Lord, Lord Dholakia, and they were reflected in subsequent speeches. The Select Committee said that it was not happy with the measure but that if it is in the Bill it should be by way of affirmative resolution procedure. We have examined the issue and we believe that the Select Committee is right; the powers should be subject 1340 to the affirmative resolution procedure. We shall table amendments to the Bill so that the alteration of maximum and minimum periods of community orders are subject to the scrutiny of this House through the affirmative resolution procedure. I hope that your Lordships will accept that as an appropriate and prudent response to the questions which were raised in particular by the noble Lord, Lord Dholakia.
Furthermore, we considered that we should go further. We intend to extend the principle by amending the Criminal Justice Act 1998 so that changes to the period relating to curfew orders are also subject to the affirmative resolution procedure. If one makes the first change, one should go further and make the second. There are precedents for the alternative. We have thought about the issue carefully and I was personally grateful for the courtesy of the noble Lord, Lord Alexander, in indicating the preliminary view of the committee. I hope that your Lordships will consider that to be a decent response to those issues.
Many other questions were raised today. As I said at the outset, I want to give thought to some of the deeper ones and undertake to send the letters quickly. Fine questions as to finance may take some research. However, others, such as the borrowing powers, I can answer straightaway: they are specified in the Bill as being subject to the Secretary of State's powers of direction.
I am conscious that my 20 minutes has run out but perhaps I may make one final comment. As regards local accountability, I recognise that your Lordships' concerns are of worth and validity. However, I submit that they are met in Schedule 1 because paragraph 2(4) on page 46 states:Regulations may make provisions as to their appointment".The important provision is paragraph 2(5), which states:Regulations must provide, so far as it is practicable to do so, for the persons appointed to be representative of the local community in the board's area and to live or work (or have lived or worked) in that area".
§ Lord Phillips of Sudbury
My Lords, I thank the Minister for giving way. Will he accept that a eunuch is a eunuch whether he is local or not?
§ Lord Williams of Mostyn
My Lords, I expect that it would depend on two issues; first, the nature of the eunuch and, secondly, the nature of the area. And I hope that the noble Lord is not making snide references to Hampstead!
Sometimes one feels that one cannot win on these occasions. We put forward regulations specifying that local people must be represented and then the noble Lord, Lord Phillips, says that that is not sufficient. The measure is made and it recognises the importance of local involvement in the provision of local service. What we will not return to, and what we have set our face against, is local services which have been so patchy that some outcomes have been the object of reproach to all of us and have done a significant 1341 disservice to those young people for whom the Probation Service has historically cared so well. I commend the Bill to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.