Sitting of 8 October 2003

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester.

Academic Dentistry
Baroness Knight of Collingtree asked Her Majesty's Government:
What steps they are taking to tackle the shortfall in recruitment to academic dentistry.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, from the start of this academic year, the Higher Education Funding Council for England has increased its funding to universities for the training of dental undergraduates following a reassessment of the cost of training dentists.
Baroness Knight of Collingtree: My Lords, is the Minister aware that the dental profession is seriously alarmed about the shortage of clinical academics? Not only do they spearhead dental research, they are absolutely essential to the training of dentists, who are demonstrably in extremely short supply. Have any of the recommendations made in the 1997 Richards report been put into practice? If not, why not? If so, why has the situation become so much worse?
Lord Warner: My Lords, there are longstanding problems in the recruitment of academic dentists which go back a long way in time. We have been working with the deans of the dental schools on how improvements can be made and my original Answer sought to reflect that work. We have now received a further paper from the deans dealing with some remaining problems and we are working on that.
Despite all those difficulties, I can assure the House that dental courses continue to receive some of the best higher education ratings from the Qualifications and Curriculum Authority and have an international reputation which continues to attract students from all over the world.
Lord Clement-Jones: My Lords, while much of what the Minister has said is welcome, in particular the new funding for academic dentistry and many of the provisions contained in the new Health and Social Care (Community Health and Standards) Bill relating to dentistry, in 1999 the Prime Minister pledged that everyone who wanted it should have access to NHS dental care by 2001. What progress is being made in that respect?
Lord Warner: Good progress, my Lords. I correct that: extremely good progress. Since 1997 we have seen an interesting increase in the number of dentists
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working in general dental services. The number has increased from 16,728 to 18,400, but alongside that we have increased very substantially the number of training places and numbers of dental therapists now practising. Therapists can carry out routine fillings as an alternative to seeing the dentist. Furthermore, the number of training places for dental therapists is to rise by 300 per cent over the next two years. These developments are making a major contribution to the improvement in dental services under the NHS that the Prime Minister promised.
Lord Tomlinson: My Lords, does my noble friend agree that we could greatly assist the dental profession if we followed the sound advice voted for in this House concerning the addition of fluoride to drinking water, thus helping dentists in terms of prevention? Perhaps my noble friend can indicate the progress that might be made in that regard.
Lord Warner: My Lords, I was pleased to be associated with moving the amendment contained in the Water Bill earlier this year. That legislation is now progressing well.
Lord Walton of Detchant: My Lords, while it is true to say that the position is quite serious as regards the recruitment of people to university departments of academic dentistry, does the Minister agree that the same kind of serious situation exists in academic clinical medicine? This issue has been raised on many occasions in the House by myself and others. Two years ago it was highlighted in the Savill report of the Academy of Medical Sciences, after which the Government promised to take action. Can the noble Lord tell the House what action has been taken?
Lord Warner: My Lords, that goes a little wider than the Question. All I would say to the noble Lord is that the level of vacancies in academic medicine is considerably lower than it is for academic dentistry. That is why we are concentrating hard on dental issues.
Lord Elton: My Lords, I understand that the anxiety expressed by my noble friend concerns the specific shortage of heads of clinical dentistry departments. Can the noble Lord say how many vacancies there are nationally at that level?
Lord Warner: My Lords, I cannot give a detailed response to that question. However, there is a vacancy rate of around 16 per cent in academic dental posts.
Baroness Platt of Writtle: My Lords, is the Minister satisfied with the standard of careers advice being given, in particular that being offered to girls, on scientific careers such as dentistry? It is known in this House that I am patron of the WISE campaign— Women into Science and Engineering—so I declare an interest. The same is true for engineers. However, very

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rarely do careers advisers offer advice to girls to go into such professions. We want more of them. What are the Government doing to improve careers advice services?
Lord Warner: My Lords, careers advice is not part of my portfolio or that of the Department of Health. However, I can assure the noble Baroness that dentistry has become an increasingly popular career for women to pursue. By 2005, more women than men will graduate from dental schools. That suggests that careers advice services are working rather more effectively than in the past.
Baroness Carnegy of Lour: My Lords, how will the money put in by the Government be used? Will the salary scale of academic dentists be increased? If it is not, the problem will continue because you can make more money by being a dentist than by being an academic dentist.
Lord Warner: My Lords, the way in which the funding system works is that the Higher Education Funding Council gives money to the universities. It is then for the universities to allocate that money within their own organisations. The Higher Education Funding Council has made clear what extra funding is being provided for the training of undergraduate dental students. That involves an increase of about £4,680 per student per course.
Earl Howe: My Lords, the British Dental Association recently estimated that to achieve the necessary number of new recruits into the dental profession, as mentioned by the Minister, it will be necessary to increase the number of dental schools. What is happening about that?
Lord Warner: My Lords, plans are afoot to improve the quality of the buildings in many of the existing schools. As I said earlier, we have had considerable success in the development of dental therapists as a way of reducing the load on qualified dentists. It is worth bearing in mind that over the past three years £100 million has been spent on dental access centres, which are treating 300,000 patients per annum.

Zimbabwe: Press Freedom
2.44 p.m.
Lord Blaker asked Her Majesty's Government:
What discussions they have had with the governments of the other European Union countries about the recent closure by force by the Government of Zimbabwe of the Daily News newspaper of Harare.
The Lord President of the Council (Baroness Amos): My Lords, with our strong support, the EU issued a declaration on 18th September condemning the closure of the Daily News and describing it as a serious attack on freedom of information in Zimbabwe. With EU partners,
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we are discussing making further representations to the Zimbabwean Government regarding our wish that press freedom should be guaranteed in Zimbabwe.
Lord Blaker: My Lords, as this is my first attendance in the House since the event, may I congratulate the noble Baroness on her new appointment?
Following the forcible closure of the last independent daily newspaper in Zimbabwe, can the noble Baroness confirm the report this morning that Mr Mugabe has now arrested all the members of the executive of the Zimbabwe Congress of Trade Unions? While President Obasanjo has confirmed that Mr Mugabe will not be welcomed at the Commonwealth Heads of Government Conference in December in Nigeria, should not the European leaders be urging on the African leaders their obligation to use peer pressure to enforce human rights, the rule of law and good governance under the several treaties they have signed? Without their doing so, those treaties will lose all credibility.
Baroness Amos: My Lords, I thank the noble Lord, Lord Blaker, for his good wishes. I can confirm that Wellington Chibebe, who is the Secretary-General of the Zimbabwe Congress of Trade Unions, and 53 others have been arrested by police. No charges have yet been made. I presume that that is linked to the calls for action today and the handing-out of flyers in town.
As regards EU leaders pressing African leaders to use peer pressure, we have continued to do this, as the noble Lord, Lord Blaker, is aware. EU leaders and others have talked to their African counterparts, not only in the context of the New Partnership for Africa's Development but in the context of the Harare principles, which govern the relationship of Commonwealth countries with each other, and in the context of the UN.
Lord St John of Bletso: My Lords, what approaches have Her Majesty's Government made to the South African Government to inquire why they are not speaking out on press freedom in Zimbabwe, which is one of the very cornerstones of the democratic constitution of South Africa?
Baroness Amos: My Lords, the noble Lord, Lord St John of Bletso, will know that we have continued to talk about Zimbabwe not only with the President of South Africa but with others in the South African Government. President Mbeki is absolutely clear that the view of the South African Government is that dialogue between the MDC and ZANU-PF is the only way forward. The South African Government, with the Nigerians and the Malawians, have sought to facilitate that. Through their Foreign Minister, the South African Government previously made comments when there were concerns about attacks on MDC supporters as a result of a mass "stayaway", but I am not aware of any comments having been made in this particular instance.
Lord Avebury: My Lords, perhaps I may add our warmest congratulations from these Benches on the

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noble Baroness's appointment. It gives us great pleasure to see her still at the Dispatch Box dealing with the question of Zimbabwe.
Bearing in mind that the key player in this affair is the Southern African Development Community, what exchanges has the EU had with SADC since the ministerial summit of November 2002, when it was not possible to reach agreement between the parties? In particular, has the EU now sought to take a common line with SADC on the new press law and the banning of the Daily News? Has the Minister noted that yesterday the Media Institute of Southern Africa sent a delegation to SADC headquarters in Gaborone demanding strong action in respect of the threats to press freedom in the region generally and in Zimbabwe in particular? Would not this create a new opportunity for dialogue between the EU and SADC for that purpose?
Baroness Amos: My Lords, I thank the noble Lord, Lord Avebury. It does not matter how many times I change jobs, I still end up answering questions on Zimbabwe.
With respect to a dialogue between the European Union and SADC, there have continued to be discussions at troika level between SADC and the EU and, of course, between individual EU member states and individual SADC member states. I agree with the noble Lord that there is an opportunity for the EU and SADC to look again at issues relating to the press laws in Zimbabwe. However, given what happened in August at the SADC meeting, when there was a statement about EU sanctions and a complete misunderstanding of their role in Zimbabwe, those discussions may not necessarily result in the kind of initiative that we would like to see.
Lord Howell of Guildford: My Lords, while we are talking about discussions with other EU members about Zimbabwe, is the noble Baroness aware—I am sure she is—that this coming weekend, heading for an EU-ACP meeting in Rome are two members of the Zimbabwe Government, Mr Kangai and Mr Mangwana. Mr Mangwana is one of the chief suppressors of liberty in Mugabe's regime, and is on the EU travel banned list. What steps are we going to take to prevent him coming to Europe in defiance of that ban?
Baroness Amos: My Lords, the noble Lord, Lord Howell of Guildford, will know, because we have discussed this issue on a number of occasions in this House, that while there is a travel ban, exemptions apply to those countries which have international obligations with respect to UN or other international organisations being based there or UN-related meetings. I am very happy to look into this, but I imagine that the two individuals to whom the noble Lord referred are going because it is an ACP meeting, which allows them to enter Italy. I shall also tell the
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House that today and tomorrow the Africa Working Group, an EU working group at official level, will be talking about Zimbabwe.
Lord Acton: My Lords, may I add to what the noble Lord, Lord Avebury, said to my noble friend? I am delighted that she is continuing to answer questions on Zimbabwe—and, indeed, that she is the Leader of the House. I much look forward to my noble friend and I continuing to play a duet on this subject.
Can my noble friend say whether the Nigerian Government have had anything to say about the banning of the Daily News? If not, have Her Majesty's Government raised this matter with Nigeria and, if so, will they continue raising the matter with Nigeria?
Baroness Amos: My Lords, I thank my noble friend for his comments, although I am not so sure about the duet.
I am not aware of the Nigerian Government having raised this issue. I will check this with our High Commissioner in Abuja, and I will write to my noble friend specifically about whether we have raised this with the Nigerian Government. I am not aware that we have.

Electricity Supply
2.53 p.m.
Lord Peyton of Yeovil asked Her Majesty's Government:
Whether in the next five years there will be sufficient electricity to meet all foreseeable demands and, if not, what action they propose to take to ensure that any likely deficiency is made good.
Lord Davies of Oldham: My Lords, maintaining the reliability of energy supplies is a key goal set out in the Government's energy White Paper. It is not the Government's role to second-guess the electricity market. Through competitive markets, participants have incentives to maintain reliable supplies of electricity. These incentives are backed by licence conditions and statutory obligations enforced by Ofgem.
The Government have a role to provide information to the market. A major component of this is our work with Ofgem, through the Joint Energy Security of Supply Working Group, to monitor energy security.
Lord Peyton of Yeovil: My Lords, is the noble Lord aware that the lack of any underlying anxiety in his Answer causes one to regret even more the Government's decision to entomb the whole of this important subject in the mausoleum of the DTI? The noble Lord finds that very funny—unfortunately, it is not. I think that events are likely to wipe the smile off his face eventually.

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Have the Government stirred themselves yet to think about the possibly unpopular subject of the nuclear alternative, which has the immense advantage of being free of pollution, and their own neglect of the accompanying research?
Lord Davies of Oldham: Well, my Lords, I apologise if the noble Lord took offence at my smiling at his reference to the DTI as a mausoleum. I was in that entombment this morning and have emerged unscathed. I therefore feel that perhaps he was dramatising the point.
Let me make the obvious point that we are not complacent about electricity supplies—that is why we have acted with promptness over the past few months. We are concerned to hit that margin of spare capacity of between 15 and 20 per cent which the industry experts recognise as necessary. We were running at 16 per cent before the summer. I am pleased to announce that with the arrival back on scheme of part of the Grain power station, that margin goes up to 17.5 per cent for the winter. So without being complacent, I am merely indicating that the industry is hitting its targets.
Lord Tombs: My Lords, may I suggest to the Minister that he distinguishes between capacity margin and available capacity margin? There is a paper figure and there is a real figure, and they are quite different.
May I suggest to the Minister that the answer to the questions of the noble Lord, Lord Peyton, are, first, that it is almost certain that there will not be sufficient capacity over the next five years to meet central estimates? Secondly, whatever action is proposed, with one exception, it is unlikely to be effective over the next five years. That exception is peak lopping by industrial consumers. The outcome of that initiative is very difficult to see. If it is successful, it will involve some start-up costs passing to other consumers.
Lord Davies of Oldham: My Lords, of course I acknowledge the noble Lord's expertise in this area. I was feeling that I might be able to express gratitude to him for responding to the noble Lord, Lord Peyton, but I cannot agree entirely with his comments. As he will recognise from the White Paper, the Government have in place a proper concern for the security of energy supplies. We are therefore pursuing strategies to guarantee those supplies with regard to various forms of production. I can only state that the Government, while not being complacent, are confident that the strategies are in place.
Lord Ezra: My Lords, in addition to the problems of possible difficulties with the production of electricity, as referred to in the Question of the noble Lord, Lord Peyton, is there not also a possible problem with the transmission of electricity, as evidenced by grid failures in America and Europe in recent times? In
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order to limit the risks and the losses involved in long-distance grid transmission of electricity, will the Government place more emphasis on the promotion of local production of electricity, including CHP and micro-CHP—in which I declare an interest—and to which positive reference was made in the energy White Paper?
Lord Davies of Oldham: My Lords, I am quite sure that the power failures in the United States, Canada and Italy caused a shudder to run through all advanced countries in terms of the guarantee of supplies. The noble Lord is right that it is important that we effectively scrutinise the transmission of electricity.
I might just add that the supply failure in London, which was short-lived but nevertheless massively inconvenienced large numbers of people, was not to do with generation. It was to do with a really quite minor technical failure in the system, and we have asked for a full report to make sure that it does not happen again.
I agree with the noble Lord that we have to consider more local generation of electricity in order that we are not dependent on these long supply lines which have caused such difficulties in other circumstances.
Lord Dubs: My Lords, will my noble friend confirm that the safety margin to which he referred will increasingly have to be filled with imported gas from politically unstable countries? Is not that the basis of concern about the future of supply?
Lord Davies of Oldham: My Lords, my noble friend is right that we will begin to be a net importer of gas, as North Sea stocks decline. I might say that that puts us into the same category as the vast majority of industrialised nations. He will recognise that we have consumed a substantial amount of gas supply from overseas for a long period. Of course, we are addressing ourselves to the issue that with certain purchases as regards gas we will need to guarantee the security of provision.
Baroness O'Cathain: My Lords, how confident is the Minister that the forecasts for demand are correct? The reality is that forecasts have always been incorrect in the past. Given the record in forecasting demand for electricity, is he absolutely convinced that those forecasts are likely to be correct?
Lord Davies of Oldham: My Lords, in energy as in many other fields, forecasting always has an element of uncertainty about it, otherwise it would be the definition of certainty rather than a forecast. Nevertheless, that is the basis on which energy supplies have been provided for the country in the past. We had an acute problem during the storms of 2002 and there have been other occasions when problems have occurred. However, all I can state is that our generating capacity is in line with forecasts of demand, with that substantial margin that all experts attest is sufficient.

Renewables Obligation
3.1 p.m.
Lord Jenkin of Roding asked Her Majesty's Government:
What action they propose to take in the light of the failure of TXU (UK) Ltd and Maverick Energy Ltd to comply with the renewables obligation by paying the £23.6 million due from them by 1st October.
Lord Davies of Oldham: My Lords, we shall be consulting industry on proposals to minimise the adverse impact of any future shortfall on the renewables market, our approach being on the basis that the industry will bear the risk of any electricity suppliers going into administration. We have re-emphasised our commitment to taking necessary legislative action, in particular to address the question of late payments. The TXU administrator estimates that advance interim payments may be in the order of 35 to 40 pence in the pound.
Lord Jenkin of Roding: My Lords, is that not a very complacent Answer? Is the Minister aware that confidence in the market for renewables obligation certificates has been severely shaken by the information that there will be a very big hole in the buy-out fund? Is he further aware that, since the Ofgem announcement in August, there has been virtually no trade whatever in fixed-price deals for renewables obligation certificates? Does that not bode very ill for the Government's policy on increased renewables investment? While that lack of confidence continues, there will be no such investment. The Government should take the matter a great deal more seriously.
Lord Davies of Oldham: My Lords, the Government are taking the matter seriously. We are involved in a review of the renewables obligation with regard to certain possible short-term emendations, which may assist the situation. The noble Lord will recognise that the Government remain fully committed to the renewables obligation. The next time an auction takes place, when we shall be able to measure the market, is for the Scottish renewables obligation on 21st October. We shall be able to look more accurately at the situation at that point.
Lord Ezra: My Lords, bearing in mind that only 1.7 per cent of electricity was generated from eligible renewable sources in 2002, which is well below target, is it not now becoming apparent that the Government have drawn the eligible list too narrowly? Is it not time for the situation to be reviewed? Those sources of energy that can contribute substantially to emissions reduction should be included, such as coal mine methane emissions and clean coal technology, which needs to be developed.
Lord Davies of Oldham: My Lords, as I have indicated on recent occasions to the noble Lord, the Government are open to that proposition and are looking at the ways in which they can extend the commitment to meeting the renewables target of 10 per cent. He is right that in the first year the performance was below what is required, but we regard the renewables target of 10 per cent as realistic. It is a significant target to reach by 2010. The noble Lord will recognise that, even by extending the range of possible contributors to the target, it is still overwhelmingly the case that the target will be reached only if we are able to enhance wind turbine production.
Lord Oxburgh: My Lords, is the Minister aware that banks and other financial institutions will not invest in the renewables sector while the apparent risks of losing money are as substantial as they appear to be?
Lord Davies of Oldham: My Lords, the noble Lord is right. That is a very realistic consideration that has to be taken into account. I indicated earlier that the Government take the matter very seriously. They will look at the matter in terms of the market position, when that becomes clear, and they are also prepared to consider short-term measures that may be effective in restoring confidence in the market, which is what we need to do.
Baroness Miller of Hendon: My Lords, is there not another aspect to the matter? Is it not the case that the surrender of the renewables obligation certificate to Ofgem for £30 each time is a contract between Ofgem and the suppliers? Following normal legal principles, Ofgem will have to find the repayment money, irrespective of its failure to recover the debts. That being so, what steps will the Government take to enable Ofgem to pay its legal and moral obligation and debts? If that is not done, there will be no further investment into renewable energy sources, especially not by the small investors.
Lord Davies of Oldham: My Lords, as I indicated in my original Answer, the responsibility is to be borne by the industry, which is aware of the risks when it undertakes its commitments and makes its contracts. This is quite a serious position—with the going into administration of TXU—and no one underestimates its significance. However, it is not for the Government to intervene in the market; it is for the market to assess the position and for the Government to see ways in which they can encourage the development of renewables. It is for the market to take the final decision.
The Earl of Mar and Kellie: My Lords, in view of the situation regarding renewables in Scotland and the huge hole in the buy-out fund, will the Scottish auction in 12 days' time really be viable?
Lord Davies of Oldham: My Lords, as I indicated, the Government's position is clear. The market is set up in terms that everybody understands, and is

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governed by laws and relationships. It is not for the Government to intervene in that market at present. As I said in response to the noble Lord, Lord Jenkin, we shall see what happens on 21st October, which is the first time that the issue will be tested in the market.

Iraq: Attorney-General's Advice
3.8 p.m.
Baroness Williams of Crosby asked Her Majesty's Government:
Whether they regard current policies in Iraq to be consistent with the legal advice which the Prime Minister received from the Attorney-General.
Baroness Amos: My Lords, it has been the practice of successive governments not to publish advice from the Attorney-General, in accordance with paragraphs 2 and 4(d) of Part II of the Code of Practice on Access to Government Information. The Attorney-General made a statement on 17th March setting out his views on the legality of the use of armed force against Iraq, but his advice was not disclosed. The Government are confident that their policies and actions in Iraq are right and consistent with the UK's international obligations. Events in Iraq are closely monitored by the ad hoc ministerial group, which meets every two weeks.
Baroness Williams of Crosby: My Lords, do the Government recall that on 21 st September the civilian administrator of occupied Iraq, Mr Paul Bremer III, issued an order—order number 39—which allowed for the private purchase of all economic sectors of Iraq up to the limit of 100 per cent of ownership by foreign owners, excluding only natural resources from that huge shock therapy?
Are the Government aware that the Attorney-General is reported to have said that,
"wide-ranging reforms of governmental and administrative structures would not be lawful"?
If the Government do not wish to disclose the information provided by the Attorney-General, can they assure the House that in their view order number 39 is compatible with paragraph 43 of the 1907 Hague Regulations, with the Fourth Geneva Convention and with UN Resolution 1483—in which the Government committed themselves to upholding international law in every aspect?
Baroness Amos: My Lords, I am aware of the order which was made; in fact, I was in Dubai at the meeting of the World Bank when Iraq's Minister of Finance made the announcement on the private purchase of sectors of Iraq. That decision was taken by the Iraqi
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Governing Council and endorsed by the CPA. I will write to the noble Baroness on her specific points on the 1907 Hague Regulations.
Lord Archer of Sandwell: My Lords, does my noble friend recollect that, prior to her very welcome translation, the House was assured from the Front Bench on more than one occasion that a regime change formed no part of the Government's purpose because that would not be a lawful justification for military action, although admittedly it was implied that if that were an unintended consequence of the invasion the Government would not be inconsolable? That being so, how can the Government justify condoning the imposition of a totally new economic regime which has not been endorsed by the people of Iraq?
Baroness Amos: My Lords, the Iraqi Governing Council is seeking to carry out a number of responsibilities, and the CPA and the occupying forces want to hand over power to the Iraqi people as quickly as possible. For example, as my noble and learned friend will know, a constitutional group is meeting and has made proposals to the Governing Council to which the Governing Council will have to reply. As for my noble and learned friend's point on regime change, we have always been absolutely clear that our reasons for entering into conflict related to the flouting of UN resolutions and the threat of WMD in Iraq.
Lord Howell of Guildford: My Lords, with all due respect to the noble Baroness, surely she could be putting a rather stronger case in meeting the very acute criticisms and comments of the noble Baroness, Lady Williams. Surely Resolution 1483 does empower the occupying power and indeed the Governing Council to go ahead with the necessary restructuring. Surely one outcome of that has been some very substantial moves forward in currency reform, in inward investment, in the reinvolvement of some of the great trading families of the Middle East, in the renewal of infrastructure and in the fact that electricity is now running at the same levels as it was before the invasion and heading for even better levels. Is there not a very strong case for encouraging both the provisional authority and the Governing Council to continue these economic reforms which, despite all the difficulties in the Sunni triangle, are leading rapidly to a better Iraq which will be more prosperous for all its people?
Baroness Amos: My Lords, of course improvements are happening every day in Iraq. I take the noble Lord's point although, as he said, the security situation remains fragile. However, I return to my original Answer. We are seeking to hand over power to the Iraqi people as quickly as possible. With all due respect to the noble Baroness, Lady Williams, we cannot have our cake and eat it. We cannot talk about handing over authority to the Governing Council, but complain

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when the Governing Council makes decisions—given that it is Iraqis making decisions on behalf of other Iraqis—about the economic future of Iraq.
Baroness Ramsay of Cartvale: My Lords, does my noble friend agree—
Lord Goodhart: My Lords—
Noble Lords: This side!
Baroness Amos: My Lords, I think that the Labour Benches have not yet had an opportunity.
Lord Goodhart: They have, my Lords.
Noble Lords: Order.
Baroness Amos: My Lords, I think there is sufficient time if both noble Lords are very quick. I suggest that we take the question from my noble friend and then the question from the noble Lord.
Baroness Ramsay of Cartvale: My Lords, in his Written Answer to me on 17th March, my noble and learned friend the Attorney-General said that the,
"Authority to use force against Iraq exists from the combined effect of Resolutions 678, 687 and 1441",
which were passed under Chapter VII, which itself explicitly,
"allows the use of force for the express purpose of restoring international peace and security".—[Official Report, 17/3/03; WA2.]
Does my noble friend agree that what Her Majesty's Government have done and are doing in Iraq is entirely consistent with that?
Baroness Amos: My Lords, I agree with my noble friend's comments.
Lord Goodhart: My Lords, on 24th September, in a leader, the Financial Times said that the appointed interim Governing Council of Iraq does not have,
"the political authority to sell off chunks of Iraq's national assets".
It said that that,
"is a decision that will require the legitimacy of an elected government. Otherwise there will be no shortage of forces in Iraq … to present it as a second looting of the country".
Does the Leader of the House agree with that? If so, is it not plainly untimely to think of selling off long-term assets now?
Baroness Amos: My Lords, UN Security Council Resolution 1483 set out the terms under which the next phases in the reconstruction and rehabilitation of Iraq should take place. In that context, the Governing Council, fully supported by the CPA, made decisions with respect to the economic future of Iraq.

Criminal Justice Bill
3.18 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 148 [Power to increase limits]:
On Question, Whether Clause 148 shall stand part of the Bill?
Baroness Anelay of St Johns: I gave notice that I objected to Clause 148 standing part of the Bill. Grouped with the objection is a series of amendments, one of which, Amendment No. 239BA, a technical consequential amendment, stands in my name. Since I gave notice that I objected to the clause, I have received the support of the noble Lords, Lord Goodhart and Lord Dholakia. I also welcome the fact that the noble Baroness, Lady Scotland, has added her name. She has very helpfully spotted a whole host of consequential amendments that had completely escaped me. I can therefore be relatively brief on this matter. However, it is important to put on the record why we objected and why it is welcome that the Government have accepted the proposition that the clause should not form part of the Bill.
The Bill already makes a major extension to magistrates' maximum sentencing powers, from six months to 12 months for a single offence. In Clause 148, the Government propose to take the power further to extend this maximum, by secondary legislation, to 18 months for a single offence, and to an overall maximum of two years in the case of multiple offences for which consecutive sentences were then imposed.
We expressed our views in another place that that was an improper use of secondary legislation. In this House, we were much encouraged by the report of the Delegated Powers and Regulatory Reform Committee, which said:
"According to the Home Office memorandum, a decision to use the power under clause 148 will be taken when it is demonstrated that 'magistrates are making effective use of their new sentencing powers and are retaining more cases for trial'. Although the power under clause 148 is subject to affirmative resolution, we considered whether a provision of such importance and general application should appropriately be left to delegated legislation at all. We have concluded that it should not".
We certainly welcomed that view from the Delegated Powers and Regulatory Reform Committee. It seems that the Government have accepted it by adding their names to the objection to Clause 148 stand part. In

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expressing my objections to that, I also look forward to the remaining technical amendments being accepted by the Committee.
Lord Carlile of Berriew: On behalf of these Benches I broadly agree with what has just been said. There is a fundamental objection to delegated powers being used to increase sentencing powers for something like 97 or 98 per cent of the criminal offences which come before the courts in this country.
As has frequently been said, the way in which orders are dealt with is extremely unsatisfactory as they are unamendable. One of the procedural changes which ought to be considered by this House and the other place is to make orders, particularly those subject to the affirmative resolution procedure, amendable so that proper parliamentary debate with the opportunity of change can be achieved.
I have nothing further to add to what has already been said.
Lord Renton: I can be very brief as the noble Lord, Lord Carlile, on the Liberal Democrat Benches has already put forward very clearly the objection to Clause 148 and to the later references in the Bill giving power to the Secretary of State to increase sentences. Surely in our democratic society it should be for Parliament to prescribe what should be the maximum sentence for any offence. The granting of powers to a Secretary of State merely to increase sentences is surely wrong in principle. It is for Parliament to state maximum sentences, and that is a principle to which we should adhere.
Lord Goodhart: As a former member of the Delegated Powers and Regulatory Reform Committee, I am very glad to see that the Government have taken on board the recommendations of the present committee that this matter should be dealt with by primary legislation if it is decided to extend the sentencing power beyond the proposed 12 months. It is not always easy to see the appropriate dividing line between what can properly be done under the affirmative resolution procedure and what requires primary legislation, but I think that in this case the committee was absolutely right to say that primary legislation was needed for a change as important as this. I am very glad that the Government have accepted that contention.
Baroness Scotland of Asthal: It seems to me that comity has broken out all over the Committee. It gives me great pleasure to agree with the noble Lord, Lord Carlile, the noble Baroness, Lady Anelay, the noble Lord, Lord Renton, and, indeed, the noble Lord, Lord Goodhart. I am coming very quietly and it did not need quite so many noble Lords to bring me to this point!
It gives me pleasure to add my name to those of the noble Baroness, Lady Anelay of St Johns, and the noble Lords, Lord Goodhart and Lord Dholakia, in seeking to remove from the Bill the Secretary of State's order-making power to increase magistrates' sentencing
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powers further to 18 months. We have listened carefully to the comments made both in this House and in the other place and, as the noble Lord, Lord Goodhart, rightly said, to the recommendations of the Delegated Powers and Regulatory Reform Committee.
We have always recognised the need to monitor and evaluate the increase to 12 months provided for in Clause 146 and to assess the impact of this increase on sentencing practice and on the number of cases allocated to the Crown Court for trial before any further increase is provided for. The noble Lord, Lord Goodhart, is right to say that it is sometimes difficult to see where the dividing line between the affirmative resolution procedure and primary legislation should be drawn. We are very happy to draw the line in a slightly different way. As the noble Baroness said, there are a number of amendments consequential on removing Clause 148 from the Bill, mainly linked with the changes to offence maxima. I hope that the Committee will forgive me if I do not burden it with the detail of those consequential amendments which will be moved in due course.
Clause 148 negatived.
Clause 149 [Pre-sentence reports and other requirements]:
Lord Dholakia moved Amendment No. 161FD:
Page 89, line 40, leave out from "18" to first "the" in line 1 on page 90.
The noble Lord said: The purpose of our amendment is to ensure that the court is aware of all the relevant information prior to sentencing when dealing with offenders under the age of 18 years.
In its present form the clause permits a court to impose a discretionary custodial sentence on a young offender without the safeguard of obtaining a pre-sentence report. We believe that that is a dangerous provision which does not properly take into account the provisions of Section 44 of the Children and Young Persons Act 1933 which requires every court dealing with a child or young person to have regard to the welfare of the child or young person. We suggest that in the case of offenders under the age of 18 years all relevant information ought to be contained in a pre-sentence report. I beg to move.
Baroness Scotland of Asthal: I understand the noble Lord's concern but I hope that I shall be able to satisfy him that we have now dealt with the matter adequately.
As the noble Lord will know, the current provisions in the Criminal Justice Bill derive from Sections 156 and 157 of the Powers of Criminal Courts (Sentencing) Act 2000, which are a consolidation of provisions in the Powers of Criminal Courts Act 1973 and the Crime (Sentences) Act 1997.
Clauses 152 and 153 of the Bill provide for the disclosure of pre-sentence reports in court where the defendant is a juvenile, as the noble Lord indicated. In particular, subsection (3) of Clause 143 and subsection (3) of Clause 144 provide that if the defendant is under the age of 17 and is not represented by counsel or a

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solicitor a copy of the report need not be given to the offender but must be given to his parent or guardian if present in court.
In the light of the response of the Joint Committee on Human Rights (JCHR) and amendments proposed by the Opposition and withdrawn at Committee stage in the other place, we wish to amend the existing provisions on the circumstances in which pre-sentence reports from youth offending teams and other sentencing reports are disclosed to young defendants.
We propose that the courts should provide the juvenile with a full copy of the pre-sentence report or other report irrespective of whether they are represented or accompanied by a parent or guardian unless the courts consider that to do so would place the juvenile at risk of significant harm. I note that the noble Lord nods his assent in that regard as it is a perfectly proper step to take in terms of protection. We further propose that the courts should provide the parent or guardian with a full copy of the report unless the court considers that to do so would place the juvenile at risk of significant harm. That would be in line with the existing Youth Justice Board and Department of Health good practice.
Our aim is to ensure that the juvenile's right to fair trial is upheld by generally providing them with a copy of their pre-sentence or other report while also providing courts with the necessary discretion to make assessments on the disclosure of information on a case by case basis. In addition, we also wish to involve parents or guardians at an early stage encouraging them to take part in the court process. We want the definition of parent or guardian to encompass anyone who retains parental responsibility over the child including the local authority for children in care, where necessary.
We have defined "significant harm" in this context in accordance with Section 31 of the 1989 Act where "harm" means ill treatment or the impairment of health or development. We take the view that we also need to take into account the parent's rights under the ECHR. A parent's access to the reports is within the ambit of parental rights under Article 8. The parent's rights need to be weighed against the child's right to a private life under Article 8.
With regard to the opposition amendment tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, they have rightly pointed out that for cases where a community sentence or custody is being considered, the court needs to see pre-sentence reports where the offence is summary or either way, but not where it is indictable. We agree that the issue needs further consideration, and we will return to it on Report. With that assurance, I hope that the noble Lord will be content.
One reason for the previous approach is because the indictable offences were the more serious, and the court would have had to make proper inquiries. In relation to more minor offences, we want to guarantee that that happens by routine, but we know from experience that the courts have ordered appropriate reports where they have determined that they were necessary.
3.30 p.m.
Lord Dholakia: I am grateful to the Minister for her explanation. In light of what she has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 149 agreed to.
Clause 150 [Additional requirements in case of mentally disordered offender]:
Baroness Anelay of St Johns moved Amendment No. 161G:
Page 90, line 29, leave out "Subject to subsection (2),"
The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 161H, which is in the group. They were tabled in my name, and the noble Lord, Lord Dholakia, has signified his agreement to them.
I tabled the amendments to ask the Government whether they have considered the drafting of the clause further since debates on the matter in another place in February, much earlier this year. My honourable friend Dominic Grieve raised the matter then in Committee, asking why the Government appeared to have drafted the clause so that subsections (1) and (2) in effect cancelled each other out. Subsection (1) states that, in the case of a mentally disordered offender,
"the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law".
It uses "must", not "may". Unfortunately, subsection (2) states that, despite the "must" in the first subsection, the court does not need to obtain the report if it does not think it necessary to do so.
It is difficult to consider circumstances in which it would be right for a court to proceed without such a medical report. However, my objection is simply to the drafting itself, which underlies the problem. The Minister in another place sought to explain away the matter on the basis that it was simply a copy of the original drafting in Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000, but I am not persuaded by that. I hope that the noble Baroness has been able to reflect and will come forward with a further explanation. The fact that drafting is not helpful in a previous Bill does not mean that we should not try to get it right now. I beg to move.
Lord Dholakia: The amendment, which we support, is grouped with a number of amendments tabled in my name. If Amendment No. 161GA were made, the clause would suggest that where the offender was or appeared to be mentally disordered or mentally vulnerable, the court must obtain and consider a medical report. That is necessary because there is sometimes failure to recognise people with learning disabilities and other vulnerabilities as mentally disordered. The category of those appropriate for a medical report should be the same as the category recognised as requiring safeguards under the Police and Criminal Evidence Act.
Given the requirement for a medical report before passing a custodial sentence, we can see no reason for the failure to require a medical report before passing a

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community sentence. Community sentences are demanding and are now rigorously enforced. The court needs to be certain of an offender's suitability and ability to comply with such requirements. In all cases where a report is required, it must also be very timely.
Lord Renton: Perhaps I should declare that, some years ago, I spent four years as chairman and six years as president of Mencap. Although it was very rarely that a person with severe mental disorder or handicap committed any serious offence, when they did so they could not be treated in the ordinary way. Clause 150 acknowledges that. However, my noble friend Lady Anelay is absolutely right to say that we should not have subsection (2), which would have the ill effect of nullifying subsection (1), a very important subsection. May I have the attention of the Minister? The matter is very important, in my opinion.
It is essential that we have a medical opinion. Mentally disordered people are not normally sent to prison and should not be. They are sent to hospitals where patients are confined. Of course I realise that, in some of those hospitals, patients are confined not because they have a mental condition that requires medical attention but because they are ill and therefore must be confined in a hospital from which they cannot get out. For mentally disordered people to have a custodial sentence without a medical report is surely a very serious handicap and wrong in principle.
Lord Carlile of Berriew: I want a brief word on the subject in the form of a question. Looking at Clause 150(2), in what circumstances would it be,
"unnecessary to obtain a medical report",
bearing in mind that the offender in question,
"is or appears to be mentally disordered"?
I hope that we can have some factual flesh put on those bones.
As someone who has—I declare an interest—an involvement in at least two charities that deal with mental illness, I know that mental illness is not always florid. It often displays itself in extremely subtle and sometimes undetectable ways, but it can be extremely profound in its effect on the person appearing before the court. The court may take the view that, because the offender stands before it appearing pretty normal and not displaying any florid symptoms of the mental illness, it can really get on with the sentencing, but it may very well be wrong. I appreciate that there is immense pressure on psychiatric services, particularly in the prisons, but that is a resource issue. Many of us believe that we save money if we have more psychiatrists in the prisons, because we find ways of keeping people out of those very expensive prisons.
I ask the Minister that factual question in the hope that she can—please—illuminate subsection (2) for those of us who do not understand it.
Baroness Scotland of Asthal: It will give me great pleasure to do so. I can tell the noble Lord, Lord Renton,
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that I have developed an ability from the Dispatch Box to listen and transfer information at the same time. I was fully able to take in what he said and to note that it chimed precisely, almost word-for-word, with what was said by the noble Baroness, Lady Anelay, and then followed so succinctly by the noble Lord, Lord Dholakia. I apologise if the noble Lord, Lord Renton, felt that there was any lack of my attention, but I reassure him that it was not so.
Amendments Nos. 161G and 161H would remove the court's discretion not to obtain a medical report where an offender was or appeared to be mentally disordered. I understand the anxiety expressed by those who have spoken, especially in the question raised by the noble Lord, Lord Carlile. It is important to remember that there are circumstances in which the court will already have obtained such a report under mental health legislation—for example, where it has remanded the person to hospital for treatment under Section 36 of the Mental Health Act 1983.
In this case, it would be a waste of time and resources of the court and of the medical practitioner to produce and consider a further report which would add nothing to the information before the court. It would already have the evidence in relation to that matter. In those circumstances, it would be open to the court to say, "We don't need to order another report because we already have available to us an appropriate report".
Similarly, the effect of Amendments Nos. 161GA, 161GB, 161J and 161K in the name of the noble Lord, Lord Dholakia, would be to require the court to obtain and consider medical reports in a wide range of circumstances, even though the reports were not necessary to inform the sentencing decision. Perhaps I may explain why that is so.
The court is required to consider medical reports only where it has in mind to make a custodial sentence. A disposal under the Mental Health Act is available only in respect of an imprisonable offence and is generally imposed in lieu of a custodial sentence. It is available only while the offender is mentally disordered as defined in Section 1 of the Mental Health Act.
To require the court to obtain and consider medical reports where those circumstances did not apply would again be to risk wasting time and resources to no purpose. There will be occasions where the court requires evidence of an offender's mental condition, even though it does not intend to make a Mental Health Act disposal. But the court should have the discretion—that is all I am talking about—to obtain such a report where it considers it necessary. We have looked at the drafting of the Bill and considered the matter with parliamentary counsel. We are content that, as drafted, it meets the needs of the case.
Lord Carlile of Berriew: Is the Minister satisfied that Clause 150(2) does not on the face of the legislation allow the court to sentence a mentally disordered offender without a medical report being obtained? I understand that not to be the Government's intention. We all share a purpose—no criticism is involved here. Should not the

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Government look again particularly at subsection (1) to see whether we can achieve the purpose of ensuring on the face of the Bill that no mentally disordered or apparently mentally disordered person will be sentenced without there being a medical report from one source or another?
Baroness Scotland of Asthal: We are in sympathy with the sentiments expressed by the noble Lord. We have looked at the matter again and we believe that the two clauses as currently structured achieve that result. It is not inconsistent, as the noble Baroness, Lady Anelay, feared, because she is right: the provision states that there must be a report, but that need not necessarily be one obtained as a result of an order or direction given by the court. A report could be available: for instance, the person may already be voluntarily in the care of a mental health institution which would be available to report to the court. Therefore, the "must" is present, but, by the same token, if the court has such a report and is content that is has the basis, the judge or magistrates sentencing can dispense with the need to obtain a fresh report.
Lord Clinton-Davis: If the learned judge were to behave capriciously, is no remedy available?
Baroness Scotland of Asthal: My noble friend is right. In this area judges have tended not to behave capriciously. It is good that there is an understanding of the importance of such reports. The noble Lord, Lord Carlile, talked about those who do not have florid signs. I am sure he will know that there is a professional duty on those representing such individuals, as he has done, to raise that issue with the court in order to ensure that it knows of the underlying difficulty. Representatives must also provide reports at the court's request if it needs that information to make an informed judgment.
3.45 p.m.
Lord Carlile of Berriew: As I am tempted to respond to the noble Baroness, I shall do so. I want to place on the record one difficulty. As counsel, however strongly one advises a solicitor to obtain a report, and however strongly the solicitor holds his or her view about obtaining a medical report, the way in which the Legal Services Commission now works means that it can be a slow and difficult process to obtain the funding for such a report.
If the purpose of the exercise is to ensure that apparently mentally disordered persons have reports prepared which can be submitted to the court—I am sure that we all share that purpose—I hope that the Government will take steps to ensure that the Legal Services Commission does not, for example, place unrealistic fee limits on the psychiatrists who are asked to provide the reports. I say to the Minister—as she is in a more exalted position I have more experience of dealing with criminal trials—that cases are sometimes delayed as a result of difficulties with the Legal Services Commission and that sometimes exacerbates the symptoms that the defendant is showing.
Baroness Scotland of Asthal: I shall restrain myself from responding. I say simply that under these clauses
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the court will have an opportunity to ask for a report if it needs one for sentencing. We believe that the matter is covered.
Baroness Anelay of St Johns: Despite the valiant efforts of the Minister to help us further along the line of understanding the Government's intention in drafting the provision, I retain some difficulty with that. We share the Government's objective that there should be no waste of time or resources. It is as much a matter of interest to the mentally disordered person that no time or resources are wasted and that they are properly allocated to reports which are needed.
I share so much of the anxiety expressed by the noble Lord, Lord Carlile of Berriew, about the importance of the reports in each and every case. The Minister rightly directed us to the fact that one of the reasons why there is no need for a "must" but why there can be a discretion is that an appropriate report may already be available. Having listened to the Minister and others, I do not believe that the drafting necessarily enables the court to be sure that the report available is the appropriate report. Clarity on what report is acceptable is not provided in the clause as currently drafted.
I do not work miracles and in drafting I never could, but I shall undertake to look carefully at subsection (1) before Report. I shall consider whether there is a way in which we could bring back a suggestion to the Government. Linked to that is my anxiety that subsection (4) appears to be declaring, "If the court in subsection (1) does not have the right report, if it has not taken the right action, don't worry, you will not invalidate your sentence unless the person subject to the sentence has appealed against it". I do not like putting mentally disordered offenders in the position of having to be given a sentence and being able to obtain a report only when they appeal. That is doing things the wrong way round.
I made it clear that we had tabled the amendment in order to elicit an explanation and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 161GA to 16IK not moved.]
Clause 150 agreed to.
Clause 151 agreed to.
Clause 152 [Disclosure of pre-sentence reports]:
Baroness Scotland of Asthal moved Amendments Nos. 162 and 163:
Page 91, leave out line 28 and insert—
"( ) to the offender or his counsel or solicitor,
( ) if the offender is aged under 18, to any parent or guardian of his who is present in court, and"
Page 91, line 31, leave out subsection (3) and insert—
"(3) If the offender is aged under 18 and it appears to the court that the disclosure to the offender or to any parent or guardian of his of any information contained in the report would be likely to create a risk of significant harm to the offender, a complete copy of the report need not be given to the offender or, as the case may be, to that parent or guardian."
On Question, amendments agreed to.
[Amendment No. 163A had been withdrawn from the Marshalled List.]
Baroness Scotland of Asthal moved Amendment No. 164:
Page 91, line 41, at end insert—
"( ) In relation to an offender aged under 18 for whom a local authority have parental responsibility and who—

(a) is in their care, or

(b) is provided with accommodation by them in the exercise of any social services functions,

references in this section to his parent or guardian are to be read as references to that authority.
( ) In this section and section 153—
"harm" has the same meaning as in section 31 of the Children Act 1989 (c. 41);
"local authority" and "parental responsibility" have the same meanings as in that Act;
"social services functions", in relation to a local authority, has the meaning given by section 1A of the Local Authority Social Services Act 1970 (c. 42)."
On Question, amendment agreed to.
Clause 152, as amended, agreed to.
Clause 153 [Other reports of local probation boards and members of youth offending teams]:
Baroness Scotland of Asthal moved Amendments Nos. 165 and 166:
Page 92, line 9, leave out "to the offender or his counsel or solicitor" and insert—
"( ) to the offender or his counsel or solicitor, and
( ) if the offender is aged under 18, to any parent or guardian of his who is present in court."
Page 92, line 11, leave out subsection (3) and insert—
"(3) If the offender is aged under 18 and it appears to the court that the disclosure to the offender or to any parent or guardian of his of any information contained in the report would be likely to create a risk of significant harm to the offender, a complete copy of the report need not be given to the offender, or as the case may be, to that parent or guardian.
(4) In relation to an offender aged under 18 for whom a local authority have parental responsibility and who—

(a) is in their care, or

(b) is provided with accommodation by them in the exercise of any social services functions,

references in this section to his parent or guardian are to be read as references to that authority."
On Question, amendments agreed to.
Clause 153, as amended, agreed to.
Clause 154 [Pre-sentence drug testing]:
Baroness Anelay of St Johns moved Amendment No. 166A:
Page 92, line 16, leave out "14" and insert "12"
The noble Baroness said: In moving Amendment No. 166A, I shall speak also to Amendments Nos. 166B, 166C and 167A, all of which are in my name. We now reach Clause 154, which provides that if someone who is aged 14 or over is convicted of an offence and the court is considering whether or not to impose a community sentence, the court has the power to order the convicted person to have a drug test to find out whether he has class A drugs in his system.
The Explanatory Notes tell us that this clause re-enacts Section 36A of the Powers of Criminal Courts (Sentencing) Act with some modifications. One obvious modification is that the power is now extended to assess people below the age of 18. My amendments are probing in order to ask the Government to put on the record today the answers to the following questions. What other modifications has this new clause made and, if there are any, why? Why have the Government chosen the age of 14 as the magic new threshold? What about those who start drug use early? Amendment No. 166A therefore proposes the age of 12 simply as a device to cover that question. I am not proposing a reduction to the age of 12; it is simply a device to ask the Government why they have chosen the age of 14.
How routine do the Government expect the tests to be? Amendment No. 166B makes it a requirement for the court to order the test. Why are the Government restricting the test to class A drugs only? Is it not the case that the use of other drugs by younger persons may, indeed, be the early-warning system to problems with other, harder drugs later? Therefore, our amendments give the Secretary of State the power to specify other drugs to be tested.
Of course, drug testing can be of high value only when the Government commit adequate funding to services that will help the convicted person to live without the drugs. Therefore, my final question is: what extra services and funding do the Government intend to provide to cover the increased cost of the treatment for persons who will be tested under the new provisions in this clause? I beg to move.
Lord Dholakia: I shall speak to Amendments Nos. 166AA, 167ZA and 178ZB, which are grouped with Amendment No. 166A. We were deeply impressed by the representations made to us on these matters by Barnardo's and the Children's Society. Equally, we are concerned about extending drug testing to children under the age of 18.
The Bill proposes the introduction of compulsory drug testing and treatment for children. The Children's Society and DrugScope are urging the Government to reconsider those proposals on the basis that they are unnecessary, potentially counter-productive and not rooted in evidence. They also further confuse the distinctive status of children in law and within the criminal justice system. Critically, the Government have failed to demonstrate how the measures are in the best interests of children, as required by Article 3 of the United Nations Convention on the Rights of the Child.
Existing drug-testing powers in the criminal justice system are applicable only to those aged 18 and over. Under the provisions of the Bill, it is proposed that those powers be extended to anyone aged 14 and over. Clause 10 of Part 1 extends existing police drug-testing powers at the point at which a person is charged with an offence. Clause 145 of Part 12 extends the power for courts to order pre-sentence drug testing. Clause 239 of Part 12 extends the power to attach testing requirements to licence conditions following release from custody. The Bill also proposes reform to enable

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treatment and testing requirements to be attached to action plan and supervision orders made on offenders aged 13 and over, as set out in Clause 243 in Part 12 and detailed in Schedule 17.
We believe that the proposed measures in relation to drug-testing powers for children and treatment and testing requirements on action plan and supervision orders should be withdrawn entirely on the following grounds: they are without an explicit purpose or rationale for their necessity or effectiveness; they are an extension of powers used with adults without any consideration of how or whether they meet the best interests of children; they infringe children's rights to liberty, privacy and protection from inhuman and degrading treatment; they risk making a child's right to necessary treatment for a drug problem conditional upon their past or future involvement with offending; and they come at a time when expertise and evidence in relation to children's drug problems and their relationships with offending are at an early stage of development. The evidence which exists does not suggest that the Bill's proposals will be effective.
The UN Committee on the Rights of the Child has expressed serious concern about the UK's treatment of children who are in trouble with the law and, in particular, our failure to establish a system of juvenile justice that fully integrates the UN Convention on the Rights of the Child. Our obligations under the UNCRC commit the UK to separating the system for dealing with children in trouble with the law from that for adults. The Government have offered no explanation of how these new provisions are believed to be in the best interests of the children to whom they will apply and, indeed, have offered no rationale at all, other than their being an extension of existing adult provisions.
There are a number of issues on which the Bill is further confused by making a distinction between the presence of an appropriate adult for testing at charge for to 16 year-olds and at pre-sentence testing for 14 to year-olds. The Children's Society and DrugScope believe that all children under the age of 18 should have the same rights to protection, including the protection provided by the presence and advice of an appropriate
adult, as dealt with in Articles 1 and 19 of the UNCRC.
In extending the drug-testing provisions of the Criminal Justice and Court Services Act to children, the Government are also creating another offence for which children may be punished by fine or imprisonment—that of refusing to provide a sample for testing. In the general context of record levels of child imprisonment and criminalisation, we are very concerned to see the creation of yet another offence for which children might be held culpable without any specific reason being given for the extension of testing to children in the first place.
4 p.m.
Baroness Scotland of Asthal: I believe we are being pulled in two opposing directions. The noble Baroness, Lady Anelay, pulls us downwards, and the noble Lord, Lord Dholakia, seeks to pull us upwards.
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That tends to make me believe that we might just about be in the right place. Perhaps I may deal with why we say that that is so.
I shall deal, first, with the noble Lord's Amendment No. 166AA. That seeks to raise the minimum age for drug testing from 14 to 18, which is the current age. As I believe the noble Lord pointed out, under Section 36A of the Powers of Criminal Courts (Sentencing) Act 2000 pre-sentence drug testing is already available for adults aged 18 and over.
The purpose of this clause is to lower the minimum age from 18 to 14 in line with other drug-testing provisions. There is strong evidence to suggest an association between the frequent misuse of substances and offending and other anti-social behaviour among young people. It is important to identify young drug-misusing offenders at an early stage and to take every opportunity to encourage them to access treatment and/or other programmes of help. We therefore propose that Amendment No. 166AA should be resisted on that basis.
The noble Baroness asked: why choose the age of 14 as opposed to 12 or any other age? The provisions of this clause provide only for testing for "specified class A drugs"—that is, heroin, crack and cocaine. That is because the Government's drugs strategy is focused on those particular drugs. Research has shown that they are currently the ones most commonly associated with drug-related crime, and they are the drugs that cause the most harm. However, research also indicates that drug abuse, among children in particular, often relates to class B drugs. That would suggest that testing children aged under 14 for specified class A drugs would not currently be an effective use of resources. Therefore, we propose to resist the amendment tabled by the noble Baroness, which is a probing amendment.
However, it is important for the Secretary of State to have the ability to amend, either up or down, the minimum age for drug testing under this clause. For example, evidence may emerge to suggest that we would be justified in extending such drug testing to include persons under the age of 14, or that testing persons aged 14 to 18 was not effective. The provision therefore enables us properly to take into account the evaluation findings of this clause, once piloted—noble Lords know that we intend to pilot it—and other research evidence received.
The clause as drafted allows the Secretary of State to act upon any evidence received and, by order made by statutory instrument, amend the minimum age. Such statutory instrument is subject to the affirmative procedure and, as a consequence, stringent parliamentary scrutiny.
I turn to Amendment No. 166B which seeks to remove the discretion of the court, so that it "must"— as opposed to "may"—order a drug test when it is considering passing a community sentence. We believe that this is unnecessarily restrictive. To order a drug test routinely in all cases would not be an effective use of resources. The proposed amendment would limit the flexibility of the court to consider the circumstances before it on a case-by-case basis; for

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example, if a recent drug test result was already available to the court, and if the offender was tested after charge or as part of an ongoing treatment programme, or openly admitted to having a specified class A drug problem and was actively seeking help, the court might not necessarily find it of any value to order a test. We therefore propose that Amendment No. 166B be resisted.
Amendments Nos. 166C and 167A seek to broaden testing under this clause to any "specified drug". As currently drafted, drug testing is limited to "specified Class A drugs" only—that may explain why. As I have previously outlined, the Government's drugs strategy is focused on those particular drugs. For that reason, those are the drugs for which testing is already taking place, both on charge and pre-sentence for adults, and for which testing will be extended to younger people under this and other provisions in the Bill.
My right honourable friend the Home Secretary already has the power under the Criminal Justice and Court Services Act 2000 to specify, by order, different or additional class A drugs. Those drugs are detailed in the Criminal Justice (Specified Class A Drugs) Order 2001. We believe that that provides sufficient flexibility to respond to any new research evidence, should it emerge, linking other class A drugs with drug-related crime. We would therefore resist Amendments Nos. 166C and 167A.
The clause as drafted provides for the presence, of an "appropriate adult" during the testing process for those offenders who are under the age of 17. Amendments Nos. 167ZA and 167ZB seek to raise the age at which a person must not be tested for specified class A drugs except in the presence of an appropriate adult, from those under the age of 17 to those under the age of 18. However, I believe that it is right to say that this would not be consistent with the other drug testing provisions in the Bill; for example, the one that we discussed in relation to testing persons in police stations (Clause 12) and on release on licence (Clause 251) or with other legislation where the presence of an appropriate adult is required.
The clause as currently drafted reflects the position under the Police and Criminal Evidence Act 1984 (PACE), in which very specific safeguards are provided for persons under the age of 17 in recognition of the vulnerability of that age group and the need for protections in the particular circumstances of police detention. We believe that the safeguard of an appropriate adult should be applied consistently across the drug testing provisions of the Bill and with PACE and other legislation.
Increasing the age to include those under the age of 18 for the purposes of this clause would necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for purposes relating to the testing process when this is not required under statute for other purposes. On that basis we therefore propose to resist Amendments Nos. 167ZA and 167ZB.
I hope that that fully explains why we have taken this course. Of course, we hope that by making the testing available it will enable the court to come to the
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most judicious and appropriate outcome for the offender and for those offended against. We really want to give the court tools to help those who are subjected to this terrible imposition of addiction to drugs to release them from it. We need the information to enable the court to do what we know will be very good work.
Baroness Anelay of St Johns: The Minister is absolutely right to direct the attention of the Committee to Clause 154 (7), which provides that the Secretary of State may by affirmative order change the age at which drug testing will be imposed. I did not follow her with as much enthusiasm when she described statutory instruments subject to the affirmative procedure as being stringent parliamentary scrutiny. I come closer to the views of the noble Lord, Lord Carlile of Berriew, that they are less than perfect in that they may not be amended. I have some injuries borne from previous parliamentary debates in relation to another department. I found that the department had cleverly constructed a statutory instrument subject to the affirmative procedure; parts of it were so benign that they were all welcomed by the House, but other parts were so objectionable that the House would have liked to dispose of them but was not able to amend them.
I accept the direction to subsection (7) but it may not be sufficient for all. In listening to the Minister's response I am grateful to her for the careful explanation. At this stage I do not intend to return to the issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 166A A to 167 A not moved.]
Clause 154 agreed to.
Clause 155 [Powers to order statement as to offender's financial circumstances]:
Baroness Scotland of Asthal moved Amendment No. 168:
Page 93, line 24, leave out from "to" to end of line 25 and insert "a fine not exceeding level 4 on the standard scale"
The noble Baroness said: This group of amendments stands in my name. Amendments Nos. 168 and 219 seek to change the maximum penalties for two offences relating to the provision of false statements regarding financial circumstances for the purposes of sentencing. These alterations of penalties have been made to ensure consistency in approach so that the relatively minor offence of providing false statements may only be punishable with a non-custodial penalty. The change in maximum penalties will make them compatible with the new sentencing framework.
The effect of the amendments will be that the maximum penalty for these offences will be a level 4 fine. Amendments Nos. 218B, 219A and 246B make similar changes to the offence of providing false statements in Section 84 of the Magistrates’ Courts Act so that it will no longer be imprisonable. The maximum penalty for this offence will therefore be a level 4 fine or a tough non-custodial penalty.
Amendments Nos. 218C and 219B make the necessary changes to ensure that an offence of knowingly or recklessly making a false statement will continue to be an

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imprisonable offence. This offence is more serious than those to which the previous amendments relate and concerns behaviour such as not disclosing a criminal record on a naturalisation application. It is therefore considered to be of sufficient seriousness to justify a maximum penalty of 51 weeks’ imprisonment.
Amendment No. 239AA ensures that the offence of disclosure of information may attract a maximum penalty of six months’ imprisonment prior to the implementation of custody plus and the related changes to maximum penalties. After this time it will attract a maximum penalty of 51 weeks’ imprisonment.
I wish to speak to Amendment No. 218A in the group, which is in the name of the noble Baroness. It seeks to retain imprisonment for two offences. Those offences are not considered to be of sufficient seriousness to justify a custodial penalty and in more serious circumstances the conduct to which they relate is covered by higher levels of offences.
Abusing or neglecting children or putting them in situations where they are exposed to danger is an offence under Section 1 of the Children and Young Persons Act 1933, and carries a custodial sentence of up to 10 years’ imprisonment. Cruelty to animals, including infuriating, ill-treating and causing unnecessary suffering, is an offence under Section 1 of the Protection of Animals Act 1911, and carries a custodial penalty of up to six months’ imprisonment. That maximum penalty will automatically be increased to 12 months’ imprisonment when the new sentencing framework is implemented.
To obviate the need to trouble the noble Baroness further in relation to Amendment No. 218A, I can assure her from looking at the statistics that since 1933 there has been only one example of a prosecution for the offence of causing a person under 16 years of age to be used for begging. So we have had 100 years of freedom. I beg to move.
Baroness Anelay of St Johns: I want to deal briefly with Amendment No. 218A. It was tabled for two purposes: first, to elicit the precise explanation that was given by the Minister, which, as I understand it, was not to worry because in fact there are more serious penalties that can attach themselves to these offences if they are so proved; and, secondly, it is a way to probe the principles which guided the Government in making up this very long list in the schedule. Is the general principle underlying this list that those offences are covered by other occasions where more serious penalties can be imposed?
Baroness Scotland of Asthal: It is. Perhaps I may use colloquial language for a moment: it was an opportunity to tidy things up and to make sure that we rationalised these offences in a way that was appropriate and made sense. We seek to create a new framework which will be clear and easy to apply. This very much helps us to do so. I thank the noble Baroness for tabling the amendment as it enabled me to give her the explanation she sought.
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On Question, amendment agreed to.
Clause 155, as amended, agreed to.
Clause 156 agreed to. Clause 157 [Fixing of fines]:
On Question, Whether Clause 157 shall stand part of the Bill?
Lord Carlile of Berriew: Perhaps I may simply probe the noble Baroness on Clause 157(1). My question is whether that imposes any additional obligation upon already hard-pressed magistrates’ clerks and understaffed Legal Advisory Services to carry out any further paper inquiries before cases are heard.
I recall an occasion when one of my daughters took a northerly turn along Great Portland Street in a part of the street which permits only southerly travel. As a result she found herself before the Marlborough Street Magistrates’ Court. When she was very politely asked by the stipendiary magistrate about her means she said that she was living as a student on finite fatherly funding that specifically excluded fags and fines. If we are talking about that kind of inquiry, which is customary at the present time, there is no problem. However, it would be invidious if we were to impose yet another paper burden upon justices’ clerks to send out yet more forms in cases which, unless people are totally impecunious, attract the same penalties more or less whatever the means of the offender.
4.15 p.m.
Baroness Scotland of Asthal: First, I commend the noble Lord on his daughter's appreciation of the exclusion of fags and fines. This provision does not change the legislation that we have already enacted in the Powers of Criminal Courts (Sentencing) Act 2000. The position remains the same. The noble Lord need not be troubled.
Clause 157 agreed to.
Clauses 158 and 159 agreed to.
Clause 160 [The Sentencing Guidelines Council]:
Baroness Anelay of St Johns moved Amendment No. 168A:
Page 95, line 34, leave out from "members" to "appointed" in line 35.
The noble Baroness said: In moving Amendment No. 168A, I shall speak also to Amendments Nos. 169, 169A, 169B, 170 to 172N, 173 A, 173B, 239B, 239C and 250A. Most of those amendments stand in my name but some are also in the name of the noble and learned Lord, Lord Ackner. Amendment No. 250A is a government amendment.
My noble friend Lord Renton has just asked me whether I had an objection to such a large grouping. I had to confess to him that it was done with my agreement. As I explained to the Committee on Monday, there are a few occasions in our considerations in Committee where we have agreed to a large grouping, simply because it gives us the opportunity to debate some of the major issues which concerned the Chamber at Second Reading. In considering them, we hope that the

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Chamber may find itself able to act as the arbiter, as we were asked to do by the noble and learned Lord the Lord Chief Justice.
Although this is a large group of amendments, it deals with a single issue—the membership and operation of the Sentencing Guidelines Council to be established by the Bill. We on these Benches welcome the establishment of the council. However, we have proposed the large number of amendments because we wish to address the concerns expressed about the detail of the Government's proposals.
On listening to the Home Secretary on the radio and television I understand that he is often given to pulling the tail of these Benches. He said that in another place my right honourable friend Mr Letwin agrees with the Government and then these Benches simply go about pulling the Government's plans apart. That is not so. Even though the noble Lord, Lord Borrie, assents, I have to disagree with him. When we agree with the Government in another place, we always clearly point out any reservations. At the moment this Chamber is still able to have time to express those reservations and to give the Government the opportunity fully to persuade us that they are right. So we wait to see.
The group of amendments gives the Committee the opportunity to consider the issue both of the membership of the council and of the role of Parliament in scrutinising the guidelines that it will produce. At this stage I make it clear that all these amendments are probing. I want to consider fully the Government's response before I decide what amendments to bring back on Report and on which to take action.
This is one of the crucial issues in the Bill where it appears that there is a difference of opinion between the executive and the judiciary. We have tried to reflect upon the arguments advanced on both sides of the debate. I refer, in particular, to the arguments put forward by the noble and learned Lord the Lord Chief Justice at Second Reading and in the paper which he deposited in the Library of this House.
When the Bill was first introduced it provided for the council to have only judicial members. In another place the Government introduced amendments to provide for a number of non-judicial members. The judiciary's view on the membership of the council has been made clear by the noble and learned Lord the Lord Chief Justice. At Second Reading, he said:
"If the council is to carry real clout, as it must if it is to be effective, its membership should be confined to the judiciary".— [Official Report, 16/6/03; col. 574.]
I invite the Committee to reflect carefully on the words of the noble and learned Lord, which contrast markedly with the assertion of the then Minister at the then Lord Chancellor's Department that the membership arrangements now in the Bill would:
"maintain the confidence of the Court of Appeal and the judiciary more widely".—[Official Report, Commons, 20/5/03; col. 915.]
If the council is indeed to be a lasting innovation and have a positive impact on the criminal justice system, as we certainly hope, its recommendations must
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command the confidence of the judiciary. Equally, they must command the confidence of the public. It is clear that the present arrangements, which provide for no scrutiny of sentencing guidelines, do not command that widespread and full public confidence which is necessary if the criminal justice system as a whole is to command respect.
So our solution before the Committee today tries to take both those factors into account. The Government's proposed membership of the council is wide. We would restore their original position—the Government's position in another place—namely that the council be composed only of sentencers. That is the key concern of the judiciary and, mindful of the objective of ensuring public confidence, the amendments then provide scrutiny of the guidelines by a Joint Committee of both Houses of Parliament. Thus, the public, police, victims’ groups and others involved in the criminal justice system should gain an input into the process through their representatives in Parliament.
In another place, the Government made much of the need for parliamentary scrutiny of the council's proposals, but the Bill provides no statutory mechanism for such scrutiny. My amendments would therefore give statutory backing to the Government's commitment to parliamentary scrutiny given in another place.
On Report in another place, the Government's view on requiring all the guidelines to be subject to the affirmative procedure in Parliament was that:
"It would be inappropriate to ask Parliament as a whole to debate and vote on the detail of every sentence. There is a huge value in not asking Parliament as a whole to vote on every single guideline".—[Official Report, Commons, 20/5/03; col. 916–7.]
We agree. So in drafting the amendments and building on proposals made by the Opposition in another place, we have taken that view into account. A vote in both Houses on every piece of guidance would not occur if our amendments were incorporated in the Bill.
The parliamentary scrutiny procedure proposed in the amendments would operate as follows. The Sentencing Guidelines Council would send its draft guidelines to the Joint Committee of both Houses. The Joint Committee would then have six weeks to consider whether to refer the guidelines back to the council. If it did not decide to refer the guidelines back, at the end of the six-week period, they would come into force through a negative resolution statutory instrument. If the Joint Committee decided to refer the guidelines back to the council, the council would then consider the committee's reasons for doing so when making any amendments to them. It would then resubmit the guidelines to the Joint Committee, which would have a further six weeks to consider and, if necessary, send the guidelines back again. If there was a clear disagreement between the Joint Committee and the Sentencing Guidelines Council and the guidelines were referred back for a third time, Parliament should act as the arbiter.
The amendments provide for the affirmative resolution procedure to apply to the guidelines in such a case. Thus the guidelines would be formulated by sentencers but scrutinised and endorsed by Parliament. We hope that the procedure established by the amendments would strike a balance. The guidelines

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would be formulated by judges but scrutinised here in both Houses in the form of the Joint Committee. In that way, we have tried to provide a mechanism that will retain the benefits of the Bill's proposal while ensuring that the process will command the confidence of the judiciary, Parliament and the public.
My right honourable friend Mr Oliver Letwin said of the Bill at Third Reading in another place:
"One of its best elements, although we have not quite agreed on its form, is the process that it seeks to establish for deciding on sentences. We can argue about the precise format of the process for agreeing sentences, but it is common ground between the Government and us that there needs to be a transparent and proper process so that none of us wakes up on a Monday morning and suddenly discovers that the guidelines have been altered, that the Home Secretary and the Lord Chief Justice are locked in mortal combat. Indeed, combat should be avoided on the whole in the proceedings of this nation".—[Official Report, Commons, 20/5/03; col. 970.]
My amendments seek to avoid any confrontation and combat; they seek to provide a pragmatic answer to the questions that have been posed in both Houses; and I hope that they achieve a consensus. I beg to move.
Lord Ackner: There is a great risk here of the situation being overcomplicated. Before the Bill was drafted and for the past two or three decades, the Lord Chief Justice, starting with Lord Lane, grouped together cases to be considered by the Court of Appeal, which enabled him and his court to lay down guidelines. Some years ago, I deposited a book of them in the Library. They have never been criticised. They have been there for all to see. The only criticism that has arisen is recently, with regard to burglary, where the Lord Chief Justice was misunderstood—I shall not say misread, but not adequately read—and those criticisms were put right.
So, for decades, the judiciary has dealt with the matter without criticism. Indeed, when one considers the length of time during which the Attorney-General has had the power to intervene if sentences were seriously below what they should have been and how little use he has made of this power, there could be no better indication that the previous position has worked perfectly well.
The judiciary has indicated, through the Lord Chief Justice, that it is not averse to receiving and considering advice from those who want to give it. I think that it was in 1998 or 1999 that the Sentencing Advisory Panel was set up. The panel was and is presided over by a professor; a Member of this House is also a member of the panel; and it has the advantage of a number of lay members.
The panel's function is to put forward its view on guidelines. To obtain the necessary material on which to base a recommendation, it consults any parties that it thinks may be interested and have a contribution to make. In other words, the panel goes out to the public to say, "Tell us your views; we should like to know". There is your transparency. The Court of Appeal is required to have regard to the advice from the panel in laying down future guidelines and if the Court of Appeal is minded itself to take the initiative, it is obliged to consult the panel.
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On Monday, I referred to the fact that there are 10 particular classes of cases that have been the subject matter of advice from the panel which has been adopted by the Court of Appeal and guidelines promulgated based on them. The panel was asked for its views on sentences involving the most serious kinds of crimes; in particular, murder. It produced guidelines of which the Court of Appeal was in favour. They were submitted to the Home Office, the Lord Chancellor and the Attorney-General, who suggested small modifications that were incorporated. Last year the guidelines were brought into force by a practice direction issued by the Lord Chief Justice.
A perfectly simple arrangement existed before the legislation whereby the Court of Appeal, after due and proper consultation, laid down by a transparent process guidelines that were in no way criticised. Then comes this legislation, under which the Court of Appeal is no longer to perform the task that it has carried out without criticism for many years. Instead, there is to be a Sentencing Guidelines Council presided over by the Lord Chief Justice. Originally, it was to consist purely of sentencers. The Lord Chief Justice was prepared to accept that arrangement because it would be the Court of Appeal differently constituted that issued its guidelines after all the proper consultations.
Then, to the profound irritation of the Home Secretary, the Judicial Committee of this House decided that a Member of the Cabinet, or a politician of any kind, had no proper input as regards how long a person should stay in prison. It decided that it was a judicial matter to be dealt with by the judges and that, accordingly, the Home Secretary should no longer interfere with the judiciary's advice in murder cases.
We know from debates in this House how unceremoniously the Home Secretary reacted. He showed, I am sad to say, a complete misapprehension of the basics of the rule of law, overlooking entirely the fact that the judges in the House of Lords were performing their obligatory function of applying the rule of law. The Home Secretary fell out with the Lord Chancellor on the matter. The Lord Chancellor, before a committee of this House, made an observation to the effect that it was inappropriate for the Government to cheer when the courts produce a decision of which they approve, and then to attack judges when they produce a decision of which they disapprove. Their function was to go to the Court of Appeal. Indeed, an appeal was pending when the Home Secretary made his intemperate observations. Another case went to the Court of Appeal, which upheld the decision of a judge on a matter, relating to immigration, which particularly got under the Home Secretary's skin.
The Home Office then sought a clearer input in sentencing to be made by Parliament. It therefore seeks to set up the Sentencing Guidelines Council under this legislation. But it now seeks to add laymen to the Sentencing Guidelines Council. It does not propose a majority of laymen—not yet—but the

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Home Secretary wishes to take the power to vary from time to time, as he thinks it appropriate, the component parts of the council.
The panel to which I referred on Monday last represented to the Minister its dislike of the situation on the grounds that it was being duplicated by laymen on what should have been a judicial committee. The following question arises: why should not any of those highly desirable non-judicial members be on the panel? The panel is the source of advice from the public and can be insulated from Parliament, so the input would be entirely by the panel.
The noble Baroness, Lady Anelay, has not referred to judicial discretion. How is that to be safeguarded? The judges are to lose, or have lost, for practical purposes a champion or semi-champion in the shape of the Lord Chancellor. The Secretary of State for Constitutional Affairs has offered to take on a statutory obligation to look after the judges. But he has not offered to take on what was the declared and accepted obligation of the Lord Chancellor—that safeguarding the judiciary should be his main or essential duty. I would be very surprised if that obligation was acceptable to the Secretary of State.
It seems entirely unconstitutional that the Sentencing Guidelines Council, having taken the advice of the panel and heard all that it should do from the public, should send the matter back to Parliament so that it has the last say on the judicial function of sentencing. Parliament sets up the framework, which is the maximum sentence, and the judge's function, subject to the intervention of the Attorney-General and the Court of Appeal, is to sentence justly according to the facts of a particular case. The suggestion that there should be resubmitted to Parliament the proposed decision of the Sentencing Guidelines Council is an interference with the discretion of the judiciary.
In the past I have referred noble Lords to my experience as one of a team of judges sent by the Council of Europe to Russia, shortly after Russia had freed itself from its Communist bonds, to take part in a sentencing conference with Russian judges. I had met a Russian judge—the chief justice of Russia—at a conference a couple of years before in Kuala Lumpur. He was judge Terribilov and I have little doubt from his size and general manner that he lived up to that name. However, on this occasion they were interested in the European approach to justice. I learnt of the existence of "telephone judges", who, before they embarked on a trial, were rung up by the prosecution and told that their function was to find the person guilty. The appropriate sentence was spelled out.
Strangely enough, about a year later, at a dinner given in the Cavalry Club by the former Attorney-General, Lord Rawlinson, I sat next to the chief Russian prosecutor, with an interpreter sitting behind us. I innocently asked about the "telephone judges" and he said, "Yes, quite right. Having done all the research into a crime, we aren't going to allow the judges to mess about with the proper result"—hence, the "telephone judges".
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I am not suggesting that we have reached that stage, but we are moving towards it. In Britain, judges are permitted to make the initial decision. They do not refer it back to Parliament and Parliament does not make the final decision about the right answer. I am sorry to disagree with the noble Baroness, Lady Anelay of St Johns, but it is nonsense. A simple process is being turned upside down largely because of the irritation of the Home Secretary in finding that European jurisprudence, which he took on board with such enthusiasm led by the then Lord Chancellor, has redounded to his dismay.
Accordingly, I will urge the Committee in due course to do as I have done in my amendments—Amendments Nos. 169 and 170. This would remove the non-judicial element from the Sentencing Guidelines Council. In particular, in Amendment No. 173, I would add the following to the end of Clause 165:
"Nothing in subsection (1) shall fetter the judges' overriding discretion in the individual case to set the sentence he thinks is appropriate."
That is the position in a nutshell.
Lord Dholakia: We support much of what the noble Baroness, Lady Anelay, has said, except that we disagree about the membership of the council. Our amendment is designed to probe the Government's intention in relation to widening the representation on the Sentencing Guidelines Council. In the Commons, the Sentencing Guidelines Council was originally to be made up of members of the judiciary. We supported amendments tabled by Graham Allen to include at least one of each of the following people: a police officer, a probation officer, a prison governor, a representative of a victim's organisation, a representative of the business community, a teachers’ representative, lay members of the public one of whom should be over the age of 50 and one under 18, a representative of an ex-offender's institution, a local government crime and disorder partnership representative, a legal professional and a social service representative.
The Government accepted the argument that it would be useful to have non-judicial representation on the council and amended the section accordingly, which we support and for which we are grateful. However, we feel that there may be some gaps in the new subsection (4) that leave out the type of experience that the Home Secretary would be looking for in the non-judiciary members. We would like to ensure that someone on the council has experience in the rehabilitation of offenders rather than just their punishment by imprisonment. Also, the remit of the council appears to be to deal with sentences of all types for all people, but there is no representative present who has dealt with young people in the criminal justice system, who we believe should be dealt with in a different way to adult offenders.
The Government may say that these points have already been covered in the criteria in subsection (4), but it would be useful to have an explanation on record of the type of people the Government have in mind when appointing the non-judicial members of the council.
4.45 p.m.
Viscount Bledisloe: I was not intending to take part in this debate, but I was amazed by what I heard emanating from the Conservative Front Bench. Unless I have misunderstood, the whole thing is absolutely extraordinary. I had thought that the thesis on which the Conservative Front Bench and its followers who are conducting this Bill was that it was all right for Parliament to fix maximum sentences, but the rest must be left to the judiciary. However, we now find the Conservative Front Bench proposing that all guidance on normal sentences should go before a committee of Parliament and, at the end of the day, Parliament should have the overriding power to fix what those norms should be. If Parliament is to fix maxima and norms, why is it so extraordinary for Parliament not to be allowed to fix minima? 1 hate the idea of Parliament being able to fix minima, so I am therefore disgusted at the idea of Parliament having the final say in fixing the guidelines. It seems that those opposite are standing on their heads.
Baroness Anelay of St Johns: It may help the Committee if I briefly explain this point again. Our intent is to provide a reflection of what I said on Second Reading, which was endorsed, as the noble Viscount might recall, by the Lord Chief Justice. We have tried to reflect that and tried to explain that we thought that there was a role for Parliament. We seek to find what that role is. I have made it clear that I will not vote today on any of the amendments in this group, even though I have put my name to some that are also in the name of the noble and learned Lord, Lord Ackner. I have no intention of voting on those today, but I genuinely seek the opinion of the Committee. I am delighted that the noble and learned Lord is, as ever, robust in his views.
Lord Ackner: Does the noble Baroness recall, as I do, that the noble and learned Lord the Lord Chief Justice, in the memorandum deposited in the Library, made the point that, until now, there had never been any suggestion that the judge's decision on the right sentence should be referred to Parliament for its approval? He added that doing so would be out of harmony with the constitutional position, under which the judge fixes the sentence.
Baroness Anelay of St Johns: I ought to answer that question before we go any further. My amendments would not represent a diktat on what a sentence should be; they would leave it to the discretion of the judge in each case to make his decision on the facts of the case. I realise that, in saying that, I sound horribly like the Minister, who seeks to justify the Government's position on the same basis—when push comes to shove in court, the judge will still have the opportunity to make the decision in those cases.
I seek simply to find a way to resolve what appears to be an impasse. The firmness of that impasse is rapidly becoming clear.
Lord Borrie: Before the noble Viscount, Lord Bledisloe, got up, I was going to say that there were two matters on which I agreed with the noble and
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learned Lord, Lord Ackner. One was the point, which the noble Viscount, Lord Bledisloe, enunciated—I agree with the point—that for Parliament to get involved in approving or amending the statements of the Sentencing Guidelines Council would be a step too far. It is inappropriate for Parliament—the legislature—to go further than to do the kind of thing that appears in Clause 135; namely, setting out the purposes of punishment. To go further than that would be to involve the legislature in something that is not its business. The noble Viscount rightly drew attention to that because of the difficulty of understanding the points made by the noble Baroness.
The other point that the noble and learned Lord, Lord Ackner, made with which I agree entirely is that the ultimate discretion to determine what sentence should be imposed in the individual case must be that of the judge in that case. There is no point in my anticipating what my noble friend the Minister will say, but, as I understood the debate the other day. she said that that existed fundamentally and would continue to do so when the Bill was passed.
I want principally to deal with the narrower point of the membership of the council. Should there be members of the council who are not judicial? There, I am afraid, I disagree with the noble and learned Lord, Lord Ackner, and, therefore—with the utmost respect and, I hope, restraint—with the views of the noble and learned Lord the Lord Chief Justice. On that point, I was encouraged by the noble Baroness, Lady Anelay of St Johns, who said something to the effect, I think, that membership of the council must have the confidence of the judiciary and of the public. The public includes not just the general community of everybody but members of the community who are involved with crime, in particular, such as the police, probation officers and others concerned with sentencing, particularly if the sentences involve imprisonment. The principles of sentencing involve members of the public.
When the Committee discussed generally the principles of sentencing a couple of days ago, I suggested that, properly, there was some similarity or some analogy in composition between the Parole Board, of which I was a member many years ago, and the new council. The Parole Board has always, as I understand it, been composed of judges, representatives of the police, the probation service, criminologists and psychiatrists. Although we are in Committee, I am not concerned here with all the detail, but that list is not dissimilar to what is proposed in Clause 160.
We should bear it in mind that the Parole Board is a decision-making body and that the Sentencing Guidelines Council is an advisory one. For the past 30 years or more, it has been thought appropriate to include non-judges in decisions about the sentences that are actually served by prisoners, after the Parole Board has examined their cases for early release and so on. That is significant. My experience, old though it is, is that the composition of the Parole Board suggests that diverse skills can be useful in the sentencing process.

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Our chairman, who was a Member of the House, was Lord Hunt of Llanfair Waterdine, more familiarly known as Lord Hunt of Everest. He was not a judge; he was a military man who became famous, just about 50 years ago, when he got to the top of Mount Everest. The Committee will appreciate that deference to judges was, perhaps, greater 30 years ago than it is now. Lord Hunt was concerned that, with the mixed membership of the Parole Board, the judges should not snaffle the chairmanship of every panel. They have a tendency to want to be the chairman, but Lord Hunt said, "No. We should take it in turns. One day, it might be the psychiatrist; another day, the policeman; and on another occasion, the High Court or circuit judge". That was done because it was appreciated that, otherwise, the judges might be a little too strong-willed and the rest of us too deferential to them.
The essential point that I want to make is that judges have tremendous experience. They are to have the majority on the Sentencing Guidelines Council. It is proposed that a minority should be non-judges, drawn from the various groups in society that have knowledge of crime and punishment. That seems appropriate.
Lord Carlisle of Bucklow: I bow to no one in my admiration of my noble friend Lady Anelay of St Johns for the way in which she has conducted the business on the Bill from the Opposition Front Bench. Not only has there been this Bill but, in the past year, there have been various other Home Office matters, one after the other, and one must be full of admiration for the way in which she has conducted the debates. I am afraid, however, that I must say that, on the point raised by the noble Viscount, Lord Bledisloe, I find myself on his side. The suggestion that, in the end, Parliament should, in some way, influence the sentence that is passed or the sentencing guidelines is one that the Opposition Front Bench might well decide to leave aside.
In the debate, we are concentrating on the composition of the sentencing council. I confess to be being open-minded. I appreciate that the noble and learned Lord the Lord Chief Justice has expressed the view that it should include only members of the judiciary. Obviously, that view must be taken into account. I am concerned at the fact that policing is identified as one of the areas from which the lay members could come.
I listened with interest to the noble Lord, Lord Borrie. He was a distinguished member of the Parole Board. I was never on the board, but I conducted a review of its workings. It is right to say that the Parole Board has been chaired by members of the judiciary and non-members of the judiciary. The noble Viscount, Lord Colville of Culross, was, I think, the exception, as a member of the judiciary who chaired the board. The board has always drawn membership from different aspects of public life and has drawn its strength, in some ways, from the fact that, as the noble Lord, Lord Borrie, said, the chair was
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always rotated and the views of others as well as the judiciary were listened to on the subject of when a man should be released.
I am sure that I am wrong, but there is one matter that I question. I know that the noble Viscount, Lord Colville, will put me right if I am wrong. I am not sure that it is right to say that the Parole Board always had representation from the police. It certainly had the other bodies mentioned. I cannot remember whether the police were on it or not. I thought not, and I query whether the police are the right people to be on the sentencing council. There are arguments both ways. A strong element of the Parole Board was that it was not totally composed of the judiciary. In fact, it was a minority judicial and a majority from other bodies.
I support the noble and learned Lord, Lord Ackner, on Amendments Nos. 171 and 173 particularly, which are being discussed in this group. Amendment No. 171 leaves out a subsection which specifically states that civil servants should be able to be members of the sentencing council. If there is anyone who should not be a member of the sentencing council, it is the civil servant. On looking at the areas of expertise required, it is really stating that one of them may at any time be a civil servant from the Home Office. With great respect to civil servants in the Home Office, they are not the right people to be on the sentencing council, which is to be set up by the Home Secretary. On that point I agree strongly with the noble and learned Lord, Lord Ackner.
Amendment No. 173 comes back to the debate on Clause 135 about the use of the word "must". Clearly, guidelines should carry great weight with the sentencing authority. However, the Bill states that courts must have regard to the guidelines. So long as those words indicate the necessity to take account of the guidelines or to have regard for the guidelines, I think that the noble and learned Lord, Lord Ackner, is right. It should be made clear that that does not overrule the overall general discretion of the judge to make the appropriate sentence according to all the facts of the case. It is the same argument as we had on Clause 135. It will not benefit anything by repetition. I probably spoke too long on it on Monday anyway. But the noble and learned Lord, Lord Ackner, is right. If every court "must have regard", it must be made clear that "must have regard" does not mean that the guideline is bound to be imposed on every case. There must still be an overriding discretion with the judge who hears all the facts.
5 p.m.
Lord Ackner: Before the noble Lord sits down, would he agree that the analogy of the Parole Board has very much a limited value? As I recall, the Parole Board's function was to evaluate risk. It was concerned about whether a person should obtain his

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liberty having served the necessary part of the sentence. Is that not a different matter from deciding what is the appropriate just punishment?
Lord Carlisle of Bucklow: I accept that the analogy with the Parole Board is not complete. The noble and learned Lord is right: its main task is to assess risk when it comes to release. I still think that there is a point in what the noble Lord, Lord Borrie, said, which is that on the board there was experience and expertise which came wider than merely judicial. I am open-minded as to the two arguments. I tend to think that it is right probably to have some lay members on the sentencing council. I am not saying that it is an exact analogy.
Viscount Colville of Culross: First, a word on the Parole Board. I was not on the Bench at the time that I was chairman of the Parole Board. It simply would not have been practicable to do both at the same time. But I support the noble Lord, Lord Borrie, about police officers. I do not think that we had any serving police officers during the time that I was concerned with the Parole Board, but we certainly had some very distinguished retired ones. The great advantage of the Parole Board and, indeed, perhaps I may say, another organisation that I chaired before that—the Mental Health Act Commission—was that it was multi-disciplinary. The disciplines contributed greatly to each other. I am not against multi-disciplinary organisations of this sort. I would reinforce the possibility that an experienced policeman might be a very valuable member.
That is not what I intended to address. The problem that I see —raised by the noble Baroness, Lady Anelay— in the method of ping-pong between the council and the Select Committee of Parliament is as follows. At present, we have a series of guideline decisions which come from the Court of Appeal. They are set out at the beginning of a passage referring to a particular offence in a large encyclopaedia which gives guidance on sentencing. They, of course, can be revised from time to time, as they are. That role of the Court of Appeal is to be assumed by the council and the panel will advise it.
Where I see difficulty in the noble Baroness's proposition is this: I cannot believe that the council will be able to address guidelines for all the offences which come before the Crown Court on indictment. There are hundreds of them. If one looks at the present encyclopaedia, it becomes immediately apparent that there is a very large area of criminal law on which there are no guidelines at all. It will take quite a long time for this to be put right, if ever. It may be that there are some kinds of offences which are so rare or so recondite that it is not worthwhile the council dealing with them.
If that is to be the case, Parliament will have no input because there will not be any guidelines to comment on. If one wants to have a wider input into the guidelines process, what seems to be much more important is, first, the role set out for the panel, which I think exists already. It can put forward propositions to the council about a particular type of offence or
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range of offences where guidelines are needed and perhaps do not yet exist. Secondly, there is. an input from Parliament in that there will be the annual report. That comes later. If the annual report is debated in either House, presumably it is possible for Parliament to say, first, that it does not like the guidelines on rape or whatever, and, secondly, that in view of current offences being committed in a particular field, it is high time that the council panel and the council apply their minds to laying down guidelines for that range of offences.
That is much more flexible and realistic than expecting Parliament to take part on a regular basis, not only as regards the original guidelines, but presumably also as regards the revisions provided for in this part of the Bill. Therefore, Parliament will have its say at the end of each year when the report comes before it. There will be an opportunity for a large range of people to suggest to the council in what areas guidelines need now to be considered and to be laid down. That will be much more satisfactory than a very complicated parliamentary procedure whereby, in the end, Parliament may have the final word, at any rate for the moment. But I cannot believe that it will necessarily persist for ever because there will be further suggestions from other people— from the panel or from the public—that what has finally been established on that occasion is, in fact, wrong and needs to be revised.
So I would suggest to the noble Baroness, Lady Anelay, that what she has put forward is excessively complicated, is unlikely to cover the field and really could be better achieved by other means.
5.15 p.m.
Baroness Scotland of Asthal: I was so fascinated by the debate that I almost forgot to stand. I thank all noble Lords who have participated. This debate has clearly demonstrated the breadth of the issues with which we now have to deal. It is right that the Government themselves started from the position that the composition of the council should be restricted to judicial members only. Noble Lords will know, not least from having had the advantage of reading the Hansard reports of the debates held in another place, just how that debate expanded, thickened and ultimately arrived at the point at which the Government were content to bring forward their own amendment. It took up the thrust of what had been said in relation to this matter by my honourable friend Graham Allen, together with a number of other Members.
It was right for the noble Lord, Lord Dholakia, to outline the genesis of how we have come to arrive at this position. Further, there is a balance to be struck between what has been said by the noble Baroness, Lady Anelay, about the changes she wishes to see and that which has been said by a number of other noble Lords. I see clearly the force of the comments made by the noble Viscount, Lord Bledisloe, supported so eloquently by the noble Lord, Lord Carlile, and my noble friend Lord Borrie. I do not think that it is necessary for me to underline what appeared to be inconsistencies in the arguments put by the noble

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Baroness. However, I add my compliments to the noble Baroness for so robustly putting forward her case, not only on this matter but also on other issues in relation to this and other Bills on which she and I have both travailed.
This group of amendments has two distinct elements. The first seeks to remove non-judicial members from the council and to make consequential amendments, save for one amendment which seeks to increase the range of experience which non-judicial members would bring to the council. The second group seeks to remove the final decision regarding a guideline from the council and to give it to the Lord Chancellor, acting on decisions of a Joint Committee of Parliament.
I have already outlined the origins of these arrangements. However, it is right to point out that the balance remains very much in favour of the judicial members. When looking at these provisions, I am sure that the noble and learned Lord, Lord Ackner, will have recognised that they provide for a judicial majority on the council: the Lord Chief Justice as chairman with seven other judicial members drawn from each tier of the court, as well as five non-judicial members. Together they will cover the whole spectrum of a criminal case from detection of the offender to completion of the sentence. That reflects very much the fact that sentencing does not take place in isolation and is part of the process of dealing effectively with crime—a very important part, but still a part.
It is expected that everyone appointed to the council will be of the highest calibre, highly regarded, independent minded and able to contribute effectively to the production of guidelines of the highest quality that will justifiably command the respect not only of the judiciary, important though quite clearly that is, but also of practitioners, of the wider public and of Parliament.
This is no mean task. The council will draw on the advice of the Sentencing Advisory Panel, which has earned very considerable standing and respect since it was created in 1999. Indeed, a number of noble Lords referred to the quality and nature of that advice. The panel will continue to draw its membership from a wide variety of backgrounds and it has demonstrated that it can undertake the extensive thought and consultation that is necessary.
The seventh report of the Constitution Committee of your Lordships' House drew attention to a number of concerns, without necessarily endorsing them. The committee recorded the concerns of the Lord Chief Justice and two of our most eminent academic lawyers. Stated simply, those concerns highlight the position of guidelines between legislation and individual decisions and the questions that that raises about whether the council should be regarded as a judicial or a quasi-judicial body.
The framework that Parliament seeks to provide is simply the skeleton. It establishes the key principles, defines the offences, prescribes maximum punishments and sets out when certain types of sentence are available.
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Guidelines provide the skin on that skeleton, filling the gaps and protecting the vital organs that give life to the body. But it is the judiciary who are the living organs that make the whole thing work. The noble Viscount, Lord Colville of Culross, was right to highlight the contrast between the different functions and what can be brought to the process by enriching it with the expertise brought to it by others.
I again wish to make it very clear that the new framework strongly depends on the independence, expertise and acuity of our judiciary. Turning again to the framework, contrary to what has been said elsewhere, our judges—be they lay or professional— are being asked to do an even more difficult and stretching job. That is because we hope to give them the tools to enable them to do that which many of them have wanted to do for a long time. Not only will they deal with the single offence that comes before them, they will deal also with the causes of offending.
I know that a number of noble Lords will have participated in that process and will have known the frustration felt when they were not able to do that which they would have liked to do in order to break the cycle of offending behaviour. The framework to be given to the judiciary—whether they caution, caution with conditions or without conditions; whether they fine and make that fine conditional upon other conditions; whether they do or do not order therapy; whether they order an immediate custodial sentence or an intermediate sentence; whether they refer—will now make available all those options.
The Government recognise that the particular expertise in devising guidelines that judges and magistrates have built up over many years is extremely valuable and agree that the judiciary has a crucial part to play in creating the guidelines. That is why we have ensured that the judicial members will be in the majority on the council and why we have provided that the council should be responsible for producing the guidelines rather than Parliament itself.
However, the range of legitimate interest in the level of sentencing and the approach to different offences is much wider. All of society has an interest in sentencing. The criminal law is the state acting on behalf of society as a whole, and the Government's proposal enables the wider interest to be brought in while still leaving the final decision with a body of very high calibre—and with a judicial majority. I want to emphasise that the expanding nature of the role is going to be reflected in the expanding membership of the council.
The council will commission advice from the Sentencing Advisory Panel, which has a wide membership and consults actively and even more widely. After the council has received the advice of the panel, it will also consult. Although this can be as widely as the council wishes, it is primarily for the purpose of taking the views of Parliament and of Ministers. We do not wish to see Parliament or Ministers and the judiciary at loggerheads. That period of consultation will allow for a considered

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contribution from every part of Parliament, but still the final decision will rest with the council which, again, is to have a judicial majority in its membership.
I know that specific objection has been made to the possibility that a civil servant should be a member of the council. That issue was raised by the noble Lord, Lord Carlile, and echoed by the noble and learned Lord, Lord Ackner. The Government expect the route to appointment to the council to be a mixture for both the judicial and the non-judicial members. Some will be by virtue of the office held, and some after a form of open competition.
The importance of doing so is plain. For the non-judicial members, the current thinking is that two of the five members will be appointed by virtue of the office they hold, and three after open competition. The two ex officio members are likely to be the Director of Public Prosecutions, who will bring experience of criminal prosecution, and the Commissioner for Correctional Services, who will bring experience of sentencing policy and the administration of sentences. Both are civil servants. But they will be appointed to an independent body, established not only as a non-departmental public body—with the usual obligation to adhere to Nolan standards—but in circumstances where the grounds on which they can be removed from the council are restricted and appear on the face of the Bill. Making independent decisions is an essential part of the role of the Director of Public Prosecutions.
Lord Clinton-Davis: Is there not a case for specifying in the Bill the civil servants who are not eligible? It has been argued in the debate so far that certain civil servants would not be appropriate for consideration for the panel and the point made by the Minister is also sensible and highly regarded. What worries many people, not only in the House but elsewhere, is that any civil servants will be eligible.
Baroness Scotland of Asthal: I understand the force of what my noble friend says in relation to that issue. We shall certainly look at the matter. However, we have already considered the issue to the extent of whether it would be proper to restrict those appointments to the offices of the Director of Public Prosecutions and the Commissioner for Correctional Services, particularly bearing in mind, as my noble friend will know, that those offices may change over time. I had hoped to give the Committee an indication of the way in which we propose to exercise and appoint in the hope that that would clarify the way we are thinking. I shall certainly take away what my noble friend has said.
Lord Carlisle of Bucklow: It is fair to say that where the Bill refers to "civil servants" one does not immediately think of the Director of Public Prosecutions. Those who have held that role have always been looked upon as independent members of the Bar or solicitors, not as civil servants. If that is what the Government intend, would it not be better to specify that the Director of Public Prosecutions should
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be one of the people on the sentencing council rather than by covering the issue with the words "any civil servant"?
Baroness Scotland of Asthal: I was describing the difficulty. I understand what the noble Lord says. I have already indicated to my noble friend Lord Borrie that it is a matter I shall be happy to take away and think about. However, the reality is that technically he is a civil servant—although the noble and learned Lord is absolutely right to say that none of us has ever thought of the Director of Public Prosecutions as a civil servant. Indeed, the role that the Commissioner for Correctional Services currently plays is similarly looked upon as being very independent. He serves within a separate body and performs a very independent function.
Lord Mayhew of Twysden: Does not the Commissioner for Correctional Services come from a background of a Home Office civil servant, a Home Office official, by way of the Director of the Prison Service? That is quite separate from the career of a typical Director of Public Prosecutions, is it not?
Baroness Scotland of Asthal: It depends on whether noble Lords consider that that is an advantage or a disadvantage. If one has an intimate knowledge of the structure and the running of prisons and so on, that brings with it a certain degree of expertise in how to inform policy on the use to which prisons can and should be put. It thickens the soup. It also brings a degree of independence because it relates not to mainstream Home Office business but to a body which carries out its functions separate and apart even though it comes under the responsibility of the Home Secretary.
I understand the concern about mainstream civil servants. There is always the question of how the individual will balance his obligations to Ministers with his obligations as a member of an independent body. Even if he can, will the wider perception still be that he is somehow the tool of the Home Secretary?
In his response to the Select Committee of the House referred to earlier, Dr Thomas speculated that the driving force behind the proposal to create a sentencing guidelines council is a desire for the Home Secretary to exercise greater control over sentencing. That is very much the thrust of what the noble and learned Lord, Lord Ackner, sought to say about my right honourable friend the Home Secretary. Dr Thomas pointed to the involvement of the Home Secretary in appointing members; the power of the Home Secretary to request the council to formulate a guideline; and the obligation of the council to consult the Home Secretary on a draft guideline.
The first two of those observations simply follow on from the equivalent provisions that already exist in relation to the Sentencing Advisory Panel. The third and most significant is actually designed to reinforce the proper independence of the judiciary. It recognises the responsibility of the Home Secretary for sentencing policy and provides a process for positive and helpful

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dialogue before guidelines are made, but it again leaves the final decision with the council, which will have a judicial majority.
If appointed, the Commissioner for Correctional Services will bring unique experience of what happens within the correctional services, coupled with wide understanding of sentencing policy issues. As a normal part of his daily responsibilities, such a person will advise Ministers with complete integrity. We can expect such a person to act independently and with integrity as a member of an independent council. We are talking of people of the highest calibre, working in an open environment where it is very unlikely that progress will be made unless there is consensus.
The council will be independent; its members will be independent; there will be no infringement of the principle of the separation of powers.
I agree with those who believe that the council will be enhanced by the membership of others who have different skills. We need to remember the context in which we are discussing sentencing. As never before, there is a good deal of public disquiet about the criminal justice system. We know that the recorded levels of confidence in the system and in sentencing is low. Those of us who know a number of judges and magistrates are well aware how able and committed they are and how difficult is the job that they carry out on a day-to-day basis in our courts across the country. However, the perception does not always follow the reality and we need to build a system in which people feel a greater degree of confidence and empathy.
The next group of amendments raises the important issue of who should have the final responsibility for agreeing the content of the sentencing guidance to which a court must have regard when fixing a sentence. This function is currently performed, as the noble and learned Lord, Lord Ackner, said, by the Court of Appeal (Criminal Division). The Bill provides that it will be undertaken by the Sentencing Guidelines Council, which will have a judicial majority. If adopted, the effect of the amendments would be to take the power away from the council and, in effect, give it to Parliament, operating through a Joint Committee of both Houses. I believe that, on balance, the debate today has indicated that that would be outwith the desire of the Committee.
There is no question that Parliament will have every opportunity to contribute where it wishes, bearing in mind that there are well over 2,000 offences that are likely to be susceptible to guidelines in one form or another. I do not anticipate that Parliament will want to give the same level of consideration to each. The noble Viscount, Lord Colville, was right when he said that the Court of Appeal has concentrated on specific matters. There are offences which have never been subject to guidelines, and there may in the future be offences which will follow that pattern. However, as the noble Viscount also rightly says, there is a plethora of offences which would benefit from guidelines.
The council will have the opportunity to look much more broadly than the Court of Appeal Criminal Division has hitherto. One must not forget that
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members of the Court of Appeal, extraordinary as they all may be, are still mortal; they do, like Ministers, occasionally need sleep, though not a great deal; and there is a lot of work for them to undertake.
5.30 p.m.
Viscount Colville of Culross: May I interpose for one moment? The other difficulty is that the Court of Appeal can issue guidelines only if it has a group of suitable cases on appeal before it. If there are no cases on a particular subject, it never gets the opportunity to produce guidelines.
Baroness Scotland of Asthal: The noble Viscount is absolutely right. The council will be able to undertake a proper review of those issues which need and would benefit from guidelines but have hitherto not been subject to guidelines.
Viscount Bledisloe: When the noble Baroness says that members of the Court of Appeal need sleep, is she suggesting that that is when they are sitting or at other times?
Baroness Scotland of Asthal: I think they would benefit from the odd respite at night. I empathise with them because I, too, and, I think, the noble Baroness, deeply desire such an opportunity.
Lord Ackner: May I intervene once more? Reference has been made to the difficulty the Court of Appeal may be in because of the absence of cases that can be brought before it in order to enunciate guidelines. That does not exist any longer because the panel is there to initiate any guidelines that it thinks ought to be considered. It then consults widely outside and produces the material to the Court of Appeal.
Baroness Scotland of Asthal: The noble and learned Lord, Lord Ackner, is right. He also knows that the purpose of the council is to take the role that is currently being adopted by the Court of Appeal, which the Lord Chief Justice accepted as a right and proper thing to do. The issue about which we are not in agreement is whether the composition of the council should be more broadly based than that of the judicial committee. If I may respectfully say so, we are not necessarily disagreeing that there has to be and should be a council. The import of these amendments is the composition of that council and whether non-judicial members should be a part of it.
The breadth of the people involved suggested by the noble Lord, Lord Dholakia, would make the membership far too large to be effective. Under these proposals, the council will have a chairman and 12 members. This seems a very effective size, considering the task being undertaken.
There is a further amendment that, while accepting the number of non-judicial members, seeks to increase the range of experience that those five members bring so that they also bring experience of rehabilitation of offenders and of young offenders. These are two key areas but they are already included within the fifth area

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of experience of sentencing policy and the administration of sentences. At the moment, we have five areas of experience and five non-judicial members. It would be dangerous to expand those areas too much and not wise to include these particular categories, which are narrower than those presently provided.
The council will have an obligation to take into account a wide range of issues and will have to have access to a great deal of information, but it is not necessary to specify that these two areas are included. We of course have the benefit of the advisory panel which has a very broad spectrum of expertise into which the council will be able to dip. Indeed, it can make specific requests and inquiries of the panel to provide that information if it finds that that is outside its experience or knowledge. It is an opportunity to pull those two bodies together.
I know that some have said that having the panel means there does not need to be any lay membership on the council. Similarly, it is argued that having a lay membership on the council means you can get rid of the panel. We believe that you benefit from both. The panel can concentrate and hone in on the wider research and other issues that will better inform the council, which will then, because its membership is broader, be able to evaluate that evidence and the information that it is given and come to an appropriate consensual position on how to deal with matters.
The points raised by the noble Lord, Lord Carlisle, and the noble Viscount, Lord Colville, have, if I may respectfully say so, been very well made. I of course understand the concern and fear expressed by the noble and learned Lord, Lord Ackner. I also understand why he should suggest that in some way these provisions have sprung out of an irritation created by my right honourable friend the Home Secretary. However, that is just not right. The starting point, as the noble and learned Lord knows, was a council with no lay element. That was our preferred option at the inception. But what has happened, as the Bill has gone through the other place and has now come to this place, is that the Government have listened to the arguments that have been very forcefully made, accepted that they are sound and sought to incorporate that thinking into the way in which we framed the new provisions.
We are trying to create a system which is even more fit for purpose than the one we have. It is always tempting to say that we are already in the best of all possible worlds and no further improvement is needed or necessary. We know that that is not true and are attempting to craft something that will enhance the opportunity we all have to get this system right, so we have a system of which we can all be proud.
I do not resile for a moment from saying that the system we are seeking to pursue in the Bill will inure to the benefit of the citizens, be they victims, witnesses or defendants. We want fairness, we want clarity and we want a system which is capable of being applied with parity right across the piece.
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With those comments, I invite the noble Baroness not to press any of her amendments and to do just what she said—to probe and, I hope, not to return.
Baroness Anelay of St Johns: I can satisfy the Minister on one count but not the other. As I explained earlier, my amendments are an attempt to achieve some form of consensus between the two paths that we have been following. One argues that the current system by which sentencing guidelines are provided is working very well. The noble and learned Lord, Lord Ackner, put his case, as ever, superbly. He is known, from his days at the Bar, as the master of the devastating aside, and his speeches are just as devastating as any of his asides. I respect his views; he quite rightly says that the model I have put forward is over-complicated. I appreciated that; it was my first attempt to provoke some form of debate and, by golly, it certainly provoked a debate.
The noble and learned Lord, Lord Ackner, maintains that the status quo should remain because it is working perfectly well. However, the noble Baroness, Lady Scotland, commented that she felt that public opinion was at an all-time low and that one needed to respond to that. I am trying to find some way of doing that without adopting the Government's rather extreme course.
I perfectly understand the views of my noble friend Lord Carlisle of Bucklow. He has remained true to his principles throughout his career, both as a Minister and in this Chamber. He has particular objections to mandatory sentences and the interference of the executive in the true province of the judiciary. I would never expect him to change his principles, he would never let me down on that.
I listened carefully to the noble Viscount, Lord Colville of Culross. I appreciate exactly what he says about the sheer number of offences, and the problem that for some of them there are no guidelines, nor are there likely to be. That is absolutely right—I agree with him. My difficulty with the Government's proposals is that they provide us with a model whose virtues the Minister has extolled today, while in the same Bill the Government do not put to the test the guidelines on murder as they have in later clauses. That undermines the Government's own professed confidence in the system with the Sentencing Guidelines Council.
The noble Viscount, Lord Colville of Culross, is right to direct me to look more closely before Report at the role of the Sentencing Advisory Panel and the annual report to Parliament. I shall do exactly that so that I may come back with something more flexible and realistic, which is what he asked for.
I shall consider all views. I shall have to return on Report with other amendments, but not with these—I can given that assurance to the Minister These amendments will not see the light of day again, although they have served their purpose. I repeat the commitment that I gave the Chamber, that because my amendments are probing, even when I added my name to amendments tabled by the noble and learned Lord, Lord Ackner, I would not support any Divisions today on those amendments. I genuinely intend to take on

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board everything that has been said and to return with something more workable on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 169 to 172B not moved.]
Clause 160 agreed to.
Clause 161 [Sentencing Guidelines Council: supplementary provisions]:
[Amendments Nos. 172C to 172K not moved.]
Clause 161 agreed to.
Clause 162 agreed to.
Clause 163 [Guidelines relating to sentencing and allocation]:
[Amendment No. 172L not moved.]
5.45 p.m.
Lord Carlile of Berriew moved Amendment No. 172LA:
Page 97, line 43, at end insert—
"( ) the overriding principle to reserve the use of custody for dangerous and sexual and violent offenders and seriously persistent repeat offenders."
The noble Lord said: We on these Benches welcome the proposal to establish the Sentencing Guidelines Council. We hope that it will hope to achieve a more consistent approach to sentencing, although we regard consistency in sentencing as something quite different from uniformity in sentencing.
I noted in the previous debate that there was not a single mention of regional variations in the country. This might represent an opportunity to express the hope that, although policy will become more consistent, there will remain the potential for sentences not to be uniform but to vary, not only on the basis of individual considerations but because of regional considerations.
I give the obvious example of mayhem on the seafront in some north Wales seaside resort. I choose north Wales only because I live in that part of the country and I should not wish to pick on anyone else. From time to time, I have also been involved in mayhem on the seafront at Rhyl, albeit in a professional role.
We are very concerned about public confidence in sentencing policy. We believe that public confidence could be seriously undermined if sentences cannot be carried out effectively because the prison system is overcrowded and is merely an uncivilised cupboard into which people are put and if the correctional services in the community are overburdened so that they cannot carry out the schemes that they have devised, which, when they work, are proving to be extremely effective.
We regard the "have regard" principles that are set out in the clause as crucial in determining the nature of the remit given to the Sentencing Guidelines Council and the focus of the work that it will do. Amendment No. 172LA is merely an attempt to enshrine in legislation something that we on these Benches regard
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as valuable and which was tucked away in the Explanatory Notes published on 21st May. I remind Members of the Committee of paragraph 791, which I am sure is in the forefront of your minds but merits a specific reminder. The note says:
"The provisions will be implemented as part of a strategy which will aim to ensure that custody is reserved for dangerous sexual and violent offenders and seriously persistent repeat offenders, and that the benefits of community supervision are made available for more offenders".
I accept that in this part of the Bill, if one takes all the provisions together, one can extract from the porridge—or the dough, I might say—the plum that is summarised in those words. However, we would be much more content if those words, with which we wholeheartedly agree as a statement of policy, were enshrined in the Bill. Hence Amendment No. 172LA.
We agree with the Prison Reform Trust that a key function of the Sentencing Guidelines Council is to oversee the thresholds that would govern the use of community and custodial sentences, and in particular to ensure that prison is used as a last resort. There have been some very unsuccessful attempts to legislate for the use of prison as a last resort. Some of us, both in practice and, in my case, as a part-time judge, had to cope with those in the early part of the 1990s. They were not terribly successful and produced some nonsensical results.
We believe that the Bill could be improved by not only Amendment No. 172LA but Amendment No. 172LB, which would ensure explicit consistency between the Sentencing Guidelines Council and the legislative purposes of this part of the Bill.
We also believe that the monitoring and reporting roles of the council should be strengthened by the addition of a subsection, additional to Clause 163(6), which we have sought to include in Amendment No. 172LD. That would include that proper attention was given to the financial implications of decisions. It would be consistent, too, with recommendation 10 of the Halliday report, which said:
"The proposed new guidelines should look for consistency of approach, rather than uniform outcomes, and recognise justifiable disparity, for example in cases where the offender has dependent young children".
We believe, too, that that approach should be included in the council's framework for guidance in the "have regard to" provisions, as I have called them.
Finally, I turn to Amendment No. 172LC. I recognise that at first sight the text may seem a little obscure, so perhaps I had better explain in a very few sentences the aim of the amendment. This amendment seeks to ensure that the council and the panel have a positive obligation to ensure that there is not inadvertent discriminatory practice in sentencing. Perhaps I can best deal with this by example from my own experience of the legal profession.
I am now old enough to look back over legal practice for more than 30 years. When I first started, in the last year of the assize courts and quarter sessions, I remember being shocked and appalled—as a very young barrister who had just emerged from university in the late 1960s—by going to court and hearing those

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older and wiser than myself representing people who were sentenced—I well recall, on more than one occasion—to 12 years’ imprisonment for homosexual acts which are now not crimes at all, and which in cities such as London and under anti-discrimination laws are rightly regarded as part of normal social behaviour. It was not always so.
If one analyses what the courts used to do in the savage sentencing of otherwise perfectly respectable people for what were regarded then as moral rather than criminally reprehensible acts, one sees a degree of discrimination. I am sure that the judges did not think that they were discriminating. If they had been told that they were discriminating they would have denied it stoutly and defended themselves with the considerable skill at their disposal. I use that example as an illustration of how society's expectations and behaviour change sometimes more rapidly than we expect. What is normal or at least acceptable in one decade can become unacceptable in another and vice versa.
As a contradistinction to my example of sexual offences at the very beginning of the 1970s, I would cite the rightly hardening attitudes, socially and in the courts, towards domestic violence and sexual offences such as rape. We believe that a positive obligation on the face of the legislation would ensure that the tendency towards unconscious discrimination or discriminatory practice was monitored regularly as part of the obligations of the statutory bodies rather than as currently happens. What happens currently is that sentencing practice, after a number of years, suddenly has to catch up with changes in social dynamics and expectations which have happened in the previous years. The result can be injustice to individuals.
A few moments ago we had some very interesting discussions, introduced in particular by the noble and learned Lord, Lord Ackner. During those arguments, perhaps everyone slightly lost sight of the fact that at the end of the sentencing process there is a man or woman standing in the dock facing a man or a woman sitting on the Bench who is dealing with the human situation that has brought them face to face in that very emotional and difficult environment. We believe that not by prescription but by setting out a little more in the "have regard to" provisions we would improve the performance of the Sentencing Guidelines Council and make sentencing policy more coherent. I beg to move.
The Deputy Chairman of Committees (Lord Tordoff):Amendment proposed—
Lord Renton: I must say—
The Deputy Chairman of Committees: Amendment proposed: page 97, line 43, at the end insert the words as printed on the Marshalled List.
Lord Renton: I was hoping to intervene before the noble Lord, Lord Carlile, sat down.
The Deputy Chairman of Committees: With respect to the noble Lord, Lord Renton, it is difficult to
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intervene when there is not a Motion before the Committee on which to intervene. That is why I pressed forward. There is now a Motion before the Committee.
Lord Renton: It is kind of the noble Lord to give that explanation. I would not in any sense blame him.
Amendment No. 172LA limits the use of custody and reserves it for,
"dangerous and sexual and violent offenders"—
yes, of course many of those deserve custody—
"and seriously persistent repeat offenders".
Well, that is an unusual expression.
There are serious cases of fraud and burglary. Vast sums are obtained by fraud. Huge numbers of valuable goods are obtained by burglary. Surely custody would have to be imposed for a first offender if the offence was very serious. Therefore, I fear that there is a very serious limitation on the use of Amendment No. 172LA. Indeed, it is such a serious limitation that we could not accept it.
Lord Carlisle of Bucklow: Perhaps I may say to my noble namesake that I do not think that he could have been sitting in his place yesterday when, as I understood it, the noble Lord, Lord Goodhart, publicly withdrew the words in this proposed subsection because of the very point that the noble Lord, Lord Renton, has made. I thought that the noble Lord implied that we would not see those words again. He accepted that they clearly did not cover many other serious forms of crime.
Viscount Bledisloe: I share the view of the previous two speakers that Amendment No. 172LA is far too restrictive. Is the noble Lord really suggesting that one cannot impose custody on the perpetrator of a major fraud or on a spy? I might remind him that Mr Blake received 42 years. Under this amendment, he would have to be given community service. Is that really what the noble Lord intends? Does he really intend that those who commit perjury or conspiracy to pervert the course of justice should be fined? Does he really intend that major drug smugglers shall walk free? Obviously the people mentioned here are very suitable candidates for custody, but surely it cannot be right to say that they are the only suitable candidates for custody.
Despite the noble Lord's exposition of Amendment No. 172LC, I do not quite understand it. In particular, I do not understand how sentencing policy can take into account the effect of investigation and proceeding. Investigation and proceeding have happened. Unless he is suggesting, as in the homosexual case, that the sentencer should say, "There is nothing wrong with this; I shall not punish you. Therefore it is a waste of time for the police to investigate or proceed against other homosexuals", I do not see how the impact of investigation and proceeding—which has happened by the time the sentencing stage is reached—can be expected

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to be taken into account in sentencing. No doubt the noble Lord can explain that. However, I would undoubtedly oppose Amendment No. 172LA.
Viscount Colville of Culross: On Amendment No. 172LC, may I suggest to the noble Lord, Lord Carlile, that perhaps what we want is not something as general as he has put forward. I understand what he is trying to achieve. However, what is really useful to the sentencer is a guideline decision, or the advice from the council in future, which says what, in the circumstances of that particular offence, are the mitigating factors and the aggravating factors. Then one can start to identify in the course of hearing the evidence the main issues that will eventually lead to a conviction and sentence. That is done at the moment and it is invaluable, but I do not think that it would necessarily be achieved by the generality of what is contained in Amendment No 172LC.
6 p.m.
Lord Carlile of Berriew: Having spent at least one holiday travelling around Italy looking at some of the wonderful paintings of St Sebastian, I know exactly how he felt after the three pronged attack which I received from three noble Lords, including my noble namesake, all of whom I greatly respect. I am extremely grateful for the assistance that I was given by the noble Viscount a few moments ago.
The answer to the three questions I was asked is straightforward: No. It was not, of course, intended to create a situation in which George Blake could not be sent to prison. It was not intended to create a situation in which burglars could not be sent to prison. However, it has to be said—I am sure that Members of the Committee who have spoken in the past few minutes share my experience that most people who commit serious burglary offences are persistent repeat offenders—that it is rare for a burglar to graduate to the large-scale antiques burglary of one of your Lordships' stately homes, for example, without going through the university of crime.
I say to the noble Viscount, Lord Bledisloe, that so far as perjury, and particularly perverting the course of justice, are concerned, far too many people are sent to prison unnecessarily. As judges always say—I have said it myself—although those offences go to the root of the criminal justice system one has to ask the fairly sensible question whether someone who tells a lie about who was driving a motor car at the time of a breathalyser offence but who otherwise has an exemplary private and public record really needs to be sent to prison, or whether he or she could not be condignly punished in the community, probably most of all through the shame of conviction, which constitutes a great punishment for such people. Therefore, I do not apologise for seeking to keep that category of people out of prison.
Amendment No. 172LA contains an overriding principle. It is not intended to be a command structure. Possibly the wording could be improved. However, I hope that the purpose behind Amendment No. 172LA
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is one that we all share. Prisons are overcrowded. They are constantly criticised by Her Majesty's entirely independent inspector of the Prison Service. In many cases they do very little to enable offenders to emerge from prison likely or able to lead law-abiding lives. We believe that the deficiencies in the present system should be tackled in some way in the legislation. I do not claim perfection for the amendment's wording and nor do those who drafted it. However, like my noble friends, I claim that the purpose of the amendments is useful and ought to be considered by the Government.
Baroness Scotland of Asthal: I thank the noble Lords, Lord Carlile of Berriew, Lord Carlisle of Bucklow and Lord Renton, for saving me the burden of dealing with many of these amendments. I say to the noble Lord, Lord Carlile of Berriew, that I understand why he wants these issues on the face of the Bill.
These amendments seek to add to the matters to which the council must have regard when framing or revising sentencing or allocation guidelines. Although each of the issues raised is both important and one that the council will expect to consider, it is not necessary to include that degree of detail on the face of the statute.
We want the council to do all the things that the noble Lord has just outlined. It will have the skill and the knowledge to address those issues. I am sure that it will take into account precisely the role that the noble Lord mentioned. The council will be able to determine the proper use of custody in relation to offences and what kind of offending history needs to be borne in mind. The noble Viscount, Lord Colville, said that what most assists sentencers is to know the aggravating and mitigating factors and what they have to take into account. That is precisely what we intend.
In respect of the sentencing guidelines, Amendment No. 172LA emphasises the importance of proper use of custody. The council will take into account the cost of different sentences, their effectiveness and the need to promote public confidence and it is better to leave the obligation at this level of detail and let the council discharge that duty.
Amendment No. 172LB seeks to require the council to have regard to other sentencing principles in the Bill. The guidelines will be for those passing sentence who must abide by the statutory principles which we mentioned when discussing Clause 135. Therefore, any guidelines must follow those principles and so there is no need for this provision.
Amendment No. 172LC emphasises the importance of the council having regard to potentially discriminatory actions—again the need for the council to have regard to confidence in the system will include this and it is not necessary to prescribe this level of detail.
Amendment No. 172LD refers to allocation guidelines which will assist magistrates’ courts in determining what either way cases to send to the Crown Court for trial. The council will take into account all relevant issues. As well as the consultation undertaken by the Sentencing Advisory Panel, Parliament will contribute to the council's deliberations and there is no need to specify a particular factor such as this. Even if we

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thought that there might be such a need, the noble Lord's namesake, the noble Lord, Lord Carlisle of Bucklow, uttered strong words on verbosity on the previous occasion that we discussed the Bill. I believe that these amendments might well fall foul of his strictures. I for one took them very much to heart.
Lord Carlile of Berriew: I am grateful for the Minister's response. I certainly exclude her from the St Sebastian category.
We are reassured to an extent by the Minister's expectation of what the council will take into account. Of course, the proof of the pudding will be in the eating. We have reasonable confidence in the membership of the council to take those matters into account, certainly as it will be constituted initially. We are disappointed that the have regard provisions are not more extensive. I say frankly that we would have preferred them to be more extensive. We believe that it would have done no harm to the integrity or content of the Bill, but in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 172LB to 172N not moved.]
[Amendment No. 172P had been withdrawn from the Marshalled List.]
Clause 163 agreed to.
Clause 164 agreed to.
Clause 165 [Duty of court to have regard to sentencing guidelines]:
[Amendments Nos. 173 to 173B not moved.]
Clause 165 agreed to. Clause 166 agreed to.
Clause 167 [Duty to give reasons for, and explain effect of, sentence]:
Baroness Anelay of St Johns moved Amendment No. 173C:
Page 99, line 21, leave out "to the offender" and insert "in open court"
The noble Baroness said: In moving Amendment No. 173C, I wish to speak also to Amendments Nos. 173D, 173E and 173F, all of which stand in my name.
Clause 167 would place a statutory duty on sentencers to explain the reasons for deciding to pass a particular sentence and also the practical effect of the sentence on the offender. The amendments relate to the second of these duties, which would effectively replace the similar duty contained in the consolidated criminal practice direction issued by the noble and learned Lord the Lord Chief Justice and first introduced by the noble and learned Lord's predecessor in 1998.
Amendment No. 173C would require the explanation of the practical effect of the sentence to be made in open court. I have tabled it to highlight what appears to be a defect in the present system and ensure that it is not replicated under the new arrangements in the Bill. As I understand the position at present, most sentencers make a full explanation of the effect in open court, as required by the practice direction. However,
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I am told that some simply say words to the effect that defence counsel will explain the sentence to the offender in the cells after he or she has been taken down.
The latter approach clearly does not reflect the intention behind the duty, which is that the offender, the victim if present in court, and the wider public should have the greatest possible understanding of the practical effect of a sentence that has been passed. In a nutshell, they all want to know, if a sentence of imprisonment has been passed, how long someone will actually serve. If those matters are not mentioned in open court but only explained to the offender in the cells by counsel, the victim and the public may be under a serious misapprehension as to release date, parole, the nature of licence conditions and so forth. Explanation of those should help public confidence in the sentencing system.
The amendment would prevent such occurrences under the new statutory arrangements by requiring the explanation to be made in open court. I have no intention of pressing it or the other amendments; they simply probe the Government's intention on how explanation of sentences shall be made. In particular, an offender sentenced after the Bill can expect that he may well be at some loss as to know the real effect of the sentence on him. We are trying to help that realisation.
Amendment No. 173D relates to the explanation of early release arrangements. Amendment No. 173E seeks to probe how the new statutory arrangements will operate. At present, the model wording that suggests how sentencers should explain the practical effect of a sentence is provided in the practice direction, but Clause 167 gives no indication of whether sentencers will be expected to use words entirely of their own choosing—I very much doubt it— under the new statutory arrangements, or whether the consistency provided for by the existing model will continue. I hope that the Minister will say that the current practice will be continued on that. I beg to move.
Lord Carlisle of Bucklow: In view of the Minister's comments about my criticisms of verbosity in the Bill, she will appreciate that I do not feel that I can totally support my noble friend in adding the words in Amendment No. 173D to the Bill, as that would extend it by three lines. However, I strongly support my noble friend on the principle, purpose and importance of the amendments in reminding the judiciary what is meant by,
"the effect of the sentence".
I do so for a reason. The noble Lord, Lord Dholakia, will remember a situation that the Parole Review Committee faced. One reason why we were set up was a lack of confidence in the parole system. An indication of that was that people seemed to come out of prison at dates that appeared to have no relationship to the sentences that had been passed and probably published in the local paper, so people said, "He got 18 months and was walking past my doorstep six months later".

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As I am sure the Minister knows, in our recommendations we unanimously put forward the scheme then implemented by the government of the day whereby, for sentences of up to four years, half should be served in custody and half under supervision in the community, subject to the supervision of those sentences under 12 months. We said very firmly that we believed it important that the judge at the trial, in sentencing a person to prison, set out in clear terms what the sentence meant by saying, for example, "I am giving you a sentence of three years’ imprisonment. That means that you will spend 18 months in prison. If you behave yourself, you will come out at that stage. For the next nine months you will be under supervision, and for the whole of the further 18 months you will be at risk of recall if you commit a further offence".
The sadly missed, late Lord Chief Justice, Lord Taylor, in a case that I am sure that the Minister has in her brief but of which I cannot now remember the name, specifically gave guidance to judges that they should, in sentencing someone to imprisonment, indicate how much of that period should be in prison and how much out of it. It is a very important matter. As I said, it is not necessary to write it into the Bill, but to emphasise it in Committee, as my noble friend Lady Anelay has, is of great importance.
6.15 p.m.
Lord Renton: Before commenting on each amendment tabled by my noble friend Lady Anelay, I want to make the general point that when the clause refers to,
"the effect of the sentence",
I should have thought that that envisaged the impossible. How can the courts forecast the effects of the sentence on the offender? He may be a persistent offender who will go on committing crimes, or a first offender in which case the sentence may be all right. The court cannot publicly explain, either to the offender or in open court, the effect of the sentence. It is unpredictable. Having said that, I agree very much with the first amendment. The reasons must be given not only to the offender, by passing a note to him or something like that, but in open court.
I have a slight doubt about Amendment No. 173D. I hope that my noble friend Lady Anelay, whose efforts we greatly admire, will forgive me for mentioning it. I should have thought that, when sentencing offenders, the judge must not be too involved in the future. To draw the attention of the offender to a power or duty of the Secretary of State to release him might unjustifiably raise his hopes of an earlier release. We must avoid saying that.
Amendments Nos. 173E and 173F are very valuable, and I hope that the Government will seriously consider accepting them as well as Amendment No. 173C.
Baroness Scotland of Asthal: I regret that I will have to disappoint the noble Lord, Lord Renton, because
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we cannot accept the amendments. That is for the good reason that we believe that their purport is already met in the framework that we have provided in Clause 167. I very much agree with what was said by the noble Lord, Lord Carlisle of Bucklow, about the importance of the court indicating to the offender the precise effect and what it means—the consequence of how the sentence will operate. That is critical.
We believe that "effect of the sentence" in Clause 167 is crafted in a way to elicit that result. The noble Lord, Lord Carlisle, and the noble Baroness, Lady Anelay, both prayed in aid the benefit of the practice directions issued to assist judges, when they come to sentencing, to express themselves with accuracy and clarity. We would certainly expect those practices to continue. The Lord Chief Justice is already able to issue practice directions with suggested formulations for the giving of reasons and we do not need an addition such as that suggested by the noble Baroness in Amendment No. 173E to allow him to do so. I happily give her the reassurance that she seeks in relation to those matters.
Amendments Nos. 173C and 173F would remove the discretion currently contained within the clause either to prescribe cases where the duty does not apply or to allow reasons to be given in the absence of the offender or to be provided in a written form. We have specifically provided for that in order to cater for the situation in which persons other than the court can provide the necessary explanation; for example, the offender's own legal representative or an officer of the court, with the possibility of the explanation being given orally or in writing where the offender is not at court.
There may also be cases in which the court does not consider it to be appropriate to give reasons; for example, if an offender has pleaded guilty by post to a very minor traffic offence and is not present in court. In most cases, it will be appropriate to give reasons, but a full explanation of the sentence may nevertheless be thought to be inappropriate; for example, if the offender is deeply traumatised by the sentence. The clause provides the Secretary of State with an order-making power to prescribe such cases.
However, the norm will be that the court should state reasons in open court. In most cases, the offender will be present in order to have the effect of the sentence explained to him. We agree with the comments made about the importance of that taking place and it being done in an appropriate and proper way.
I hope that with those reassurances, the noble Baroness will be content—particularly if she still sits as a magistrate. She will not in open court have to give reasons to defendants who have transgressed the traffic offences but are not present to hear her wonderful words.
Baroness Anelay of St Johns: I shall disappoint the Minister only in relation to her last remark. Sadly, I had to resign as a magistrate when I joined the Front Bench in this House because I was not able to give a proper commitment to sit long enough. Nevertheless,

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I always declare an interest as a former magistrate and have at heart the concerns of magistrates. It is right to identify that.
I am grateful to the noble Baroness for her clarification. I accept her assurances and indicate that I shall not return to these matters on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 173D to 173F not moved.]
Clause 167 agreed to.
Clauses 168 and 169 agreed to.
Clause 170 [Community orders]:
Lord Carlile of Berriew moved Amendment No. 173FA:
Page 102, line 8, at end insert—
"( ) The court may make repeated use of a community order; and its use for previous offences does not, in itself, preclude it from consideration for the current offence."
The noble Lord said: In moving Amendment No. 173 FA I shall speak also to Amendment No. 173FB standing in the name of my noble friends Lady Linklater and Lord Dholakia. I begin by paying tribute to my noble friend Lady Linklater, who is not able to be here today because she is fulfilling a commitment to sit as a magistrate north of the Border. She is the chair of the Esmée Fairbairn Trust, which has done an enormous amount of work in recent years in the field of youth justice. Its reports are well worth reading as important guidance for policy.
Clause 170 sets out what I am sure will become known as the "community menu". Judges and magistrates, when they are imposing a community order of which there is only one, will have the duty to choose from the menu any one or more of 12 requirements. When I was looking at the requirements prior to the debate, I was bound to reflect that some of us are fulfilling some of them: an activity requirement; a programme requirement; a residence requirement; I hope a curfew requirement, as I shall try to be brief; and in some cases—I confess to this during the dinner hour—an alcohol treatment requirement, although not as intended in the clause.
The purpose of these amendments can be put simply. It is to give clarity to an issue that has caused some concern to myself, to my noble friends and to some of the sentencing policy bodies. There is concern, in particular when one considers Schedule 7 alongside Clause 170, that courts may feel that repeated community orders may be the subject of criticism— indeed, that they may not be appropriate. Many people in the Chamber have experience from various viewpoints, in particular of dealing with youngish offenders, especially those aged between 18 and 30. Many of those offenders catapult themselves downwards into increasing crime and then begin to emerge from it. Few of them emerge quickly.
It is our concern that community orders should remain available—in appropriate cases, of course— when the court feels that there is some hope of improvement in the future. Those of us who used to scrub around the Crown Courts dealing with many
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pleas of guilty in minor burglary and assault cases always used to try to get them heard on Friday afternoons. The judges tended to want to get away then and were more inclined to give younger old-lags a chance. But a sound principle was involved. Many of them, given that chance and somewhat surprised by it—their counsel never explained the true reason— took the opportunity for the first time to fulfil the requirements of what might be their third or fourth probation or community service order. In many of those cases, once prosecution appeals came into being the Crown Prosecution Service had the good sense not to appeal against them. We are simply concerned that courts should be able to make repeated community orders in appropriate cases.
In Amendment No. 173FB, we seek to ensure that community orders will be appropriate even when fairly serious offences have been committed if the individualisation of the sentence justifies the conclusion that a community sentence is appropriate. It is the reality of what happens every day of the week in the courts—some of the time, at least, in some cases—and we would not want that to disappear from the system. I beg to move.
Baroness Anelay of St Johns: It may be convenient if I speak to my amendments in this group. They approach a similar issue from a different angle. They are based in Clause 171, which gives the Secretary of State the power to make an order that allows or requires the court to review the progress of an offender who is under the community order about which the noble Lord, Lord Carlile, has spoken.
The Secretary of State can also allow a court to attach or remove a review provision from the community order and regulate the timing of the reviews. My amendments ask the Government several questions. Amendment No. 173G asks: why does the clause not give the court the ability to amend the order at the time of the review? If it is anticipated that this will happen, why does it not say so on the face of the Bill without trying to add extra words? I thank my noble friend Lord Carlisle of Bucklow for that.
The reference in the clause to the power of the court to amend in subsection (l)(b) appears only to be the power to make an amendment removing the provision to review itself. Is that the case?
Amendment No. 173H asks: what is the Government's view of the frequency in which these reviews will take place?
Amendment No. 173J deletes subsection (3). This gives the Secretary of State wide powers in secondary legislation to make rules about the timing and conduct of reviews and about the powers the court will have with regard to review itself. Although my amendment knocks out that subsection, that is not because I am hostile to it. The questions that I wish to ask are: what work has been done since the Bill started its progress through Parliament in another place last December to determine what the rules will look like; who has been consulted during that time; and what are the results of the consultation? I beg to move.
6.30 p.m.
Lord Renton: I welcome what my noble friend Lady Anelay said and I particularly wish to draw attention to Amendment No. 173J, which seeks to leave out subsection (3). That subsection states:
"An order under this section may repeal or amend any provision of this Part"—
that is, this part of the Bill. I believe that having fundamental and important matters amended simply by order on a Bill of this kind is wrong in principle, and I am very glad that my noble friend tabled that amendment.
The Lord Bishop of Worcester: I want to raise what seem to me to be rather central issues relating to sentencing in Amendments Nos. 173FA and 173FB. One argument for the use of custody that personally I have found least persuasive is that it should be used as a remedy for the persistent offender—that is, as a last resort. It suggests, "We cannot think what else to do with this person and so we will lock him up". If, in fact, custody is not the appropriate punishment—that is, if the offence is not serious enough to warrant it or if the need for public protection is not great enough—then I consider that to be one of the least plausible justifications.
Those two amendments put before us a notion that I, and all those concerned with prison reform, consider to be extremely important. We need punishments that make custody the last resort, and we need to ensure that those punishments are used. I welcome the fact that the amendments provide the possibility that, first, if a community sentence is awarded repeatedly, that does not necessarily mean that it is a failure and, secondly, the community order needs to be explicable as proportionate precisely because we are up against a culture in which certain organs of the press, in particular, are apt to treat community orders as far too light and as not real punishment—that is, as a soft option. Therefore, I believe it is very important to require a proper explanation to be given that such a punishment is appropriate.
It seems to me that the two amendments, taken together, offer, on the one hand, a creative cutting-through of the tendency to say, "Oh gosh, we can't think what else to do; we'll lock this person up", and, on the other, an opportunity to say in a public way, "This is a serious punishment, it's a heavy punishment and an appropriate one".
Baroness Scotland of Asthal: We absolutely understand the thrust of the right reverend Prelate's comments in relation to dealing with the root cause of the offending behaviour and giving offenders an opportunity to change that behaviour by properly targeted intervention. I believe that is very much the thrust of what the noble Lord, Lord Carlile, said concerning the utility of using community service punishment as a useful tool on more than one occasion. Just because a community service order fails once, that does not necessarily mean that, differently fashioned, it may not succeed on another occasion, particularly when dealing with a young developing person who may be
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more amenable to change. We understand all that. Nothing in the way that the Bill is currently framed would prevent a sentencer, if so minded, coming to that conclusion if the circumstances of the case, the nature of the offending and the offender justified it.
However, I believe that we must clearly bear in mind that we are making community sentences very flexible, as the noble Lord has already indicated. By setting the net very wide in Clause 170, we are trying to give sentencers the kind of breadth that they will need to address the offending behaviour on each occasion that the offender comes before them.
Noble Lords will know that sometimes in the past community sentences were not as sharply focused as perhaps the need of the offence and the offending behaviour exhibited by the defendant demanded. By setting out Clause 170 as we do now, we hope to give sentencers the opportunity to direct how the offender should make proper reparation and how to reduce— we return to some of the principles in Clause 135—the level of offending that that seeks to elucidate. Therefore, we say that that is possible.
However, I believe it is right to say that, having given sentencers that breadth and the ability to utilise their discretion on each and every occasion, if they then do so, if offenders continue to re-offend and if the interventions that have been made in the past have not worked, then there will have to be an assessment of whether the offender now needs to graduate into a different type of sentence. That is why we have made it clear in the provisions that a punishment of imprisonment must be considered only after the sentencer has thought about fines and community penalties. Yesterday we spoke about how we have considered reinforcing that.
Therefore, we do not believe that Amendment No. 173FA is necessary. While the new generic community sentence provides the courts with the flexibility to increase the severity of the community sentence by adding tougher requirements, we believe that progression up the sentencing scale may be inevitable if offenders continue to re-offend.
As the right reverend Prelate said, Amendment No. 173FA could result in persistent offenders receiving sentences that did not take into account their failure to respond to previous sentences. For that reason, we consider the amendment to be unjustifiable. However, we do not disagree with the basic thrust of the right reverend Prelate's comments in that the principle of proportionality needs to be borne in mind so that the sentence passed reflects the seriousness of the offence.
We also do not consider Amendment No. 173FB to be necessary. That is because provisions in Chapter 1 of Part 12 already ensure that, when attaching requirements to the community sentence, the courts must consider them to be suitable for the offender and commensurate with the seriousness of the offence. As we have just debated, under Clause 167 the courts are also required to explain their reasons for passing the sentence. Therefore, that gives an opportunity for the courts to say why, if they are to impose another community sentence, they have taken that course as

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opposed to any other. We suggest that Amendment No. 173FB does not add any substance to the provisions as currently drafted and therefore we would not be minded to accept them.
I turn now to the amendments in the name of the noble Baroness, Lady Anelay—Amendments Nos. 173G, 173H and 173J—which seek to alter an order-making power. That power is to provide for court reviews of community sentences. In the Bill, suspended sentences can be subject to court review, as can the drug rehabilitation element of community sentences following on from DTTOs. An order-making power is provided to extend court review to community sentences as a whole. Court review is a popular option among sentencers, who welcome the opportunity to be involved in the results of their sentencing decisions. We think that it will help to improve the effectiveness of those sentences.
Amendment No. 173G adds to the power of the court during such reviews by adding the power to amend the order as well as to review it. While the motivation for such an amendment is understandable, amendment of the order could amount to a resentencing exercise, which would require a full court hearing, including, for example, the presence of legal counsel for the defence. Court reviews are intended to monitor and to motivate the offender. We do not want to make them over-formal and we do not want to introduce the factor of resentencing that person again and perhaps in a different way.
Amendment No. 173H seeks to make court reviews of community orders regular rather than periodic. "Periodically" is a more flexible term than "regularly". It allows for the court to review an offender more frequently at the beginning of his sentence. An offender's degree of compliance might need to be monitored closely but less frequently as the sentence wears on and the offender proves himself. If one were to monitor regularly, one might say that the offender must be seen every month or every two months, irrespective of how he gets on. If one used the word "periodically", one could say, "Because I am very concerned about compliance I shall see you on a weekly basis for the first six weeks and if you do well I shall see you after another six weeks or two months, and if you do even better I might not see you for a significant period thereafter". That cannot be said to be regular but periodic, although it will be what the defendant needs. That is the difference that we see between "regularly" and "periodically".
The noble Baroness will know that many will say to the sentencer that such a situation should not be allowed because it would not be regular. We want to be absolutely clear that the sentencer can do that which he or she believes will meet the needs of offenders to ensure that the review has meaning and that the offenders comply. We want to help offenders to comply because if they comply we shall have a better chance of rehabilitating them. If we can rehabilitate them successfully they will be less likely to reoffend and so we shall reduce the level of crime. That is the thrust of the matter.
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The Secretary of State's order-making power also allows him to repeal or to amend any provision of Part 12 of the Bill. Amendment No. 173J would omit that power. We believe that it is necessary to ensure that all the sections of the Bill that concern sentencing can be amended such that they accord with a new provision to review community sentences. That is the limit of the intention of such a power. I hope that with that explanation the noble Baroness will feel content. I know the amendment is a probing one and I hope that I have outlined and explained the issues that concerned her.
Lord Renton: I wonder whether my recollection is right. I have always understood that where Parliament has laid down sentences, power to change what Parliament has laid down has been avoided. We should not have subordinate legislation to alter the importance of the fixing of sentences.
Lord Mayhew of Twysden: Can the Minister remind the Committee what the Select Committee on Delegated Powers and Regulatory Reform said about this? It would have expressed an opinion and I think it made the point that my noble friend has just made, although I may be wrong about that. However, it is rather important.
6.45 p.m.
Baroness Scotland of Asthal: I do not believe that this was an area of criticism. I shall check on that. I say that because all the areas of criticism have been brought to my attention and there is not one in relation to this matter. I can certainly undertake to clarify that point for the noble and learned Lord. Yes, I am right. The Select Committee accepted it and did not consider that there was anything wrong with it.
The reason is that we are not reviewing the sentence; we are assisting in the enforcement of that sentence. One is not changing the sentence. If I were to accept the amendment tabled by the noble Baroness, we may be at risk of resentencing, which would not be appropriate. However, we do not seek to do that. We are seeking to allow the court to monitor the compliance with the sentence that it makes. Noble Lords will know that if compliance is an issue and if the court does not feel that proper control can be maintained to ensure that the offender complies, the court may be less minded to give a community sentence. It is seen by sentencers as something that they would want to have so as to keep a proper handle on what happens.
Lord Mayhew of Twysden: Before the noble Lord, Lord Carlile of Berriew, replies perhaps I can make two points that I should have made earlier. First, it is fine and large when we read what has been described as the community order menu—all these very important and desirable variants that are available—but it will be critically important that enough money is available for the various services that have to deliver them. I do not have first-hand knowledge of this but one has read of great difficulties within the probation service and it would be reassuring to the Committee to know—the

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noble Lord, Lord Carlile, may like to pose a question about this—whether there is specific provision for the financial consequences of this part of the Bill. Otherwise, it will simply create many opportunities that, like so many in this area, will be lost for lack of resources.
My second point is that I welcome Amendment No. 173FA which states:
"The court may make repeated use of a community order",
because an unfortunate fact is that community orders do not have a much better non-recidivism record than custodial sentences. That leads people to think that it is a soft option and one that is a sign of weakness if resorted to repeatedly. One has to acknowledge that in nearly as many cases the offender reoffends, but it seems to me that it is better to risk that than to send someone to a prison again where the same lack of resources and inability to deliver on its mission statement will be found.
This week I have already alluded to Sir David Ramsbotham's recently published book. It makes lamentable and miserable reading to see how frustrated decent and well-meaning prison officers are because of a lack of resources. I agree with what has been said by the right reverend Prelate, that non-custodial sentences or a community order should be regarded as punishment and that the punishment character of them should be emphasised. Therefore I believe that it is well worth including a statement of fact or principle in the Bill, such as Amendment No. 173FA provides.
Lord Carlile of Berriew: We have had an interesting debate on the issues raised by our amendments and by the amendments tabled by the noble Baroness, Lady Anelay. I am grateful to the Minister for her explanation of Clause 170. This is another of those issues upon which there is a shared sense of purpose among all parties in the Committee and all Members of the Committee. The question is how explicit the legislation is about how that purpose is achieved. We would have wished for greater clarity in the text of the Bill.
The noble and learned Lord, Lord Mayhew, raised an extremely important point. My understanding of the situation is that there is no ring-fenced money for the provision of community correctional services. Community sentences represent good value for money, even if one is pessimistic and takes the view that people are no less likely to re-offend after a community sentence than after a prison sentence. A community sentence demonstrably represents better value for money and better value in social terms because it does not dislocate the family of the offender as much as a prison sentence.
We have become accustomed very quickly in this Chamber to the wise contributions of the right reverend Prelate the Bishop of Worcester. I suggest that his remarks about proportionality should be required reading for judges as well as for those engaged in policy making. That was a very important point in relation to wider issues as well as to the narrow issue we are debating.
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Having regard to what has been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 173FB not moved.]
Clause 170 agreed to.
Clause 171 [Power to provide for court review of community orders]:
[Amendments Nos. I73G to 173J not moved.]
Clause 171 agreed to.
Clause 172 agreed to.
Schedule 7 [Breach, revocation or amendment of community order]:
Lord Carlile of Berriew moved Amendment No. 173JA:
Page 224, line 8, leave out paragraph (c).
The noble Lord said: In moving Amendment No. 173JA, I shall speak to the amendments standing in the name of my noble friends. The amendments raise an issue of principle with which I can deal briefly. There are many minor offences which are not punishable by imprisonment, but some people who choose not to obey orders placed upon them by the court or to pay the fines ordered by the court, nevertheless end up in prison.
As a matter of principle, I would argue that we should use every means possible to avoid having people who have committed an offence which is not punishable with imprisonment, end up in prison in effect because the starting point of the whole condition was that they committed an offence not punishable with imprisonment. Professor Andrew Ashworth, who is one of the foremost criminologists in this country and whose opinion is very widely respected, not least through his lectures to the Judicial Studies Board and his many articles in the Criminal Law Review, has described something he calls "condition creep". It is a process whereby someone commits a minor offence but, perhaps because of an unjustifiable attitude, ends up in prison because he does not obey the court's order.
We on these Benches ask the question founded on principle: is it really right that those people should end up in prison at all? Surely there are other ways to deal with them; for example, by attachment of earnings orders or otherwise removing money from them, which would avoid their cluttering up the prisons.
The noble and learned Lord, Lord Mayhew, referred a few moments ago to Sir David Ramsbotham's remarkable, though not unexpected, published views about his experience as Chief Inspector of Prisons. He was not appointed by this Government. Sir David came to the prisons from a military background and I suspect that it was expected that he would not rock the Government's boat over the prison system. But he did. He was right to do so. I think we all recognise that. Part of the evidence for the Ramsbotham thesis—if I can call it that—is that there are far too many people in prisons, taking up space and costing taxpayers ridiculous sums of money, who really should not be there.
If one were to pick one category of people to shed from our prisons, surely it would be people who have committed offences which never were punishable by imprisonment. I beg to move.
The Deputy Chairman of Committees (Lord Carter): If Amendment No. 173JA is agreed to, I cannot call Amendment No. 173K for reasons of pre-emption.
Baroness Anelay of St Johns: I shall speak to my Amendments Nos. 173K to N, which are grouped with those of the noble Lord, Lord Carlile of Berriew. We go from the general principle, set out so clearly by the noble Lord, Lord Carlile, to some specific questions.
As set out by the noble Lord, Lord Carlile of Berriew, Part 2 of Schedule 7 to the Bill lays out the procedure for dealing with offenders who have breached the requirements of their community sentence. My amendments relate to the criteria in the schedule, which will allow the court to impose a custodial sentence for a breach of a community order in circumstances where that custodial sentence could not have been imposed for the original offence, either because the offence was not one punishable with imprisonment or because the custody threshold set out in Clause 144 was not passed.
In both cases the criterion under which the courts are to be empowered to impose a custodial sentence for breach of a community order is that the offender has "wilfully and persistently" failed to comply with the requirements of the community order. My amendments refer specifically to the word "persistently" in this context. There is a little déjà vu here because again I ask the Minister: what do the Government mean by "persistently"? On Monday the Minister responded that three was the magic figure and she explained why.
I tabled these amendments and kept them on the Order Paper for today with the decision of the Court of Appeal in the case of S (A) very much in mind. The case is reported in Volume 1 of the Criminal Appeal Reports (Sentencing) for 2001, at page 62. In that case the Court of Appeal held that a juvenile offender with no previous convictions could be a "persistent offender" for the purposes of Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000. That was on the basis that the offences of which he had been convicted were serious and were committed over a period of two days. So it is clear that the courts are indeed prepared to take a very wide approach to the definition of the word "persistent". My question is: do the Government intend that a similarly wide approach should be taken under the Bill in the context of sentencing offenders to custody for "persistent" breaches of their community orders? Is that the course they are taking, or are they sticking by their Monday definition?
Baroness Scotland of Asthal: In relation to the last point of the noble Baroness, of course the Monday definition was very much targeted at the situations with which we were then dealing; namely, how one moves from the description of whether we have one or
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two, or three or more. In that context, it is probably better that we leave that description to explain that clause, rather than to broaden it out more widely.
I turn to the amendments of the noble Baroness. In many senses this is déjà vu because I have the noble Baroness on one side invoking the need to toughen the implementation and enforcement of orders and on the other I have the Liberal Democrat Benches in the form of the noble Lord, Lord Carlile, saying, "No, we have to be far more mild and soft"—not soft—
Lord Carlile of Berriew: Pragmatic.
Baroness Scotland of Asthal: The noble Lord suggests "pragmatic". I know that others will say soft. Once again we intend to be right in the middle—firm but kind.
Perhaps I may deal with the points of the noble Baroness. As drafted, the court can make the requirements more onerous or indeed revoke the order and re-sentence the offender. If the breach is wilful and persistent, it can also imprison an offender whether or not the original offence was imprisonable.
The amendment would remove the requirement for the breach to be persistent as well as wilful, so it could mean that for one breach—the first breach—there would be an immediate custodial sentence. That is going too far. Once again, we rely on the discretion of the court. The court will need to consider the pattern of offending behaviour.
The example which the noble Baroness gave of the 2001 case would doubtless result from the individual having committed a number of offences. She will know that sometimes, regrettably, individuals come before the court not only with a number of specific charges but a large number of offences taken into consideration. Regrettably, they can stretch not over a short period of days but over a period of years if, once caught, one can identify by DNA or other forensic evidence that the offender has participated in a series of offences over such a period. An offender facing one charge who comes before the court for the first time with no other charges falls into a different category from a person who comes before the court for the first time but, regrettably, with 50 TICs and 17 charges.
So the balance is about right. The powers in the Bill for breach of community sentences are already tougher than those currently available. Currently, the court can take no action upon a breach; it can fine the offender; it can impose a community punishment order; in certain cases, it can impose an attendance centre order; or it can revoke the order and re-sentence the offender. Re-sentencing can include custody if the breach was wilful and persistent, whether or not the original offence was imprisonable.
The Bill requires the court to punish all breaches of a community sentence by making the order more onerous or by revoking the order and re-sentencing. In making the order more onerous, it will be perfectly open to the court to add further conditions. By removing the element of discretion in punishing a breach and the option of imposing a fine, enforcement should be more meaningful and onerous in all cases.

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We do not intend to change the current position for dealing with wilful and persistent breaches. We believe that the power to impose a custodial penalty for breach regardless of whether or not the original offence attracted imprisonment is rightly reserved for the most serious cases where the breach is both wilful and persistent. I shall therefore resist these amendments.
I hope that it is of some comfort to know that, similarly, I shall resist the amendments spoken to by the noble Lord, Lord Carlile, for the following reasons. Amendments Nos. 173JA, 173LB, 173MA and 173KA would reduce the court's power to respond to a breach of a community order. Amendments Nos. 173JA and 173LB would remove the court's ability to impose a sentence of imprisonment of 51 weeks or less in cases where there was a wilful or persistent breach of a community order.
The provisions to which these amendments relate are re-enactments of provisions in the Powers of Criminal Courts (Sentencing) Act 2000. As I said, we believe that the power to impose a custodial penalty for breach regardless of whether or not the original offence attracted imprisonment is rightly reserved for the most serious cases where the breach is both wilful and persistent. Removing the ability of the court to impose a short sentence of imprisonment in those circumstances would undermine the credibility of the generic community sentence as a viable alternative to a short custodial sentence and reduce the confidence of sentencers and the public in that sentence.
The noble Lord is right when he says that we must encourage the sensible use of community sentences. We certainly want them to be better targeted and consider them to be powerful tools in the sentencers’ armoury. We want them to make use of them, but in order to ensure that, we want them to have teeth; we want sentencers to have confidence in using them, knowing that if the trust that they place in the offender is abused in an unacceptable and inexcusable way, the court can do something about it.
Amendments Nos. 173MA and 173KA would allow the courts to take no action in response to a minor breach of a community order. That would mean that an offender could fail to adhere to their requirements but would face no significant punishment. These amendments would signal to offenders that a minor breach was acceptable. We do not want to create that impression; we believe that every breach should be acted on if the generic community sentence is to gain the confidence of sentencers and the public. For those reasons, although we understand that thrust of what the noble Lord said, we cannot accept the amendments.
7 p.m.
Lord Carlile of Berriew: I must confess to being disappointed at what the Minister said. Nevertheless, I do not want to press the matter to a vote, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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[Amendments Nos. 173K to 173L not moved.]
Baroness Scotland of Asthal: Schedule 8 provides for the transfer of community orders to Scotland and Northern Ireland. When an order transfers, certain provisions that relate only to England and Wales must be translated so as to apply in Scotland and Northern Ireland. One of these is a reference to the Mental Health (Scotland) Act 1984, which is used in defining what a hospital means for the purposes of mental health treatment. That Act is being superseded by a new Act, the Mental Health (Care and Treatment) Scotland Act 2003, and thus Amendment No. 173AA updates the reference.
Amendments Nos. 173ZAB, and 174 merely correct drafting errors. Amendments Nos. 173ZA, 173AAA and 174A—
The Deputy Chairman of Committees: We are on Amendment No. 173LA; the Minister is speaking to Amendment No. 173Z.
Baroness Scotland of Asthal: I pray in aid having been in the House until half past midnight yesterday and back on duty by about eight o'clock this morning. I apologise. I am grateful for the sympathy of the Committee; I think that many Members of the Committee were here with me. I must first deal with Schedule 7.
Schedule 7 deals with the breach, revocation and amendment of community orders. Amendments Nos. 173LA, 173R, 173T and 173W limit the power of the Crown Court in dealing with the breach, revocation and amendment of a community sentence made on appeal, such that its powers do not exceed those available to the magistrates' court that originally made the order. That is consistent with existing legislation on appeals under Section 48 of the Supreme Court Act 1981.
Amendments Nos. 173Pand 173Q correct mistaken references to "relevant orders". As this schedule deals only with community orders, those references must be corrected.
Amendments Nos. 173Q and 173X tidy the drafting. Paragraph 24 should make reference to all the clauses under which an application should not be made to the court while an appeal against the order is pending. A reference to paragraph 13 belongs here, rather than in a separate sub-paragraph to paragraph 13. Amendment No. 173S ensures that the court that deals with applications to amend the residence of an offender on a community order that has a drug treatment requirement with review attached is the court that does the reviews.
Amendments Nos. 173U and 173V change slightly the definition of the court to which an application must be made to extend an unpaid work requirement beyond 12 months. It has changed from,
"a magistrates' court acting for the petty sessions area concerned"
to,
"the appropriate court".

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That was done so that it can apply to community orders transferred to Scotland and Northern Ireland, in which cases the appropriate court is the local Scottish or Northern Irish court. The meaning is unchanged for England and Wales. With apology, I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 173LB to 173N not moved.]
Baroness Scotland of Asthal moved Amendments Nos. 173Pto 173Y:
Page 226, line 40, leave out "relevant" and insert "community"
Page 227, line 3, leave out sub-paragraph (7).
Page 227, line 27, leave out from "which" to end of line 29 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made."
Page 228, line 22, at end insert—
"( ) in relation to any community order imposing a drug rehabilitation requirement which is subject to review, the court responsible for the order,"
Page 229, line 2, leave out from "which" to end of line 3 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made."
Page 230, line 6, leave out from "to" to "that" in line 7 and insert "the appropriate court"
Page 230, line 10, at end insert—
"(2) In this paragraph "the appropriate court" has the same meaning as in paragraph 16."
Page 231, line 15, leave out from first "which" to end of line 17 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made;"
Page 231, line 24, after "paragraph" insert "13,"
Page 231, line 39, leave out "a relevant" and insert "the"
On Question, amendments agreed to.
Schedule 7, as amended, agreed to.Clause 173 agreed to.
Schedule 8 [Transfer of community orders to Scotland or Northern Ireland]:
Baroness Scotland of Asthal moved Amendment No. 173Z:
Page 233, line 12, leave out "for"
The noble Baroness said: I have spoken to virtually all the amendments when dealing with the previous group. Perhaps the Committee will permit me to take up where I left off, at Amendments Nos. 175 and 177. Generically, all the other amendments to which I have spoken seek to make minor technical adjustments, as I outlined earlier.
Amendments Nos. 175 and 177 ensure that, if an offender is required to appear before a court in England and Wales, that court shall be either the sentencing court or the court that amended the order to transfer to Scotland or Northern Ireland. The original drafting did not provide for the latter, and we have cured that.
Amendment No. 176 aligns the wording in paragraph 13(a) and (b), but the meaning is unchanged. They are all technical amendments. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal moved Amendments Nos. 173ZA to l77:
Page 233, line 45, leave out paragraph (d) and insert—
"(d) subsection (4) of section 209 (availability of arrangements in local area)."
Page 234, line 3, leave out "Mental Health (Scotland) Act 1984" and insert "Mental Health (Care and Treatment) (Scotland) Act 2003"
Page 234, line 4, at end insert—
"(5) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted."
Page 234, line 37, leave out "for"
Page 235, line 5, after "has" insert "effect"
Page 235, line 16, leave out paragraph (d) and insert —
"(d) subsection (4) of section 209 (availability of arrangements in local area)."
Page 235, line 26, at end insert—
"(5) In section 205 (attendance centre requirement), any reference to an attendance centre has effect as a reference to a day centre, as defined by paragraph 3(6) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160(N.I. 24).
(6) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted."
Page 237, line 22, leave out from "before" to "that" in line 23 and insert "a court in England and Wales".
Page 237, line 36, leave out from "that" to end of line 38 and insert "the conditions in paragraph 3(1)(a) and (b) are satisfied in relation to any requirement to be imposed"
Page 237, line 44, leave out "the court which made the community order" and insert "a court in England and Wales"
On Question, amendments agreed to.
Schedule 8, as amended, agreed to.
Clause 174[Prison sentences of less than 12 months]:
7.15 p.m.
Baroness Anelay of St Johns moved Amendment No. 177A:
Page 102, line 32, leave out "Any power of a court to impose"
The noble Baroness said: With the leave of the Committee, I shall speak also to Amendments Nos. 177B and 177C. I shall not speak to, nor shall I move, Amendments Nos. 177D to 177F.
Chapter 3 of Part 12 deals with prison sentences of less than 12 months. It introduces the new sentences of custody plus and intermittent custody that were recommended by the Halliday report. My amendments relate to the custody plus sentence and cover its scope.
Clause 174(1) gives the scope as follows:
"Any power of a court to impose a sentence of imprisonment for a term of less than 12 months … may be exercised only in accordance with the following provisions of this section".
As I read the Bill, that means that a custody plus sentence may be imposed only where the power of a court to order imprisonment is a power to order imprisonment for less than 12 months—that is, where the maximum sentence is less than 12 months. However, the Explanatory Notes state that custody plus will apply to,
"all prison sentences of less than 12 months".
I ask the Minister to consider whether the drafting of subsection (1) is ambiguous, and whether, if the Government's intention is accurately reflected in the

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Explanatory Notes, the incorporation of the first three amendments of my group would make the position clearer by changing subsection (1) so that it reads as follows: "a sentence of imprisonment for a term of less than 12 months may be imposed by a court on an offender only in accordance with the following provisions of this section". As well as making the applicable part of the subsection clearer, the amendments would reduce the number of words and therefore might please some of my noble friends. I beg to move.
Lord Carlile of Berriew: The group includes six amendments tabled in the names of my noble friends. The theme behind those amendments is that courts should not impose as a soft option a more condign punishment than they would otherwise have imposed. Under the old system, many offenders were the subject of suspended sentences of imprisonment because it was an easy option for the courts in cases where a custodial sentence would not otherwise have been imposed. In some cases it worked; however, in other cases, it led to people who committed relatively minor breaches of suspended sentences serving a substantive term of imprisonment later.
As a result, the exceptional circumstances provision was introduced. For a time, it made suspended sentences extremely rare. More recently, the courts have become more generous in their interpretation of what is exceptional. The Court of Appeal Criminal Division has, in some circumstances, approved that change of attitude.
We are concerned that, with custody plus, intermittent custody and suspended sentences as set out in the Bill, we should not have the experience that we suffered under the old form of suspended sentence. In Amendment No. 177FA, therefore, we simply set out what I hope the Minister will agree is the principle that the Government intend should apply. It is that, rather than as an easy option, custody plus should be imposed only when the court is clear that a full custodial sentence would be justified.
In Amendment No. 177HA, we suggest that the court making a custody plus order should be required to give reasons why that order is regarded as appropriate and necessary. We are not asking for a lengthy reasoned judgment in the style of the Court of Appeal. We ask what one can reasonably expect of any court these days: succinct reasons or information explaining to the offender, and for the purposes of any appeal, why the order has been imposed.
In the general context to which I have referred, we are particularly concerned about intermittent custody. We are not opposed to the option of intermittent custody being available to the courts. As many tools as possible should be available for the courts to deal with criminal offences, to punish those who commit them and to avoid them having to spend longer in custody than is absolutely necessary. However, we fear that intermittent custody, in particular in its era of novelty, might be regarded as a soft option by some courts. It should be clear in the legislation, as set out in
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Amendment No. 177JA, that intermittent custody should be imposed only where the court is clear that a full custodial sentence would be justified. That is not a departure from established principle; it follows the established principle that applies for suspended sentences. In Amendment No. 177JB, as in the earlier amendments, we ask for reasons.
In Amendment No. 179ZB, which is in the same group but applies to Clause 181, we set out similar suggestions in relation to suspended sentences. They should be imposed only where a full custodial sentence would be justified, and the court should give reasons.
We say to the Minister that, whereas some of the suggestions that we have made today may be covered by the Bill, and may be implicit if not explicit, these items ought to be explicit in the Bill. The explanation required in the amendments would assist the courts and ensure that consistency without uniformity underpins sentencing policy.
Lord Renton: The amendments of my noble friend Lady Anelay do not alter the principles of Clause 174 but I think they improve its drafting. As to the details of the amendments—the number of weeks that should be considered in the various circumstances mentioned in subsections (5) and (7)—I hope that the Government will realise that the amendments make the matter much more realistic. To say that a custodial period should not be more than 13 weeks is most unrealistic and would tie the hands of the court unnecessarily.
Baroness Stern: I will speak very briefly because I feel great sympathy for the Minister. I am surprised that she is still awake and I am very grateful to her for being so. I think her stamina is extraordinary. I would like to say a word in support of Amendment 173FA and similar associated amendments spoken to by the noble Lord, Lord Carlile. It is very important that we try to include in the Bill the intended use of these new sentences.
Over many years, we have tried, through legislation, to advise sentencers on how we hope sentences will be used. Those attempts have usually failed. We are now in a situation in which the use of imprisonment is moving down a tariff, the use of community sentences has reduced and the use of fines has almost disappeared. None of that was intended by the legislation. In fact, successive legislation has hoped that the outcome would be different. More needs to be done than simply including the information in the Bill. However, if the sentences are to be used as the Government intend, that would be a good starting point for the subsequent training and implementation which, in the case of this Bill, will be a very substantial endeavour.
Lord Carlisle of Bucklow: I accept and concede to being totally confused, but I think that we are covering amendments that cover the whole of Clauses 174, 175 and 176. I could say to my namesake that the partial reason for my confusion may be that I have been out of the Chamber for the past 20 minutes, but was

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apparently speaking most of that time. I was in the Chamber while I was outside the Chamber according to the annunciator.
If I am correct in saying that we are covering these three clauses, I make some general comments. The provisions in Clause 176 are, as far as I know, totally new within the judicial system of this country. As I understand it, it effectively introduces weekend imprisonment. I apologise to the Minister, because I realise the stress that has been on her, but it is important that she sets out the purpose of Clause 176 and the way in which the Government intend it to be used.
Weekend imprisonment is extremely successful in Sweden although it is many years since I went there and saw what was happening. However, I have always understood that the problem in this country is one of space. I was always told that intermediate or intermittent custody—which I understand to be weekend imprisonment—could not be introduced because of the problem of where to imprison people. The prisons are full. I welcome this form of imprisonment because people who are able to work during the week should do so. They should serve their sentences by being required to report on a Friday evening as they are in Sweden and then released back to their work at a later stage until they have carried out the days of their sentence. However, we should know where those sentences are to be served and whether there is the necessary capacity.
Therefore, on Clause 176, I express my pleasure in seeing the idea in the Bill, but question whether the Government have thought through how the measure will be implemented. I hope that the Minister can help us on that point.
Clause 174 refers to prison sentences of less than 12 months. I understand that in custody plus the court will have the power to impose a sentence of up to 51 weeks stating the number of those weeks that shall not exceed 13, I believe, in which time will be spent in custody. The rest would be served under supervision. I am sorry to return to the committee that the noble Lord, Lord Dholakia, and I were on, but we went into the matter in considerable detail. The problem is that if we extend supervision, as this Bill intends, to sentences of less than 12 months, the increased pressure that is put on the probation service is enormous. One must ask the Government whether they have thought through the implications for resources that this proposal will have.
I confess that I do not have my copy of the Parole Review Committee report with me and I had to get the copy from the Library. I refer the Minister to Paragraph 294 of that report, in which we set out why, if a sentence is less than 12 months—while accepting that offenders should be released at the halfway stage and subject to recall up to the full stage if they commit a further offence—we did not believe that it was appropriate to impose conditions of supervision during that period. It states:
"But it is questionable whether it is cost-effective to have to set up supervision arrangements for those serving very short sentences and the sensible course therefore would be for everyone receiving a sentence of 12 months or more to receive supervision."
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Therefore, those serving sentences under 12 months should not, having looked at the resource implications, be subject to conditions other than the condition to be of good behaviour.
I have not given the Minister notice of these questions but I wonder whether the Government have thought the matter through. What are the implications for those services? Although we published the report some years ago—and it was a unanimous report—we were satisfied at the time that resources were not available sufficiently to provide supervision for short-term prisoners. My worry is that against the wishes of the Government, the effect of Clause 174 may be to increase rather than reduce the prison population. People will be brought back before the courts for being in breach of conditions that have been imposed during their short term of release under supervision, rather than merely being released with the overriding condition that, if they do anything criminal in that period, they will be brought back and dealt with for that offence, as well as the current one.
I ask the Government—not in a carping sense— whether they are satisfied about that. Have they considered the effect on resources? Do they believe that the resources that, we felt at the time, did not exist now exist? Are they satisfied that it will not lead to an increase in the prison population, rather than a reduction? Is it the best use of available resources to make people on short terms of imprisonment adhere to conditions other than the condition not to re-offend during their sentence?
7.30 p.m.
Baroness Scotland of Asthal: I agree with many of the comments made by the noble Lord, Lord Carlisle of Bucklow, about the utility of intermittent sentences and the need to think it through. I assure him that we have given much thought to the way in which it will operate. It may help the Committee if I say a few sentences about the work that we are doing together on the national Criminal Justice Board and the local criminal justice boards, which bring together all the criminal justice agencies in an attempt to adopt a more holistic approach.
The noble Lord will see, throughout all the provisions on sentencing, that we seek to create a better and closer partnership between the police, the Crown Prosecution Service, the courts, probation, prison and those in the voluntary sector who seek to assist offenders at whatever stage. We understand that there will be a greater need for interdisciplinary participation in some of the issues. It is not just a matter of intermittent sentences. We are examining the conditions attached to a caution, in the hope that we can prevent some offenders getting a criminal conviction. That involves work between the police, the CPS and the probation service at an early stage. We hope that that will reduce the number of people who accelerate up the scheme and the need to take advantage of the community service provision. Again, probation will be heavily involved in that. We will work with the probation service and others while offenders are in prison to carry out a risk assessment

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and, then, consider a resettlement package when the prisoners come out and the probation service picks them up.
We understand that there are new resource considerations. We also understand that it is incumbent on all parts of the criminal justice system to work together in a different way from that in which we have worked before. That is a throwback to some of our earlier debates, and it is one of the reasons why it will be so critical for the other disciplines that participate in the process to have a word or two to say on the Sentencing Guidelines Council to make sure that everything is threaded together. The noble Lord is right to say that, if the system is to work, we will have to think carefully about the new strains and stresses that will be put on all the agencies to allow us to deliver the new package.
We know that the research demonstrates that delivering the system in that way is likely to be the most effective way of making a difference to individual lives. In saying that, I refer to Amendment 177JA. I shall deal with the amendments spoken to by the noble Lord, Lord Carlile of Berriew, in more detail in a moment.
The noble Baroness, Lady Anelay of St Johns, moved Amendment No. 177A and spoke to Amendments Nos. 177B and 177C. She has not spoken to Amendments Nos. 177D, 177E and 177F, so I can leave those to one side. I say frankly that we did not understand the import of Amendments Nos. 177A, 177B and 177C. Although the amendments sought to improve the drafting of the provisions that enabled the court to impose the new sentence—custody plus—they appeared to us, at first blush, to be unnecessary, as they made no discernible difference to and had no discernible effect on the content of the clause. We considered that the current drafting was to be preferred. I listened to what the noble Baroness said, and I have not got an answer to her point. I would like to give her an answer, so I shall consider the matter again. I shall write to her in the interim, as soon as we have given the matter proper consideration, which we have not done at the moment.
The amendments spoken to by the noble Lord, Lord Carlile of Berriew, were supported by the noble Baroness, Lady Stern. I shall deal with some of the points raised. The amendments seek to ensure that the courts will pass a sentence of custody plus or intermittent custody or a suspended sentence only if it is clear that a full custodial sentence is justified. The amendments must be rejected because Clause 144 already sets out that a custodial sentence can be imposed only if the offence is so serious that neither a fine nor a community sentence would be adequate punishment. I know that that is the thrust of what the noble Lord wanted to demonstrate through the amendments.
Amendments Nos. 177FA, 177JB and 179ZB would not add any substance to the existing provisions. Similarly, there are already provisions in the Bill that require the court to give reasons for the sentence passed—Clause 167, which we discussed earlier—and ensure that the requirements attached to the sentence
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are appropriate, compatible and available. Amendments Nos. 177HA, 177JA and 179AA are, therefore, unnecessary. There are provisions to ensure that the court may not impose requirements such as programmes, activity or unpaid work, unless it is satisfied that the offender is suitable for them. There is also a provision in Clause 208 that ensures that the court may not impose any requirement that conflicts with the offender's religious beliefs.
I know that the Committee was concerned that we should not replicate the sort of constraints currently present on suspended sentences. I reassure the noble Lord, Lord Carlile of Berriew, that those matters have been dealt with, so he need not be concerned about that. The provisions are already there. There is no "exceptional circumstances" limitation in custody plus, intermittent custody or suspended sentences such as exists currently in suspended sentences. I hope that, with that, the noble Lord will feel content.
Baroness Anelay of St Johns: I am grateful to the Minister for saying that she will consider the drafting points that I raised. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 177B to 177FA not moved.]
Clause 174 agreed to.
Lord Bassam of Brighton: I beg to move that the House do now resume. In moving the Motion, I suggest that the House be again in Committee no later than 8.39 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Education (Specified Work and Registration) (England) Regulations 2003
7.40 p.m.
Baroness Blatchrose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 8th July, be annulled (S.I. 2003/1663).
The noble Baroness said: My Lords, the regulations before the House today have been amended since the initial draft. Therefore, consultation on the amended regulations is denied to those teachers and others who have concerns about the detail. That is why I am using this opportunity to invite the Minister to explain the changes and to respond to some of those concerns.
One of the changes would allow a person without a formal teaching qualification—that is, an instructor, an overseas trained teacher, who may or may not be familiar with the British school system, a teacher trainee who has yet to pass the skills test, or a trainee or graduate on a registered teacher programme—to be responsible for the direction and supervision of assistant teachers in our schools. If I am correct in my understanding that an unqualified person working as

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a teacher could be supervised by someone without qualified teacher status, that represents a serious deviation from the original draft regulations. If I am wrong, will the Minister specifically point out the legal reference which prevents that from being the case?
Under Regulation 6, an unqualified person is able to undertake the planning and preparation of lessons and courses for pupils, the delivery of lessons to pupils, and the assessment of and reporting on the development, progress and attainment of pupils. Such an unqualified person may carry out any or all of these functions for two years or even longer if the Secretary of State agrees. Would the Minister say what, over and above that list of professional activities, would differentiate the job description of a qualified teacher from an assistant teacher described in these regulations? Would the Minister also confirm that an unqualified person could be assigned teaching duties, as set out in Regulation 6, to support the work of a nominated person, referred to in paragraph (10) of Schedule 2, who may also be unqualified? If a person is deemed by a head teacher to have the skills, expertise and experience to plan, to prepare and deliver lessons, and to assess and report on the development, progress and attainment of pupils—which, frankly, is about the same job description as that of a fully qualified teacher—how will they be paid? Who will validate their qualifications?
Teaching assistants have played, and continue to play, a vital role in our schools. We have also had unqualified teachers employed in our schools for many years. However, at present, such teachers who are detailed in Sections 4 to 9 of Schedule 2—instructors, overseas, graduate or registered teachers—are strictly controlled by regulation, which is very different from the open-ended use by head teachers to employ anyone without explicitly defined limits.
Parents and teachers are concerned. That concern needs to be taken seriously. They want assurances that such people—unqualified—will not be used as a cheap substitute for a qualified teacher. It is clear that the supervisory teacher, who may be qualified or even unqualified, need not be physically present in the classroom or even in the school. There is nothing in these regulations which covers that. There are no minimum staffing levels for qualified teachers in a school. Unless I am mistaken, one qualified teacher could cover the teaching duties of more than one class with unqualified teachers. There is no limit on how many assistants teaching whole classes could be deployed at any one time.
I have heard that in Rochdale a conference took place recently where there was publicity boasting that schools could employ four cover assistants for the price of one teacher. Is the Minister aware of that? If so, what is her response to such a suggestion?
Previous regulations allowed head teachers to direct unqualified staff to work in prescribed circumstances. Any use of staff outside the regulations was deemed illegal. The previous, now repealed, Education (Teacher Qualifications and Health Standards) (England) Regulations 1999, state:
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"save in the cases and circumstances specified in Schedule 2 and subject to Regulations 11, 12, 13, 14 (which allows student teachers, overseas training teachers, and others on a route to QTS and, exceptionally, instructors employed when no qualified teacher is available), no person shall be employed as a teacher at a school unless he is a qualified teacher in accordance with Schedule 3".
As amended, these regulations enable persons, irrespective of their qualifications or absence of qualifications, to take on the core teaching duties of teachers, as set out in Regulation 6.
Two things occur to me. First, if my reading of these regulations is correct, let us have some honesty from government. Why not admit that unqualified teachers can be assigned whole classes and all the core teaching tasks of a qualified teacher without close supervision and without any limit on the numbers of assistants used in this way? Secondly, if teaching assistants have all the skills to fulfil the teaching duties set out in Regulation 6, rather than be used as cheap labour, they should have those skills validated and converted to qualified teacher status.
Teachers and parents can be forgiven for being suspicious of government at this time. Budgets are difficult. In order to cope financially this year, many schools have shed teachers and assistant teaching staff. Many schools have incurred deficit budgets with no guarantee whatever that the deficit will be recognised in next year's settlement. Unprecedented moneys are held back by central government—one has only to witness the massive capital and revenue spend on learning and skills councils and buildings and staff up and down the land, and even to calculate the number of additional people in education on the non-school-based teacher payroll who add little or no value to the education of our children in schools.
The pressure on heads and governors to economise on qualified teaching staff will be enormous. There is nothing in these regulations to prevent that situation. Because there is no framework for supervision of teaching assistants—it is clear that the qualified teacher may not be present necessarily when the assistant is planning, teaching, assessing, and so forth—there is an issue of responsibility, which is an important legal point. The qualified professional teacher or nominated person—set out in paragraph 10 of Schedule 2—who is nominally responsible for one, two or even more teaching assistants, could, in law, be held responsible for poor or inadequate teaching or an incident that took place in the classroom. Will the Minister tell the House where responsibility lies? How can qualified teachers meet such responsibilities when regulations do not address the role of supervision?
At a time when more teachers than ever are being required to teach subjects for which they are not trained, it would be a tragedy for children's education if non-qualified teachers, without a subject specialism, were given whole class preparation, delivery and assessment of education responsibilities. The morale of our teachers is not high now. They want greater professional freedom and greater protection of their professional status. The way in which these regulations are written leads to great uncertainty and a suspicion

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that they could become a licence to save money without regard to the consequences for children's education.
Perhaps I may finish by emphasising this point: I am not against teaching assistants. They have played an incredibly valuable role in our schools. I know that there are teaching assistants who are more than capable of taking on the role of the professional teacher. That is what we should be in business to do. Using them as teaching assistants may be an abuse of their use rather than using them for the right reasons. Nor am I against the freedom of governors and head teachers to select the appropriate staff to teach children in their schools. But loosely drafted regulations which, on the face of them, allow the appointment of anyone to take on core teaching duties, working to an unqualified teacher who is not even present in the classroom, do little to improve the confidence and morale of our professional teachers and the quality of education for our children in schools up and down the land. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 8th July, be annulled (S.I. 2003/1663).— (Baroness Blatch.)
7.50 p.m.
Earl Russell: My Lords, I am most grateful to the noble Baroness, Lady Blatch, for tabling this Prayer and for speaking to it so thoroughly and clearly. Those things needed to be said and I hope that she may have saved me a little time.
What strikes me strongly about these regulations is that they represent a belated recognition within Whitehall that what is now becoming one of the major problems for our public services is the fact that people do not want to work in them. It is shortage which has created the need for regulations such as these. That shortage is to be found up and down the country and complaints are being made everywhere.
Two years ago, I told the House in the debate on the humble Address that we were listening to the sound of turning worms. Now we have regulations to deal with the wormcasts, and I do not think that we should be too surprised about that. In future, it should be a major object of policy to make people rather more willing to work in public service jobs than they have been hitherto. So I am sure that the Minister will be as grateful as I am that we do not have to consider the housing element of that in today's debate.
As the noble Baroness emphasised at the end of her speech, in anything that involves qualifications, some attempt must be made to strike a balance; I shall start there. When Members on these Benches express our dissatisfaction with these regulations, we have no wish to go back to the glorious days of the great demarcation disputes represented by Peter Sellers in his prime. We have no objection to the existence of assistants doing properly selected and appropriate jobs and—I stress that I agree with what was said by
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the noble Baroness, Lady Blatch—with the prospect of promotion if they show enough quality, range and imagination in carrying them out.
We do not need to insist that the normal qualifications should be the only way of showing merit. We remember, for example, the case of Professor Richard Titmuss, who was a university professor without ever having been awarded a first degree. That was perfectly proper because his merit was proved in other ways. In fact, personally I am in no position to disagree with this, having been one of the last three history professors in the country with no PhD. Perhaps I may say that one of the others was Professor Sir Keith Thomas. Anyone who becomes president of the British Academy may, I think, be assumed to have the qualifications for a professor.
It is also a matter of pride for me that at no time in my career have I ever been qualified to be one of my own pupils, as I predate A-levels. So I do not say that regular qualifications are the only method. What I am saying is that there must be some evidence of appropriate quality and some matching of the quality which is shown to what someone is allowed to do.
The noble Baroness spoke powerfully on Regulation 6 and has saved me a great deal of time. I wish to draw attention to only one other point, which is the existence of assessment. Assessment is something comparative. When crossing the Atlantic, I found that their B-plus grade is not quite the same ours. Learning about comparative assessment is something that takes a good deal of experience and it will cause overseas teachers some problems. And even within this country, most university teachers do not regard you as a safe mount on marking until you have gathered comparative experience over two or three years. But these people will be doing assessments on their own, immediately. That causes me concern.
It is more constructive to ask the noble Baroness— I have given her notice of this question—what is there which is not covered under Regulation 6? What is it that a qualified teacher may do but which an assistant benefiting f rom Regulation 6 may not? In particular, are teaching assistants to be allowed to write references for people applying for jobs? That is a matter which may be of concern to some employers; it certainly would be of concern to me. So the answer to the question, "The power to do what?", seems to be, "Almost anything".
I turn to the question, "The power to be given to whom?". Here we turn to Schedule 2. I shall not deal with all the categories set out in the schedule because they are pretty numerous, and I shall not deal, for example, with what has been described as the "grandfather" provisions, covering those who have been in the profession since before any of these systems of qualification existed. I see no need to disturb that. I shall deal with two particular categories, the first of which is overseas teachers.
The wording states,
"any country outside the United Kingdom … which is recognised as such a programme of training by the competent authority in that country".

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Therefore, if I have read the words correctly, it is the country's own domestic recognition which is at stake, not an international recognition. Are we in fact going to recognise the degrees awarded in every country in the world? If so, one must point out that they are not necessarily all of the same standard as each other.
I would not want to go back to the standard of one British university of the 1920s, which was considering an application for a PhD from someone who said that he had taken a BA from the university at Albuquerque, New Mexico. Looking at the paper upside-down, he read on the interviewer's notes a comment that looked suspiciously like, "No degree". I would not want to do that because there is more danger of the boot being on the other foot, but I would not want to assume a priori that every country in the world, including every Pacific islet, is capable of conferring qualifications at a standard which we would normally recognise. Certainly I want at least to ask a few questions about that.
The second point is that, unlike the power for student teachers, which may be continued indefinitely if the Secretary of State wishes it, the power for overseas teachers is confined to four years. I should like to know why the distinction has been made, and why a period of four years has been chosen. Even more important, how is this to be monitored? Is there any form of register of overseas teachers which records when they began teaching and how long they have been doing so? If there is no such register, then I should like to know how this provision is to be enforced. If one considers the standard performance of the Home Office in questions of nationality, immigration and so forth, it cannot be taken for granted that that department gets it right. That is certainly the opinion of the courts, which I take extremely seriously. So 1 want to know how the four-year provision is to be monitored.
Since 1997 we have seen a very considerable increase in the proportion of teachers without formal qualifications. The figure for 1997 was 2,500, while the figure for January 2003 was 11,000. Ministers in the other place have already been asked this, so I think that by now the noble Baroness will have been briefed: under what headings has this increase taken place? What proportion is made up of overseas teachers? What proportion comprises student teachers? What proportion is made up of what is set out in paragraph 10 of Schedule 2,
"other people of particular quality"?
We should like to know how the rise has happened.
Turning again to the question of overseas teachers, we should take note that the United States is beginning to do to us what we have been doing to South Africa. When that really gets under way, we may hear some rather different language about this subject from what we have heard hitherto. However, I shall not dwell on that now. Further, having taught in the United States, I cannot in any case dwell on it with too much force.
We have some problems in regard to trainee teachers and the colossal open-ended way in which the regulations are drafted. They are allowed to be
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assistants before they are admitted, before they have begun the course. At that stage one knows nothing whatever about them. Most of them probably have been rightly admitted, but no system of admission on earth is perfect. Some of them may be extremely mentally disturbed and highly unsuitable for admission. In my experience, I would estimate the figure as being in the region of 0.5 per cent. It may not be many, but it may be enough to create quite a few unpleasant headlines if some journalist has a mind to do so—and there is usually at least one that does.
These people are allowed to go on after having failed their BEd or whatever it may be. Before the war, the English used to make jokes about Indian applicants who filled in their application forms saying "Failed BA etc Calcutta". As it used to give great pleasure when I was in Sri Lanka just after it had won a Test series off us for the first time, it might give great pleasure in Calcutta—and I must give it its modern spelling—to be able to deal with applicants who are "Failed BEd etc London". That will not be very good for our standing in the world. A little bit of harmless pleasure at winning a test series is one thing; pleasure at falling standards in a place which used to be a Mecca for them, would be quite another.
What is more, the power to go on after failure— although it is formally limited to two years—may be extended by the Secretary of State, as far as I can see, more or less for as long as he wishes. If that happens, where is the incentive to take a degree course which may be becoming extremely expensive? Would any of your Lordships who are parents advise your child to spend the money on getting what he could get without it?
Paragraph 10 of Schedule 2—"Other persons who may carry out specified work"—poses quite different questions. There are many provisions in it which I cannot find in any of the provisions for trainees or student teachers. For example, it states that it is necessary that,
"the head teacher should be satisfied that he has the skills, expertise and experience required to carry out work specified in regulation 6."
Why is that provision not in any of the earlier regulations?
That raises the question of the status of these assistants in employment law. Where do they stand in relation to questions of unfair dismissal? The paragraph which deals with standards—paragraph 10(4) of Schedule 2—states that the head teacher may have regard to,
"such standards for higher-level teaching assistants, or guidance concerning school support staff as may be published from time to time by the Secretary of State".
We know that "have regard to" means practically nothing—we have the authority of the noble and learned Lord, Lord Simon of Glaisdale—but I have never seen the words "may have regard to" in legislation before. It is milk and water—but go easy on the milk, please. I should like to know what the words "may have regard to" mean and why they are there.

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I view these regulations with great misgivings. The ball is in the hands of the noble Baroness. She and I have discussed the question of regulations quite often before. My views are set out in a speech—which I have quoted so many times that people must be sick of it— of 20th October 1994. In that speech I express the view that maintaining our present status is essentially a matter of compromise. I do not see much sign of compromise by the executive here.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I have listened with great care to the points raised by the noble Earl, Lord Russell, and by the noble Baroness, Lady Blatch. I hope to deal with them effectively in the course of my response, but I wish to explain briefly the impact of the regulations and what we are seeking to do.
Noble Lords will have heard me speak before in your Lordships’ House about the significant contribution that we want to be made to improving standards in schools through the remodelling of the school workforce. The regulations help clarify the way in which schools can deploy their workforces more effectively, providing them with safeguards on standards and enabling them to deliver the benefits of the national agreement to their teachers and their other staff. They also preserve the role, status and overall responsibilities of qualified teachers in schools.
Many aspects of the regulations—the noble Earl, in particular, picked up some of them and I will deal with his points—including those regarding the role of qualified teachers and different types of unqualified teachers such as instructors, trainees on employment-based training routes and overseas trained teachers, update previous legislation. But, in one key regard, the regulations introduce new safeguards in an area where previously there has been a lack of clarity—that is, the deployment of growing numbers of support staff in schools. That is something I know the noble Baroness, Lady Blatch, supports and which I believe the noble Earl will also support.
In the past, there was nothing in law to say in what circumstances schools could deploy such individuals to teach whole classes or small groups of children, or to work with individual children. If they did so, there was nothing to say how schools should support those individuals, how they could be sure that the individuals had appropriate expertise or training, and how they could be sure that the standard of education for pupils was being maintained—an aim that 1 know is shared by the noble Baroness, Lady Blatch, and by the noble Earl, Lord Russell. In short, there was nothing to preclude someone with no qualifications or experience from teaching children of any age, whether for short periods or possibly longer. That was, in effect, the situation in the time before these regulations were introduced. I think we are all agreed that that is something we would wish to change. I believe that the thrust of the regulations will take us to where the noble Earl and the noble Baroness would wish us to be.
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We have introduced the regulations and the accompanying guidance for schools to provide a clearer legal framework. They recognise the contribution of individuals who are not teachers but may have other valuable qualifications and experience. The regulations also, as I have said, build in important safeguards.
Under these regulations, if support staff are to undertake any aspects of what we call specified work with groups or classes of children, including the delivery of lessons to pupils, a clear set of conditions must be complied with. First, they must undertake the work to assist or support the work of a teacher. Secondly, they must be under the direction and supervision of a teacher, and thirdly, the head teacher must be satisfied that the individual has the skills, expertise and experience to carry out the work. I believe that that addresses the noble Earl's point about knowing nothing about these people. The onus is very clear; the responsibility rests with the head teacher and teachers to make sure that those individuals have the necessary skills, expertise and experience. We have provided an indication of what we think those should be in the new standards for high level teaching assistants, published on 16th September. Early next year we will be introducing training to help individuals meet those standards.
Making it very clear what we expect to be done and the kind of training and experience we expect and then providing, through the Teacher Training Agency, the kind of high-level teaching assistance, training and support funded by the Government that is necessary— it is being piloted now and will be rolled out next Easter—will, we believe, enhance the quality of the experience for children in school, which I know that noble Lords on all Benches wish to see.
I do not believe that head teachers appoint people who do not have the appropriate skills, expertise and experience. I do not believe that they work to undermine their own standards in their own school.
Earl Russell: My Lords, the point about knowing nothing about these people related specifically to people who had yet to begin any course of teacher training. How do we know anything about them?
Baroness Ashton of Upholland: My Lords, people apply to attend teacher training courses. The noble Earl is referring to those attending through schools. Again, anyone employing anybody in a school is required to look at their expertise, experience and skills and ensure that they undergo the appropriate checks. I do not believe that head teachers would fail to do that.
Baroness Blatch: My Lords, I am grateful to the Minister for giving way. She said a moment ago that until now there has been no prescription about the way in which teaching assistants can be used in schools. I gave the noble Baroness chapter and verse of regulations that are to be repealed. Those regulations allowed head teachers to direct unqualified staff to undertake work in prescribed circumstances. Where

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are the prescribed circumstances? In the regulations before us, they simply do not exist, and the regulations I have just referred to have been repealed.
Baroness Ashton of Upholland: My Lords, I think we are very clearly within these regulations. If the noble Baroness will look at them, she will see that we lay out very clearly in Regulation 6 what specified work is. We have been very clear.
The noble Earl asked me specifically whether there were other things that teachers carry though. Indeed there are—for example, appraisal of staff, staff meetings, the direction of cover staff, and so on. They are all laid out in Part 12 of the teachers’ pay and conditions document, which gives a full list and to which I refer the noble Earl.
The noble Earl also asked me about references. We took the trouble to check with a number of head teachers. There has never been anything to prevent anybody giving anyone a reference but the head teachers are absolutely clear that within the teaching profession and in all schools, they would be the ones giving the references. It is not a legal requirement because references are given by whoever, but that would be their expectation, which I believe deals with the noble Earl's point.
We want to make sure that we have in our schools a flexible workforce to recognise the reality of what is happening there and to make sure that, as I said during the passage of the Education Bill, we do two things at the same time. One is to protect people working in schools and give them opportunities. I agree with the noble Baroness and the noble Earl that we want people to pursue the routes and the ladders of opportunity to becoming qualified teachers.
I also believe that there are people in our schools with expertise who do not wish to do that for a variety of reasons. They may not be graduates, for example, but could become a high-level teaching assistant. Under our modern foreign languages strategy, people with great linguistic skills and the ability to communicate with children are able to come into schools and teach a lesson under the supervision of a teacher. That teacher may not be in the room while the class is being taught a Portuguese lesson but is involved in ensuring that the lesson is delivered effectively, that the individual is monitored and is under supervision when it comes to planning the lesson. This has been true of lessons with musical instruments and of the instructor scheme when there has not been an available teacher and people come into schools from industry. I believe that what we are doing enhances what we have.
The noble Baroness was specifically concerned about nominated teachers and qualifications. I shall be as clear as I can on that. We have been very clear about unqualified teachers because we want to allow the following circumstances to apply.
The noble Earl, Lord Russell, referred often to overseas teachers, who are relevant in this context. The recognition that we give overseas teachers is restricted to those in the European Union and a few other
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countries, such as Switzerland and Scandinavian countries. No other qualifications are recognised. Those who come as overseas teachers are expected to qualify. The countries given recognition are the EU countries, Norway, Liechtenstein, Iceland and Switzerland. Teachers have four years in which to take the qualification to become a qualified teacher in this country. If they do not, they cannot continue. We believe that it is reasonable that teachers from Australia, or from other countries to which we do not automatically give that recognition, are given the opportunity to do that in four years. I hope that satisfies the noble Earl.
If a teacher is in that position, it is reasonable to say that there may be circumstances in which they would supervise a trainee. For example, a person who is actually in the process of getting a PGCE might do a bit of supervision as part of the training. Some nursery nurses and teachers appointed before 1989 do not have QTS. They can use teaching assistants as any other nursery teacher can—we would not want to exclude them.
The crucial factor is the discretion of the head teacher. I have been told in clear tones by the noble Baroness, Lady Blatch, and the noble Earl, Lord Russell, and many other Members of your Lordships' House about their desire to ensure that we recognise the experience and expertise of head teachers and let them get on with the job. Within what we are doing here is a clear steer to head teachers—to their professionalism.
Earl Russell: My Lords, I am extremely grateful to a lot of good answers that I have been given, but might I play Winnie-the-Pooh and be greedy? Can the Minister tell us how the four-year provision will be monitored?
Baroness Ashton of Upholland: My Lords, I can. Under the 1999 regulations, work permit and visa requirements provide an enforcement mechanism. As I understand it, that has worked well, and there is no reason to suspect that it should not continue to do so. They have been very effective.
Baroness Blatch: My Lords, the noble Earl has raised a serious point. During the four-year period, that person is not a qualified teacher as recognised in this country. Therefore, we are not simply referring to someone who is working towards a qualification in those four years being a teaching assistant in school. We are referring to someone who is acting as a supervisor, is responsible for assistants and is teaching whole classes, planning, preparing, teaching and assessing the development and attainment of children in schools. Those people are in the position that qualified teachers should be in.
There is a whole list in Schedule 2 of people who are unqualified—even a graduate teacher with no teaching qualifications at all is in that position, as are people working towards a qualified teacher status, who have very little experience at all. Those people are in a

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position of supervising someone in the classroom who looks to them as fully qualified professionals. The Minister so far has no answer to that at all.
Baroness Ashton of Upholland: My Lords, I believed that I was answering rather well.
Let me give the noble Baroness an example. I described my Portuguese teaching assistant coming into school. Let us say that a very well qualified teacher from another country, but one who is not yet recognised, is working in a school. That teacher might be in charge of some of the languages being taught in a primary school, and would have a classroom assistant available to come in and teach a class a particular language. It would be entirely consistent to ensure that those people were working very closely, that that teacher had supervision over what was being taught in the classroom, because he or she was the language teacher who would normally be teaching that class, and that the supervision was appropriate. I go back to the point that I have made several times. All that would happen under the direction of the head teacher, who makes the decisions about how that is done.
The noble Baroness, Lady Blatch, referred to assessments. I agree with her that a piece of course work that was to be assessed would clearly be in the province of a qualified teacher. However, if it were a set of multiple choice questions, it would be quite possible for a teaching assistant to mark it.
We are trying to recognise the reality of many schools today. Noble Lords will know from their visits to schools that there is a team approach to the delivery of education for our children. At the pinnacle of that team is the professional teacher, and available to that teacher is a range of different support, providing either expertise—in new technology, languages or music, for example—or the kind of support that classroom assistants have been given for some time.
As I said before in discussing the Education Bill, for the first time we have the regulations that will enable us to ensure that those people are well supervised, are not exploited and have the opportunities to which noble Lords have referred to get their qualifications and have the chance, if they wish, to move on to take further qualifications.
It is worth saying a little more about what we are trying to achieve in the whole area of the nominated teacher, so that the noble Baroness in particular understands it. We had a wide consultation process on the regulations. We discussed the issue at length with the signatories to the national agreement on raising standards and tackling workload; that is, with all the school workforce unions except the NUT, and with the local government employers. They all agreed that the "nominated teacher" approach was entirely appropriate.
In other words, it would help schools if they could use their instructors and certain categories of unqualified teachers—as I said, overseas trained teachers—in a way that enables them to deliver to their teachers the benefits of the national agreement. In fact,
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the groups of teachers covered by the "nominated teacher" definition will all benefit from the changes to the teachers’ contract which will be introduced as a result of the national agreement. It includes, for example, a limit on the amount of time they can be required to cover for absent colleagues and a guarantee of 10 per cent of their timetabled teaching time to undertake planning, preparation and assessment. Noble Lords have said time and again that they would like to see such arrangements as a means of lightening teachers burden of other work and allowing them to focus on the professional job that we want them to undertake.
We have good examples of the role of instructors and the support they have given. I believe that these regulations help to clarify the role of teachers and school support staff. I believe that they do what the noble Baroness said that she wanted to do—give greater professional freedom to head teachers, which is particularly important. It is not about cheap substitutes or shortages or about trying to find a cheap, easy fix for other issues. We are saying that the reality of our schools and of so many other aspects of our public sector world and indeed of our lives in general is about people working together, using different skills and experiences to provide high-quality support. I think that noble Lords should consider these regulations in the light of that critical factor and consider the way in which we are trying to provide flexibility and certainty.
We believe that these regulations will help to move forward our schools—to deliver higher standards, to ensure that we have professionalism and to support all those working in schools as effectively as possible. We have ensured that we have brought on board all but one of the key professional bodies involved in this. Those who have agreed to the national agreement are raising standards and tackling workload. Critically, the agreement has received the commitment of head teacher associations, local government employers, the support staff unions and three of the four teacher unions. The agreement has also been endorsed by the TUC. I am sad that the NUT is outside this. It is a pity that it wants the benefits but accepts none of the responsibilities. I am, however, very clear that these regulations will be an added plank in our drive to help schools raise standards and support all those working in schools. I hope that your Lordships will support them.
Baroness Blatch: My Lords, there is a huge gap in our understanding of what these regulations mean. I have read these words in the regulations over and over, but looked in vain for many of the points that the noble Baroness made. I do not doubt the Government's motives and I certainly do not doubt the noble Baroness's word about what she wants the regulations to achieve. However, we have to consider the words on a page which are legally binding.
The noble Baroness started by saying that the regulations help to clarify what the Government intended. The reason I am here is that they provide no clarification whatever. She went on to say that they

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preserve the role and status of qualified teachers. I am here because of the great uncertainty surrounding the role and status of qualified teachers. We are not discussing a stop-gap measure or cover for sickness; we are talking about whole-class teaching for periods of up to two years and beyond, subject to the decision of the Secretary of State. We are talking about the preparation, the teaching and the assessment.
The noble Baroness said that the regulations introduce new safeguards. I asked her to specify the location of those safeguards. They simply are not here, neither for the assistant nor for the qualified teachers themselves. She said that the circumstances in which they could be used were not prescribed before but are prescribed now. I have looked in vain for the prescription. However, they used to be prescribed. Previously, if any head teacher operated outside those prescribed conditions, the use of an assistant teacher would be deemed illegal.
The noble Baroness said that the guidelines provide a clearer legal framework. No, they do not. Guidelines do not provide legal frameworks at all; guidelines explain the legalese of the regulations and the primary legislation.
The noble Baroness said that the assistants must support the work of a teacher. However, that teacher is not necessarily a qualified teacher. That teacher can be barely off the ground in training. The noble Baroness said that assistants would be directly supervised by a teacher. They will neither be directly supervised, as has been admitted by the noble Baroness, nor will they be physically supervised as the teacher, as I said, does not necessarily have to be in the classroom or even in the school. As I also said, there is no limit on how many assistants one single teacher, either qualified or unqualified, can be responsible for.
The noble Baroness said that Regulation 6 describes all the conditions under which assistants can be used. In fact, Regulation 6 spells out the job of a teacher. I specifically asked—the noble Earl asked this in a very different way—what there was over and above what is contained in Regulation 6 that a qualified teacher does that is different from the teacher who is expected to carry out—
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness for giving way. I interrupt her only to say that I answered that point by saying that all that is listed in part 12 of the teachers' pay and conditions. I gave two specific examples: first, dealing with cover, attending staff meetings and so on, and, secondly, staff appraisal.
Baroness Blatch: My Lords, the noble Baroness said—we can consult Hansard tomorrow—that Regulation 6 sets out the conditions under which teachers can be employed. It does not; it simply sets out the job description almost of a teacher, with the exception of staff appraisal, that these unqualified people, working under unqualified people, will carry out.
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As I said, the nominated teacher can be a totally unqualified person. We mentioned the overseas teacher but it can be someone barely into, not out of, training school. The noble Baroness was generous in referring to teaching Portuguese. Let us enter the real world. These regulations apply to all schools and all subjects. Let us talk about maths, geography, history and English—some of the fundamental subjects. I halfway meet the noble Baroness in that I think that there is a role for instructors in vocational subjects and in the practical side of music and in some language teaching. But that is a very different kettle of fish from what these regulations are licensed for. It is possible under these regulations for an unqualified assistant working under an unqualified teacher to be the whole class teacher for as long as two years or more with a single year group of children. For two years out of their five years in school some children could be subject to that kind of unqualified teaching. As I said, that is against a background of more teachers than ever teaching subjects for which they are not trained. This measure will add insult to injury for our children.
The noble Baroness said that assessment was work for a qualified teacher. I agree with that but that is not what the regulations say. The regulations permit,
"assessing the development, progress and attainment of pupils; and reporting on the development, progress and attainment of pupils".
Under Regulation 6 that can be done by an unqualified teacher working under an unqualified teacher.
Where is the clarification? It is not here. Where is the professional freedom for qualified teachers when their role in the classroom—the qualified teachers' role—is taken by an unqualified teacher for very long periods of time?
Let us make no mistake, the regulations before us make it possible for an assistant without qualifications to work for up to two years and beyond under another person who is also possibly not qualified without the latter having to be present either in the classroom or in the school. The regulations say nothing whatever about the conditions of supervision or the number of assistants who can be working under a professional.
I shall take the noble Baroness and the Government at their word, but the teachers will be watching the matter very closely, and so will the governors and the parents. At the end of the day the loser is not me, speaking for the Opposition, or the Minister as a Minister in this House. If things go wrong and our worst suspicions—and those of good professional teachers—are realised, the losers will be the children.
I shall not change the habit of a lifetime in this House by putting the Motion to a vote, but I shall say that I agree wholeheartedly with the noble Earl. The sooner the rules are changed so that we can look at regulations and amend them to make them more workable and more consistent with primary legislation—and more especially with the fine words of Ministers and the Government— the better. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Baroness Andrews: My Lords, I beg to move that the House do now adjourn during pleasure.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.31 to 8.41 p.m.]

Criminal Justice Bill
House again in Committee.
Clause 175 [Licence conditions]:
Baroness Anelay of St Johns moved Amendment No. 177G:
Page 104, line 6, leave out paragraph (b).
The noble Baroness said: I shall speak also to Amendments Nos. 177H and 179A. All these amendments stand in my name and that of my noble friend Lord Kingsland. They relate to the electronic monitoring requirements that are imposed on three types of offender: first, those offenders who are serving custody-plus sentences and are then released on licence; secondly, those offenders who are serving intermittent custody sentences and are released either temporarily or permanently on licence; and thirdly, those offenders who are serving suspended sentence orders.
Under the Bill, all these sentences can include a number of requirements on offenders serving their sentences in the community such as a curfew, unpaid work, or a prohibition on certain activities. My amendments probe the circumstances in which electronic monitoring will be used to enforce offenders' compliance with such conditions.
In the type of cases I have outlined, the Bill provides that when a licence contains either a curfew condition or an exclusion requirement, the court must ensure that that requirement is monitored electronically. One presumes that that means by the usual devices, such as the use of a tag or perhaps reporting via voice recognition. With technology as it is, matters may develop. The Bill sets out the proviso that that is to be the case unless,
"in the particular circumstances of the case, it considers it inappropriate to do so".
Therefore, my question is obvious: in what circumstances do the Government envisage that it will be inappropriate to monitor a curfew or an exclusion requirement through non-electronic means? What types of non-electronic means would be employed, and what kind of test is it envisaged that the courts would apply in arriving at the conclusion that electronic monitoring was "inappropriate"? Would defence counsel simply have to make an objection to the imposition of such a requirement or would evidence of the reasons for it being inappropriate be required?
Those will be important issues because the kind of offenders for whom curfew or exclusion requirements might be appropriate will include burglars or those convicted of domestic violence—people who are serious offenders. It is important that the Bill is clear
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about the circumstances in which such offenders may not be tagged or otherwise electronically monitored. That is the gist of Amendment No. 177G.
I apologise in advance for the length of time that I shall take on these amendments. It will help the Committee eventually because they are all grouped together, but it certainly takes some time to go through them.
Amendments Nos. 177H and 179A relate to the court's powers to order that electronic monitoring should be used when a number of other requirements, such as unpaid work, prohibited activity or supervision requirements, are included as part of the offender's licence conditions. In contrast to the duty—with the exception to which I referred previously—to impose electronic monitoring in the case of curfew or exclusion requirements, the court is to have complete discretion to order electronic monitoring in these latter cases.
Therefore, I tabled the amendments to try to obtain an explanation of how the Government see electronic monitoring being used by the courts in this context— particularly, in the context of sex offenders who are given short custodial sentences and are then subject to supervision requirements on their release. Will the need for public confidence and public protection be taken into account in deciding whether to tag such offenders? Or is it the Government's intention that electronic monitoring should be used in order to ensure the offender's compliance in cases such as that of the offender who commits perhaps a minor assault, spends two weeks in custody and is then given an unpaid work requirement on release? How widely do the Government intend that the discretion to order electronic monitoring should be used in the tens of thousands of cases in which custody plus and intermittent custody will be imposed each year?
I pause briefly to check that I have the groupings correct. There were so many changes that I want to ensure that I do not miss out some of the amendments.
It is important to ensure not only that the offenders comply with the conditions that are imposed on them when they are released into the community, but also to ensure that the public are protected to the greatest possible degree. Therefore, I would be grateful for further clarification from the Government on the role that they expect electronic monitoring to play in securing those aims.
I turn to Amendment No. 177J which relates to the new sentence of intermittent custody. It relates to Clause 176(8) which allows the Secretary of State to make an order requiring the courts to specify particular periods or particular parts of the week when making intermittent custody orders. The fact is that the wording in subsection (8) means that the essential element of intermittent custody—the precise nature of temporary licence periods during which the offender will be released from gaol for a short time—is being left entirely to secondary legislation. In the White Paper at paragraph 5.33, the Government say that intermittent custody would come in two forms, and only two forms; namely,
"where offenders will serve their custodial sentence at weekends or during the week".
Paragraph 468 of the Explanatory Notes goes further by giving three examples:
"between 2 and 4 days";
"to restrict custodial periods to weekends";
and "not Fridays".
Subsection (8) allows the Secretary of State to specify that the periods should begin or end at particular times of the day.
The powers given to the Secretary of State under the Bill to specify the precise nature of the intermittent custody periods go much further than the weekends or weekdays options mentioned in the White Paper. So far because this matter was not debated in another place, we have had no explanation from the Government of exactly what they intend by these provisions. That is why I have tabled these amendments. In another place the amendments were tabled but they were knocked out by a timetabling Motion.
We are being asked to agree to allow courts to impose part-time gaol sentences, but the extent to which those sentences are part time appears to be left entirely to the Secretary of State and secondary legislation. I am hoping that the Minister will assist us to take a leap into the dark by shining some light on the matter.
Finally, I come to Amendment No. 177K. It would insert three new subsections into Clause 177 which would prohibit the courts from passing a sentence of intermittent custody on certain categories of serious offender. It is intended as a probing amendment to ask the Government to explain the types of offence for which a sentence of intermittent custody would be imposed. As we have heard in previous debates, it is effectively a part-time gaol sentence.
New subsection (1A) in the amendment would prevent a sentence of intermittent custody being passed on any registered sex offender regardless of whether or not the offence for which the sentence was passed was a sexual offence. A similarly worded exclusion of course already exists for the home detention curfew scheme, which provides for early release on electronic tags. That is reproduced in Clause 236(4)(e). New subsection (1B) of my amendment would prevent intermittent custody where the offender was being sentenced for an offence committed against a child and in new subsection (1C) where the offender was being sentenced for a class A drug dealing or trafficking offence.
As I read the Bill, there is no restriction whatever on the kind of offender who might receive intermittent custody orders. I have tabled these amendments to try to obtain an explanation of the Government's objectives. I beg to move.
Baroness Scotland of Asthal: Once again, now that I understand the purpose of the amendments tabled by the noble Baroness, I shall seek to give as much clarification as I can. I should perhaps preface that comment by saying that, as the noble Baroness will
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understand, the nature of each case will vary with the number of cases that come before the courts. Therefore, we cannot be entirely prescriptive.
We have already said that many of the areas touched upon by the noble Baroness will be subject to guidelines and guidance given by the sentencing council. I prefaced with those remarks because 1 do not think that it would be helpful for me to go into incredible detail as to what this offence would and this offence would not do. We are not seeking to usurp the function either of the judiciary determining the case or, indeed, the council when it has had the benefit of listening to what the panel says as to when it should and should not bear this in mind and the kind of considerations that it will have to take into account.
While we appreciate the wish inherent in Amendment Nos. 177G, 177H and 179A, to ensure compliance with licence conditions and suspended sentence requirements through electronic monitoring, we think that removing the discretion of the courts on whether such a condition is either a necessary or proportionate response would lead to monitoring in cases where it is not necessary on the basis of risk. We think that this could not be justified because each case will demand of the judiciary an exercise of discretion as to risk assessment that a particular offender may pose on a whole plethora of bases.
I should also point out that in the conditions set out in Clause 175(3) there is an implied presumption that where the courts believe it is necessary to impose a curfew or an exclusion zone these will be monitored electronically. However, there may well be cases where it is not appropriate or possible electronically to monitor. If so, in the light of Amendment No. 177G, the courts may be deterred from imposing a curfew or exclusion condition. I am sure that that is not what the noble Baroness seeks to secure.
On Amendments Nos. 177H and 179A, it is likely that a substantial proportion of offenders sentenced to custody plus or a suspended sentence will have one or more of the conditions listed in these clauses included in their licence or sentence. However, in many cases, there will be no evidence to suggest that the offender presents a high risk of failing to comply with these conditions. Therefore, if we were electronically to monitor those offenders, regardless of the risks they pose, that would have substantial resource implications and could reasonably be described as a disproportionate response. For those reasons, the amendments are unattractive.
Intermittent custody is a new and radical form of prison sentence. It will be between 26 and 51 weeks long, of which up to 90 days are spent in custody. The custodial days will not be served consecutively as in other prison sentences but in blocks of several days. The offender will be on licence between the custodial blocks and beyond their end until the end of the sentence.
So one can imagine cases in which, for example, if we consider the pattern of offending behaviour, the individual may be prone to drink on a Friday night through to Saturday and Sunday. We may want to interrupt that behaviour to deprive that person of that opportunity, because he seems to be perfectly sober and

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proper between Monday and Friday. That is a way to allow the court to craft something that will have the desired effect—perhaps of denying the person his liberty and giving him an opportunity to consider the nature of his behaviour—but also to protect him by depriving him of an opportunity to behave badly again. Obviously, that may be very useful.
The sentence is also aimed at offenders who have crossed the custodial threshold but who have strong ties with the community, such as employment, education or caring responsibilities. Serving the custodial part of their sentence around those responsibilities should reduce the chance that they will reoffend, as those are all factors associated with reducing offending.
Amendment No. 177J removes an order-making power. That power allows the Secretary of State to make an order specifying that intermittent custody licence periods will consist of a prescribed duration; that they will begin or end at prescribed times of day; or that they should include or not include certain days of the week. Due to intermittent custody being such a new type of sentence, the order is intended to ensure that offenders end up with broadly similar intermittent custody licences. It should prevent offenders serving, for example, custodial blocks that consist of a single day, which would be impossible for the prison and probation services to manage.
The specifications in the order will be drawn up and, if necessary, amended for the optimal functioning of intermittent custody, as evidenced by the two pilot schemes due to be launched in January. We want to learn from those pilot schemes, look to see what works well and identify any difficulties so that before the scheme is applied more generally we shall have a better handle on how they should be crafted.
Amendment No. 177K would restrict the imposition of intermittent custody by excluding certain offences. Intermittent custody is not intended for offenders such as those listed in the amendment. First, at its maximum it is less than 12 months long. Secondly, such offenders would be screened out by the suitability requirement in Clause 177(2)(a). That states that the court may not make an intermittent custody order unless it has consulted an officer of a local probation board.
In practice, intermittent custody would be recommended in a pre-sentence report, following an assessment of the offender's personal circumstances and needs and a risk assessment of the offender's suitability for a punishment with a community element. I am sure that the noble Baroness will appreciate that those risk assessments are infinite in their variety. I have not yet—perhaps she has—ever met two identical offenders. They all seem to have some slight variation that we must take into account.
There may be additional dangers in listing those offences which are excluded from intermittent custody, in that sentencers may assume that it is thus suitable for any other offender, when in fact the decision must be made on a case-by-case basis. It is
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likely that the offences most likely to result in intermittent custody include theft, fraud, forgery and the less serious driving offences. But it may be possible to extend it.
It is interesting that Members of the Committee have expressed strongly a wish for judges to be independent and to have discretion. In all these amendments, I hope that Members of the Committee will see clearly why we think that discretion needs to be left with the sentencer, who will have the flexibility to do that which will best suit the needs of the victim, the justice of the case and the defendant in terms of his reformation and punishment. Our framework allows judges and sentencers to do just that.
Baroness Anelay of St Johns: I am grateful to the Minister for her careful response. I was trying to tease out a little more information about the Government's approach to the basis on which intermittent custody might be appropriate. She rightly responded that the Opposition want the judiciary to have discretion so the Government are giving it discretion. My response is that, as ever, I agree entirely with the idea of judicial discretion and, in particular, that the sentencer needs flexibility to impose the right solution for each particular person and offence.
I shall return to a debate that we had before the dinner break—that can happen only when the resources are there properly to effect it, where the sentencers have the confidence of knowing that the resources are there, and where they have the confidence of the executive that they are imposing such sentences in the kind of cases to which the public expects them to apply. It is not quite as easy as the Minister says it is for us to accept that it is just a matter of judicial discretion. There is a lot more responsibility on all of us to ensure that the judiciary is supported.
I will look carefully at these issues before Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 177H and 177HA not moved.]
Clause 175 agreed to.
Clause 176[Intermittent custody]:
[Amendments Nos. 177J to 177JB not moved.]
Clause 176 agreed to.
Clause 177 [Restrictions on power to make intermittent custody order]:
[Amendment No. 177K not moved.]
Clause 177 agreed to.
Clause 178 agreed to.
Clause 179 [Further provisions relating to intermittent custody)]:
Baroness Scotland of Asthal moved Amendment No. 177KA:
Page 106, line 11, leave out subsection (3).
The noble Baroness said: This group of amendments concerns intermittent custody, a new sentence designed to retain an offender's ties to the community, which are

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associated with reduced reoffending. The sentence might be especially appropriate if an offender has employment, education or childcare responsibilities.
Amendment No. 177KA removes a restriction on the Secretary of State paying discharge grants to intermittent custody only at the end of the final custodial period. Intermittent custody is a sentence to which an offender consents. If the offender does not consent, ordinary custody is imposed. It is unlikely that any offenders will consent to it if they have to pay for transportation to and from the prison. That is especially important in the women's estate, where the "catchment area" is so large that women are likely to travel long distances to an intermittent custody centre. The removal of the subsection will allow the Secretary of State to subsidise offenders' travel to and from the centre where they are to serve their sentence.
Amendments Nos. 177KB, 203ZA and 203AA deal with procedures to apply when an intermittent custody offender is unlawfully at large. Amendment No. 177KB clarifies what is meant by "unlawfully at large" in the context of intermittent custody. The amendment makes it clear that in addition to absconding from custody, an offender who does not return to custody following a licence period will also be at large.
Amendments Nos. 203ZA and 203AA provide for what will happen to an intermittent custody prisoner after being returned to custody following a period unlawfully at large. The new clause ensures that the offender does not have to be released again for his next intermittent licence period. Instead, the Secretary of State can keep him in custody while an application to the court is made to vary the order to full-time custody. The Secretary of State does not have to do this if it turns out that the offender was unlawfully at large for good reason. The Secretary of State can allow him to resume his intermittent sentence.
The Secretary of State must make the application within 72 hours. Once the application is made, the offender stays in full-time custody until the application is decided by the court. The new clause also makes it clear that if an intermittent custody offender has been recalled to prison, the Secretary of State does not have to release him for his next licence period. His sentence becomes one of full-time custody. The Committee will see why we need to make those re-adjustments.
Amendment No. 208B allows an intermittent custody prisoner who has been recalled but immediately re-released by the parole board to resume his intermittent custody, rather than requiring him to serve full-time custody. If the parole board does not re-release him immediately, it must decide when the prisoner should be released, as with all prisoners, under Clause 245.
Amendment No. 208C inserts a definition of intermittent custody prisoners into the interpretations, which is now necessary on the basis of the amendments tabled.
Amendment No. 250 provides for the early commencement under Clause 305 of the order-making power in Clause 176(8). This allows the Secretary of State to make provisions about the licence periods that the court may specify as part of the new sentence of
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intermittent custody. It would enable him to specify the length of the licence periods, particular days of the week on which the licence periods can begin or end and periods including or not including specified parts of the week. We need this provision in force upon Royal Assent, in order to draft the necessary secondary legislation in time for a pilot of intermittent custody which is due to start on 19th January 2004.
Amendment No. 179ZA—the last, the Committee will be pleased to know—allows the Secretary of State, in addition to the responsible officer and the offender, to apply to the court to change the pattern of intermittence in an intermittent custody order. That might be necessary if an offender on intermittent custody behaves so badly that he is clearly unfit for this type of sentence. I have taken a little time to clarify the way in which the provision will operate because I know that practitioners and others need to understand how it all fits together.
Lord Carlile of Berriew: I would like to comment on the transport to courts of women prisoners. Those of us who spend a lot of time in the criminal courts have our own catalogue of horror stories about prison transport, which is a particular problem with women prisoners. Any additional money to ensure a better operation of transport to and from courts for women prisoners is very welcome, but the money on its own will not solve the problem.
Those of us who have witnessed some of the events that I am describing know that turning the money into an efficient organisation of transport of prisoners to court may be a greater task than at first sight one might imagine. I cite the example of Styal prison in Cheshire: a prison that looks after its inmates very well. However, the transport from Styal to court is a very big problem for courts throughout the north-west and in North Wales. I know of a woman prisoner who was charged with and later acquitted of murder who was brought to court in Warrington every day, suffering quite ridiculously long journeys en route because other people had to be dropped off at magistrates' courts on the way. On one occasion, the return journey from court, which should have taken about 30 minutes, was never completed. She was taken back to a police station, where she spent the night. A police constable in the station was repeatedly abusive to her during the night, taunting her for being a killer—I emphasise the fact that she was acquitted later. When she went to court, a senior judge—a presiding judge of the Wales and Chester circuit—when told what had happened, said, "We will not sit in the morning. She must be given time to sleep in the court cells".
The cost of all that to the court system was something like £5,000 or £6,000. We hope that, when more money is provided for the transport of female prisoners, it can be translated into better management of the transportation system. Most judges who deal with women prisoners—perhaps all prisoners—in the Crown Court sometimes despair at the delays that are caused by the prison transport system. It is not good in almost every part of the country.
Lord Renton: In Amendment No. 177KC, we have the first reference to "custody plus orders". They are referred to numerous times with regard to Scotland and Northern Ireland and with regard to the general provisions set out in the new schedule after Schedule 9.
I have looked hard and as diligently as I can for the definition of a custody plus order. There must be one somewhere. Will the noble Baroness tell us where we would find such a definition? I suggest that, if she cannot, if there is no definition, a definition should be inserted into the Bill on Report.
Baroness Scotland of Asthal: I am just looking for it. I shall write to the noble Lord. I can see so many references to custody plus. I shall have to look quickly at the interpretation schedule, and I shall do that the moment I sit down. I hope that the noble Lord will be content with that.
To the noble Lord, Lord Carlile of Berriew, I say that we recognise the difficulties that have been experienced with travel. One of the relevant issues is how we get correct, properly targeted information about precisely when individual prisoners will be needed and in what place. I know that that has been a difficulty for a long time. The Committee will know that we are investing more than £1 billion in criminal justice IT. I hope that the noble Lord will be pleased to know that, soon, we will have secure e-mail that can be used by courts, prosecutors, prisons and others to communicate more efficiently with one another on timings.
Lord Carlile of Berriew: Does the noble Baroness realise how far we have to go to reach that laudable conclusion? I know of a recent case in which the prison van bringing a prisoner to court was telephoned by the court in order to ascertain the whereabouts of the prisoner, who was late by some considerable time. Such was the electronic potential of the prison van that, in order for the mobile telephone to be answered, the van had to pull onto the hard shoulder of the motorway, and the telephone had to be transferred from one part of the van to the other. That is hardly the modern communications age.
Baroness Scotland of Asthal: Obviously, I cannot comment on that or many of the other examples. All I can say is that we understand the need for—
Lord Bassam of Brighton: Health and safety.
Baroness Scotland of Asthal: My noble friend says, "health and safety". We understand the need for better communication. I congratulate all the people who have worked with such diligence on criminal justice IT. Practitioners in the field have longed for secure e-mail for as long as I can remember. I am sure that a great "Hallelujah" will be said, when it finally arrives.
On Question, amendment agreed to.
Baroness Scotland of Asthal moved Amendment No. 177KB:
Page 106, leave out lines 17 to 21 and insert—
"(4A) For the purposes of this section a person shall also be deemed to be unlawfully at large if, having being temporarily released in pursuance of an intermittent custody order made under section 176 of the Criminal Justice Act 2003, he remains at large at a time when, by reason of the expiry of the period for which he was temporarily released, he is liable to be detained in pursuance of his sentence."
On Question, amendment agreed to.
Clause 179, as amended, agreed to.
Clause 180 agreed to.
9.15 p.m.
Baroness Scotland of Asthal moved Amendment No. 177KC:
After Clause 180, insert the following new clause—
"TRANSFER OF CUSTODY PLUS ORDERS AND INTERMITTENT CUSTODY ORDERS TO SCOTLAND OR NORTHERN IRELAND
Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) shall have effect."
The noble Baroness said: Amendments Nos. 177KC, 252CA, 179ZAA, 226A, 227ZD, 243A, 243B, 244AC, 246ZA and 246AB amend current legislation so that arrangements for transferring prisoners apply to the new sentencing framework. Transfers of custody plus and intermittent custody, which can transfer once intermittent custodial periods have been served, require a schedule as this sentence is unique. The schedule is based on that for transferring suspended sentence orders.
The other amendments are to Schedule 1 to the Crime (Sentences) Act 1997 where current arrangements are set out. These amendments enable all other custodial sentences of a determinant length to transfer. I could amplify each of the amendments, but I hope that suffices. If there are any particular matters that Members of the Committee wish to raise in respect of any of the amendments, I shall be happy to deal with them. I beg to move.
Lord Renton: I owe the noble Baroness an apology. I was premature in referring to this new clause. She addressed the point at the time. I do not expect any further explanation from her.
On Question, amendment agreed to.
Schedule 9 [Revocation or amendment of custody plus orders and amendment of intermittent custody orders]:
Baroness Scotland of Asthal moved Amendment No. 178:
Page 239, line 8, after "of insert "the Secretary of State or"
The noble Baroness said: This amendment applies to custodial sentences of under 12 months; that is, custody plus and intermittent custody, which will have licence conditions set by the court. However, there may be situations in which events occur in an offender's life during his stay in prison such that a further licence condition is necessary for public protection. Custody plus offenders can be in prison for up to three months. Such events may occur within that

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time frame. For example, the offender's relationship might break down and he may make threats towards his partner. An exclusion requirement may be necessary in this case to ensure the safety of the partner.
Amendments Nos. 206 to 208 ensure that the Secretary of State can add a licence condition to sentences of custody plus and intermittent custody for the purpose of public protection only. The Secretary of State would be able to choose only from the list of licence conditions available to the court. The conditions most likely to be used are exclusion, curfew and prohibited activity.
Amendments Nos. 205A and 208A clarify what is to happen to the court-set licence conditions of custody plus and intermittent custody sentences once the offender has been recalled to prison. Amendment No. 207A is a drafting clarification. It is intended to make it clear that a curfew condition on an intermittent custody licence cannot be in force at the same time as a curfew condition on an HDC licence given to intermittent custody offenders. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 179ZA:
Page 239, line 44, after "offender" insert ", the Secretary of Stale"
On Question, amendment agreed to.
Schedule 9, as amended, agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 179ZAA:
After Schedule 9, insert the following new schedule—
"TRANSFER OF CUSTODY PLUS ORDERS AND INTERMITTENT CUSTODY ORDERS TO SCOTLAND OR NORTHERN IRELAND

PART 1 INTRODUCTORY
1 In this Schedule—

(a) "the 1997 Act" means the Crime (Sentences) Act 1997 (c. 43), and

(b) any reference to a requirement being imposed by, or included in a custody plus order or intermittent custody order is a reference to compliance with the requirement being required by the order to be a condition of a licence.

PART 2 SCOTLAND
2

(1) Where the court making a custody plus order is satisfied that the offender resides in Scotland, or will reside there during the licence period, the court may, subject to sub-paragraph (2), impose requirements that are to be complied with in Scotland and require the offender's compliance with the order to be supervised in accordance with arrangements made by the local authority in Scotland in whose area he resides or will reside.

(2) The court may not make an order by virtue of this paragraph unless it appears to the court—

(a) in the case of an order imposing a requirement mentioned in sub-paragraph (3), that arrangements exist for persons to comply with such a requirement in the locality in Scotland in which the offender resides, or will be
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residing during the licence period, and that provision can be made for him to comply with the requirement under those arrangements, and

(b) in any case, that suitable arrangements for supervising his compliance with the order can be made by the local authority in whose area he resides, or will be residing during the licence period.

(3) The requirements referred to in sub-paragraph (2)(a) are—

(a) an unpaid work requirement,

(b) an activity requirement,

(c) a programme requirement, and

(d) an electronic monitoring requirement.

(4) If an order has been made in accordance with this paragraph in relation to an offender but—

(a) the Secretary of Stale decides not to make an order under paragraph 1 or 4 of Schedule 1 to the 1997 Act in relation to him, and

(b) the offender has not applied under paragraph 22 of this Schedule for the amendment of the custody plus order or intermittent custody order,

the Secretary of State must apply to the court under paragraph 22 of this Schedule for the amendment of the order.

3 Where—

(a) the appropriate court for the purposes of paragraph 4 of Schedule 9 (amendment by reason of change of residence) is satisfied that the offender in respect of whom a custody plus order or intermittent custody order is in force is residing in Scotland, or proposes to reside there during the licence period,

(b) the Secretary of State has made, or has indicated his willingness to make, an order under paragraph 1 or 4 of Schedule 1 to the 1997 Act in relation to the offender, and

(c) it appears to the court that the conditions in paragraph 2(2)(a) and (b) are satisfied,

the power of the court to amend the order under Schedule 9 includes power to amend it by requiring the requirements included in the order to be complied with in Scotland and the offender's compliance with them to be supervised in accordance with the arrangements referred to in paragraph 2(2)(b).

4 A court may not by virtue of paragraph 2 or 3 require an attendance centre requirement to be complied with in Scotland.

5 A custody plus order made in accordance with paragraph 2 or a custody plus order or intermittent order amended in accordance with paragraph 3 must—

(a) specify the local authority area in which the offender resides or will reside during the licence period, and

(b) require the local authority for that area to appoint or assign an officer who will be responsible for discharging in relation to him the functions conferred on responsible officers by Part 12 of this Act;

and section 207 (petty sessions area to be specified) does not apply in relation to an order so made or amended.

6

(1) Where a court makes a custody plus order in accordance with paragraph 2 or amends a custody plus order or intermittent custody order in accordance with paragraph 3, the court must provide the relevant documents to—

(a) the local authority for the area specified in the order, and

(b) the sheriff court having jurisdiction in the locality in which the offender resides or proposes to reside;

and paragraphs (b) to (d) of subsection (1) of section 210 (which relate to the provision of copies) do not apply in relation to an order so made or amended.

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(2) In this paragraph, "the relevant documents" means—

(a) a copy of the order as made or amended, and

(b) such other documents and information relating to the case as the court making or amending the order considers likely to be of assistance.

7

(1) In relation to the making of a custody plus order by virtue of paragraph 2, in relation to the amendment of a custody plus order or intermittent custody order by virtue of paragraph 3, and (except for the purposes of paragraph 22) in relation to an order so made or amended, Chapter 4 of Part 12 of this Act has effect subject to the following modifications.

(2) Any reference to the responsible officer has effect as a reference to the officer appointed or assigned under paragraph 5(b).

(3) The following provisions are omitted—

(a) subsection (7) of section 192 (activity requirement);

(b) subsection (7) of section 193 (programme requirement);

(c) subsection (4) of section 209 (availability of arrangements in local area).

(4) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted.

8 In this Part of this Schedule "local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39) and any reference to the area of such an authority is a reference to the local government area within the meaning of that Act.

PART 3 NORTHERN IRELAND
9

(1) Where the court making a custody plus order is satisfied that the offender resides in Northern Ireland, or will reside there during the licence period, the court may, subject to sub-paragraph (2), impose requirements that are to be complied with in Northern Ireland and require the offender's compliance with the order to be supervised in accordance with arrangements made by the Probation Board for Northern Ireland.

(2) The court may not make an order by virtue of this paragraph unless it appears to the court—

(a) in the case of an order imposing a requirement mentioned in sub-paragraph (3), that arrangements exist for persons to comply with such a requirement in the petty sessions district in Northern Ireland in which the offender resides, or will be residing during the licence period, and that provision can be made for him to comply with the requirement under those arrangements, and

(b) in any case, that suitable arrangements for supervising his compliance with the order can be made by the Probation Board for Northern Ireland.

(3) The requirements referred to in sub-paragraph (l)(a) are—

(a) an unpaid work requirement,

(b) an activity requirement,

(c) a programme requirement,

(d) an attendance centre requirement, and

(e) an electronic monitoring requirement.

(4) If an order has been made in accordance with this paragraph in relation to an offender but—

(a) the Secretary of State decides not to make an order under paragraph 1 or4ofSchedule 1 to the 1997 Act in relation to him, and

(b) the offender has not applied under paragraph 22 of this Schedule for the amendment of the custody plus order or intermittent custody order,

the Secretary of State must apply to the court under paragraph 22 for the amendment of the order.

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10 Where—

(a) the appropriate court for the purposes of paragraph 4 of Schedule 9 (amendment by reason of change of residence) is satisfied that the offender in respect of whom a custody plus order or intermittent custody order is in force is residing in Northern Ireland, or proposes to reside there during the licence period,

(b) the Secretary of State has made, or has indicated his willingness to make, an order under paragraph 1 or 4 of Schedule 1 to the 1997 Act in relation to the offender, and

(c) it appears to the court that the conditions in paragraph 9(2)(a) and (b) are satisfied,

the power of the court to amend the order under Schedule 9 includes power to amend it by requiring the requirements included in the order to be complied with in Northern Ireland and the offender's compliance with them to be supervised in accordance with the arrangements referred to in paragraph 9(2)(b).

11 A custody plus order made in accordance with paragraph 9 or a custody plus order or intermittent custody order amended in accordance with paragraph 10 must—

(a) specify the petty sessions district in Northern Ireland in which the offender resides or will reside during the licence period, and

(b) require the Probation Board for Northern Ireland to appoint or assign a probation officer who will be responsible for discharging in relation to him the functions conferred on responsible officers by Part 12 of this Act;

and section 207 (petty sessions area to be specified) does not apply in relation to an order so made or amended.

12

(1) Where a court makes a custody plus order in accordance with paragraph 9 or amends a custody plus order or intermittent custody order in accordance with paragraph 10, the court must provide the relevant documents to—

(a) the Probation Board for Northern Ireland, and

(b) the court of summary jurisdiction acting for the petty sessions district in which the offender resides or proposes to reside;

and paragraphs (b) to (d) of subsection (1) of section 210 (which relate to the provision of copies) do not apply in relation to an order so made or amended.

(2) In this paragraph, "the relevant documents" means—

(a) a copy of the order as made or amended, and

(b) such other documents and information relating to the case as the court making or amending the order considers likely to be of assistance.

13

(1) In relation to the making of a custody plus order by virtue of paragraph 9, in relation to the amendment of a custody plus order or intermittent custody order by virtue of paragraph 10, and (except for the purposes of paragraph 22) in relation to an order so made or amended, Chapter 4 of Part 12 of this Act has effect subject to the following modifications.

(2) Any reference to the responsible officer has effect as a reference to the probation officer appointed or assigned under paragraph ll(b).

(3) The following provisions are omitted—

(a) subsection (7) of section 192 (activity requirement);

(b) subsection (7) of section 193 (programme requirement);

(c) subsection (4) of section 209 (availability of arrangements in local area).

(4) In section 205 (attendance centre requirement), any reference to an attendance centre has effect as a reference to a day centre, as defined by paragraph 3(6) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24).

(5) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted.

PART 4 GENERAL PROVISIONS
14 This Part of this Schedule applies at any time while a custody plus order made in accordance with paragraph 2 or 9 or amended in accordance with paragraph 3 or 10, or an intermittent custody order amended in accordance with paragraph 3 or 10. is in force in respect of an offender.

15 In this Part of this Schedule—

"home court" means—

(a) if the offender resides in Scotland, or will be residing there during the licence period, the sheriff court having jurisdiction in the locality in which the offender resides or proposes to reside, and

(b) if he resides in Northern Ireland, or will be residing there during the licence period, the court of summary jurisdiction acting for the petty sessions district in which he resides or proposes to reside;

"local authority" and "local authority area" are to be read in accordance with paragraph 8;

"original court" means the court in England and Wales which made or last amended the custody plus order or intermittent custody order;

"the relevant officer" means—

(a) where the order specifies a local authority area in Scotland, the local authority officer appointed or assigned under paragraph 5(b), and

(b) where the order specifies a local authority district in Northern Ireland, the probation officer appointed or assigned under paragraph 1 l(b).

16

(1) Where this Part of this Schedule applies, Schedule 9 has effect subject to the following modifications.

(2) Any reference to the responsible officer has effect as a reference to the relevant officer.

(3) Any reference to the appropriate court has effect as a reference to the original court.

(4) Where the order specifies a local authority area in Scotland—

(a) any reference to the petty sessions area concerned has effect as a reference to that local authority area, and

(b) any other reference to a petty sessions area has effect as a reference to a local authority area.

(5) Where the order specifies a petty sessions district in Northern Ireland—

(a) any reference to the petty sessions area concerned has effect as a reference to that petty sessions district, and

(b) any other reference to a petty sessions area has effect as a reference to a petty sessions district.

(6) Paragraph 9 is omitted.

17

(1) The home court may exercise any power under paragraph 4 or 5 of Schedule 9 (amendment of custody plus order or intermittent custody order) as if it were the original court.

(2) Subject to sub-paragraph (3), where the home court proposes to exercise the power conferred by paragraph 5 of Schedule 9, otherwise than on the application of the offender, the court—

(a) if it is in Scotland—

(i) must issue a citation requiring the offender to appear before it, and

(ii) if he does not appear in answer to the citation, may issue a warrant for the offender's arrest;

(b) if it is in Northern Ireland—

(i) must issue a summons requiring the offender to appear before it, and

(ii) if he does not appear in answer to the summons, may issue a warrant for the offender's arrest;

and paragraph 8 of Schedule 9 does not apply to the home court.

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(3) Sub-paragraph (2) does not apply to any order canceling any requirement of a custody plus order or intermittent custody order.

(4) Where the home court is considering amending a custody plus or intermittent custody order, any reference in Chapter 4 of Part 12 of this Act to a local probation board has effect as a reference to a local authority in Scotland or, as the case may be, the Probation Board for Northern Ireland.

18 Where by virtue of paragraph 17 any application is made to the home court under paragraph 4 or 5 of Schedule 9, the home court may (instead of dealing with the application) require the offender to appear before the original court.

19 No court may amend or further amend a custody plus order or an intermittent custody order unless it appears to the court that the conditions in paragraph 2(2)(a) and (b) or, as the case may be, the conditions in paragraph 9(2)(a) and (b) are satisfied in relation to any requirement to be imposed; but this paragraph does not apply to any amendment made by virtue of paragraph 22(1).

20 The preceding paragraphs of this Schedule have effect in relation to any amendment of a custody plus or intermittent custody order by any court as they have effect in relation to the amendment of such an order by virtue of paragraph 3 or 10.

21 On the making of an order amending a custody plus order or intermittent custody order—

(a) the court must provide copies of the amending order to the offender and the relevant officer, and

(b) in the case of an amending order which substitutes a new local authority area or petty sessions district, paragraphs 5 and 6, or as the case may be paragraphs 11 and 12, have effect in relation to the order as they have effect in relation to an order made or amended in accordance with paragraph 2 or 3, or as the case may be, 9 or 10.

22

(1) Where—

(a) a custody plus order has been made in accordance with paragraph 2 or 9 or a custody plus or intermittent custody order has been amended in accordance with paragraph 3 or 10, but (in any of those cases) the Secretary of State has not made an order under paragraph 1 or4ofSchedule 1 to the 1997 Act in relation to the offender, or

(b) the Secretary of State has made, or indicated his willingness to make, an order under paragraph 7(1) of Schedule 1 to the 1997 Act transferring the offender or his supervision back to England and Wales,

the court may, on the application of the offender or the Secretary of State, amend the custody plus order or intermittent custody order by requiring it to be complied with in England and Wales.

(2) In sub-paragraph (1) "the court", in a case falling within paragraph (a) of that sub-paragraph, means the original court.

(3) In a case where paragraph 2(4) or 9(4) requires the Secretary of State to apply under this paragraph, the court must make an amending order under this paragraph.

(4) Where under this paragraph the court amends a custody plus order or intermittent custody order which contains requirements which, in the opinion of the court, cannot be complied with in the petty sessions area in which the offender is residing or proposes to reside, the court must, in accordance with paragraph 5 of Schedule 9, either—

(a) cancel those requirements, or

(b) substitute for those requirements other requirements which can be complied with if the offender resides in that area.

(5) Where the court amends under this paragraph any custody plus order or intermittent custody order imposing a programme requirement the court must ensure that the requirement as amended specifies a programme which is available in the petty sessions area in England and Wales in which the offender is residing or proposes to reside.

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(6) The custody plus order or intermittent custody order as amended under this paragraph must specify the petty sessions area in which the offender resides or proposes to reside in the licence period.

(7) On the making under this paragraph of an order amending a custody plus order or intermittent custody order, the court must—

(a) provide copies of the amending order to the offender, the relevant officer and the local probation board acting for the new petty sessions area, and

(b) provide the magistrates’ court acting for that area with a copy of the amending order and such other documents and information relating to the case as the home court considers likely to be of assistance to the court acting for that area in the exercise of its functions in relation to the order.

(8) Where an order has been amended under this paragraph, the preceding paragraphs of this Schedule shall cease to apply to the order as amended.

PART 5 SUPPLEMENTARY
23 Subsections (1) and (3) of section 245C of the Criminal Procedure (Scotland) Act 1995 (c. 46) (provision of remote monitoring) have effect as if they included a reference to the electronic monitoring of the requirements of a custody plus order made in accordance with paragraph 2 or a custody plus order or intermittent custody order made in accordance with paragraph 3.

24

(1) Section 4 of the Summary Jurisdiction (Process) Act 1881 (c. 24) (which provides, among other things, for service in England and Wales of Scottish citations or warrants) applies to any citation or warrant issued under paragraph 17(2)(a) as it applies to a citation or warrant granted under section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46).

(2) A summons issued by a court in Northern Ireland under paragraph 17(2)(b) may, in such circumstances as may be prescribed by rules of court, be served in England and Wales or Scotland."

On Question, amendment agreed to.
Clause 181 [Suspended sentences of imprisonment]:
[Amendment No.]79ZB not moved.]
Clause 181 agreed to.
Clause 182 [Imposition of requirements by suspended sentence order]:
[Amendments Nos. 179A and 179AA not moved] Clause 182 agreed to. Clauses 183 to 185 agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 179AAA:
After Clause 185, insert the following new clause—
"TRANSFER OF SUSPENDED SENTENCE ORDERS TO SCOTLAND OR NORTHERN IRELAND
Schedule (Transfer of suspended sentence orders to Scotland or Northern Ireland) shall have effect."
The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 254A and 179AX. These amendments enable offenders to serve their suspended sentence orders in Scotland or Northern Ireland.
A court can transfer a suspended sentence order at the point of sentence, or it can be amended to transfer. The court may not transfer an order unless it appears that arrangements exist for the offender to comply
394
with the requirements of the order in the area of Scotland or Northern Ireland that he wishes to transfer to, and that his supervision can be arranged. In practice, an officer of the local probation board attached to the court making the transfer phones their counterparts in the relevant area of Scotland or Northern Ireland. The receiving jurisdiction can refuse a transfer for any reason.
A copy of the order to transfer is sent to the local authority in Scotland or the Probation Board for Northern Ireland, which will be supervising the offender, and to the local court in the area. The local Scottish or Northern Irish court has the power to amend the order in the same way as an English or Welsh court has for ordinary suspended sentences.
If an offender does not comply with a requirement of their suspended sentence order, the local court in Scotland or Northern Ireland will hold a breach hearing and determine if there has been a breach. If there has, it will send a breach certificate to the court in England and Wales that made the transfer. The local court also has the option to ask the transferring court in England and Wales to determine if there has been a breach. In either case, it is the transferring court in England and Wales that deals with the breach. It cannot re-examine the question of whether a breach has occurred. The court has all the powers in Schedule 10 available to it in the case of breach, just as for ordinary suspended sentences. In most cases, the response to a breach will be the activation of the suspended sentence of imprisonment. I beg to move.
Lord Renton: I am rather puzzled. Amendment No. 179AX seeks to insert a new schedule after Schedule 10 which relates to the transfer of suspended sentence orders to Scotland or Northern Ireland. That presumably means a transfer from a court in England or Wales to Scotland or Northern Ireland. It states that where the court in England or Wales considering the making of a suspended sentence order,
"is satisfied that the offender resides in Scotland, or will reside there when the order comes into force, the court may not make a suspended sentence order in respect of the offender unless it appears to the court"
—and this is the point that worries me—
"(a) in the case of an order imposing a requirement mentioned in sub-paragraph (2)"—
that is the next paragraph in the new schedule—
"that arrangements exist for persons to comply with such a requirement in the locality in Scotland in which the offender resides, or will be residing when the order comes into force, and that provision can be made for him to comply with the requirement under those arrangements".
It seems to me that a court in England or Wales will have to make inquiry into the circumstances in perhaps a very remote part of Scotland. That is an unusual and a rather difficult task for a court in England and Wales.
I should be grateful if the noble Baroness could indicate, first, whether I have raised a point of practical possibility—I think it must be—and, if it is, how the English court will inquire into the

395
circumstances in Scotland? Presumably it must get in touch with the Scottish courts or the Scottish police. What will happen?
Baroness Scotland of Asthal: I hoped that I had made that clear in my initial response. However, I am very happy to repeat it. The benefits of the telephone have never been in greater evidence than in this case. I said that what will happen in practice is that an officer of the local probation board attached to the court making the transfer would phone his counterpart in the relevant area of Scotland or Northern Ireland and make inquiry as to whether there are appropriate facilities available for him to discharge his duty. The transfer does not have to be accepted. It is clear that the receiving jurisdiction can refuse a transfer for any reason, but appropriate attempts can be made to ascertain that fact.
This is designed to assist the position, which often occurs, where someone who has hitherto been resident in this country—but who may hail from Scotland or Northern Ireland, or may have family commitments there or may get a job there—wishes to transfer to live in either Scotland or Northern Ireland and seeks assistance so to do. It is a practical matter. We have brought forward Amendments Nos. 179AAA, 179AX and 254 to put in place the practical arrangements to ensure that these transfers are achieved with the greatest amount of ease.
On Question, amendment agreed to.
Schedule 10 [Breach or amendment of suspended sentence order, and effect of further conviction]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 179AB:
Page 241, line 21, at end insert—
"Orders made on appeal
2A Where a suspended sentence order is made on appeal it is to be taken for the purposes of this Schedule to have been made by the Crown Court."
The noble Baroness said: In moving Amendment No. 179AB, I shall speak also to the other amendments standing in my name in relation to Schedule 10, which concerns the breach, amendment and revocation of suspended sentence orders. These are a set of minor and technical amendments. Amendment No. 179AB provides that an order made on appeal is to be considered to be made by the Crown Court. This is normal practice and replaces the provision for community sentences. Amendments Nos. 179AC and 179AD are consequential amendments to Amendment No. 179AB.
Amendments Nos. 179AC to 179AH, 179AL and 179AT correct a drafting oversight which had ignored the possibility of a Crown Court making a suspended sentence order but directing that any failure to comply should be dealt with by a magistrates' court. Therefore, a number of references to an order which is made by the Crown Court need to be changed to an order,
"which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court".
Amendment No. 179AL allows the magistrates’ court to commit the offender to the Crown Court in a case of breach.
Amendment No. 179AJ corrects a drafting error. A reference to an incorrect subsection number has been corrected.
Amendment No. 179AK concerns the powers available to the court on breach of a suspended sentence. Amendments Nos. 179AM and 179AN correct another oversight; they ensure that if an offender breaches a suspended sentence by not complying with the requirement, the breach is determined by the court and not a jury if the breach is heard in a Crown Court. As drafted, this applied only to a case where an offender breached by committing a new offence.
Amendment No. 179AP corrects another oversight; it ensures that amendments to treatment requirements have to be made with the consent of the offender. Amendment No. 179AS omits a duplicated provision. Amendments Nos. 179AB and 179AJ slightly change the definition of the court to which the application must be made to extend an unpaid work requirement beyond 12 months. It is changed from,
"a magistrates’ court acting for the petty sessions area concerned"
to "the appropriate court" so that it can also apply to suspended sentences orders transferred to Scotland and Northern Ireland, in which case the appropriate court is the local Scottish or Northern Irish court.
Amendment No. 179AF replicates a provision in the community orders schedule, such that applications can be made by the responsible officer to amend treatment requirements while an appeal against the order is pending. No other amendment applications can be made while an appeal against the order is pending. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 179AC to 179AW:
Page 242, line 1, leave out "made by the Crown Court" and insert "which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court"
Page 242, line 15, leave out "made by the Crown Court" and insert "which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court"
Page 242, line 18, at end insert—
"( ) This paragraph applies to—

(a) a suspended sentence order made by a magistrates' court, or

(b) any suspended sentence order which was made by the Crown Court and includes a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court."

Page 242, line 19, leave out from "order" to "it" in line 20 and insert "to which this paragraph applies is in force"
Page 242, line 38, at end insert—
"( ) This paragraph applies to a suspended sentence order made by the Crown Court which does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates’ court."
Page 242. line 39, leave out from "order" to "it" in line 40 and insert "to which this paragraph applies is in force"
Page 243, line 13, leave out "184(5)" and insert "184(6)"
Page 243, line 37, leave out paragraphs (ii) and (iii) and insert—

"(ii) subject to subsections (3) and (4) of section 181, extending the supervision period, or

(iii) subject to subsection (3) of that section, extending the operational period."

Page 244, line 4, at end insert—

"(6) Where a suspended sentence order was made by the Crown Court and a magistrates’ court would (apart from this sub-paragraph) be required to deal with the offender under sub-paragraph (2)(a), (b) or (c) it may instead commit him to custody or release him on bail until he can be brought or appear before the Crown Court.

(7) A magistrates’ court which deals with an offender's case under sub-paragraph (6) must send to the Crown Court—

(a) a certificate signed by a justice of the peace certifying that the offender has failed to comply with the requirements of the community order in the respect specified in the certificate, and

(b) such other particulars of the case as may be desirable;

and a certificate purporting to be so signed is admissible as evidence of the failure before the Crown Court."

Page 244, line 4, at end insert—

"(8) In proceedings before the Crown Court under this paragraph any question whether the offender has failed to comply with the requirements of the suspended sentence order and any question whether the offender has been convicted of an offence committed during the operational period of the suspended sentence is to be determined by the court and not by the verdict of a jury."

Page 244, line 15, leave out sub-paragraph (3).
Page 244, line 35, at end insert—
"(2) A court may not under paragraph 7(2)(c)(i) amend a mental health treatment requirement, a drug rehabilitation requirement or an alcohol treatment requirement unless the offender expresses his willingness to comply with the requirement as amended."
Page 245, line 3, leave out sub-paragraph (3).
Page 245, line 37, leave out sub-paragraph (6).
Page 246, line 6, leave out sub-paragraph (3).
Page 246, line 11, leave out "made by the Crown Court" and insert "which was made by the Crown Court and does not include any direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court"
Page 248, line 13, leave out from "to" to "that" in line 14 and insert "the appropriate court"
Page 248, line 17, at end insert—
"(2) In this paragraph "the appropriate court" has the same meaning as in paragraph 12."
Page 248, line 21, at end insert—
"(2) Sub-paragraph (1) does not apply to an application under paragraph 14 which—

(a) relates to a mental health treatment requirement, a drug rehabilitation requirement or an alcohol treatment requirement, and

398

(b) is made by the responsible officer with the consent of the offender."

On Question, amendments agreed to. Schedule 10, as amended, agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 179 AX: After Schedule 10, insert the following new schedule—
"TRANSFER OF SUSPENDED SENTENCE ORDERS TO SCOTLAND OR NORTHERN IRELAND

PART 1 SCOTLAND
1 (1) Where the court considering the making of a suspended sentence order is satisfied that the offender resides in Scotland, or will reside there when the order comes into force, the court may not make a suspended sentence order in respect of the offender unless it appears to the court—

(a) in the case of an order imposing a requirement mentioned in sub-paragraph (2), that arrangements exist for persons to comply with such a requirement in the locality in Scotland in which the offender resides, or will be residing when the order comes into force, and that provision can be made for him to comply with the requirement under those arrangements, and

(b) in any case, that suitable arrangements for his supervision can be made by the local authority in whose area he resides, or will be residing when the order comes into force.

(2) The requirements referred to in sub-paragraph (l)(a) are—

(a) an unpaid work requirement,

(b) an activity requirement,

(c) a programme requirement,

(d) a mental health treatment requirement,

(e) a drug rehabilitation requirement,

(f) an alcohol treatment requirement, and

(g) an electronic monitoring requirement.

(3) Where—

(a) the appropriate court for the purposes of paragraph 13 of Schedule 10 (amendment by reason of change of residence) is satisfied that an offender in respect of whom a suspended sentence order is in force proposes to reside or is residing in Scotland, and

(b) it appears to the court that the conditions in sub- paragraph (l)(a) and (b) are satisfied,
the power of the court to amend the order under Part 3 of Schedule 10 includes power to amend it by requiring it to be complied with in Scotland and the offender to be supervised in accordance with the arrangements referred to in sub-paragraph (l)(b).

(4) For the purposes of sub-paragraph (3), any reference in sub- paragraph (1 )(a) and (b) to the time when the order comes into force is to be treated as a reference to the time when the amendment comes into force.

(5) The court may not by virtue of sub-paragraph (1) or (3) require an attendance centre requirement to be complied with in Scotland.

(6) The court may not provide for an order made in accordance with this paragraph to be subject to review under section 183 or 201: and where an order which is subject to review under either of those sections is amended in accordance with this paragraph, the order shall cease to be so subject.

2 A suspended sentence order made or amended in accordance with paragraph 1 must—

(a) specify the local authority area in which the offender resides or will be residing when the order or amendment comes into force, and

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(b) require the local authority for that area to appoint or assign an officer who will be responsible for discharging in relation to him the functions conferred on responsible officers by Part 12 of this Act;

and section 207 (petty sessions area to be specified) does not apply in relation to an order so made or amended.

3

(1) Where a court makes or amends a suspended sentence order in accordance with paragraph 1, the court must provide the relevant documents to—

(a)the local authority for the area specified in the order, and

(b)the sheriff court having jurisdiction in the locality in which the offender resides or proposes to reside;

and paragraphs (b) to (d) of subsection (1) of section 210 (provision of copies of relevant orders) do not apply in relation to an order so made or amended.

(2) In this paragraph, "the relevant documents" means—

(a) a copy of the order as made or amended, and

(b) such other documents and information relating to the case as the court making or amending the order considers likely to be of assistance.

4

(1) In relation to the making or amendment of a suspended sentence order in accordance with paragraph 1, and (except for the purposes of paragraph 20) in relation to an order so made or amended, Chapter 4 of Part 12 of this Act has effect subject to the following modifications.

(2) Any reference to the responsible officer has effect as a reference to the officer appointed or assigned under paragraph 2(b).

(3) The following provisions are omitted—

(a) subsection (7) of section 192 (activity requirement),

(b) subsection (7) of section 193 (programme requirement),

(c) subsection (4) of section 197 (residence requirement),

(d) subsection (4) of section 209 (availability of arrangements in local area).

(4) In section 198 (mental health treatment requirement), for subsection (2)(a) there is substituted—

"(a) treatment as a resident patient in a hospital within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003. not being a state hospital within the meaning of that Act;".

(5) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted.

5 In this Part of this Schedule "local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39) and any reference to the area of such an authority is a reference to the local government area within the meaning of that Act.

PART 2 NORTHERN IRELAND
6

(1) Where the court considering the making of a suspended sentence order is satisfied that the offender resides in Northern Ireland, or will reside there when the order comes into force, the court may not make a suspended sentence order in respect of the offender unless it appears to the court—

(a)in the case of an order imposing a requirement mentioned in sub-paragraph (2), that arrangements exist for persons to comply with such a requirement in the petty sessions district in Northern Ireland in which the offender resides, or will be residing when the order comes into force, and that provision can be made for him to comply with the requirement under those arrangements, and

(b) in any case, that suitable arrangements for his supervision can be made by the Probation Board for Northern Ireland.

(2) The requirements referred to in sub-paragraph (1 ) (a) are—

(a) an unpaid work requirement,

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(b) an activity requirement,

(c) a programme requirement,

(d) a mental health treatment requirement,

(e) a drug rehabilitation requirement,

(f) an alcohol treatment requirement,

(g) an attendance centre requirement, and

(h) an electronic monitoring requirement.

(3) Where—

(a) the appropriate court for the purposes of para graph 13 of Schedule 10 (amendment by reason of change of residence) is satisfied that an offender in respect of whom a suspended sentence order is in force proposes to reside or is residing in Northern Ireland, and

(b) it appears to the court that the conditions in sub- paragraphs (l)(a) and (b) are satisfied,

the power of the court to amend the order under Part 3 of Schedule 10 includes power to amend it by requiring it to be complied with in Northern Ireland and the offender to be supervised in accordance with the arrangements referred to in sub-paragraph (1)(b).

(4) For the purposes of sub-paragraph (3), any reference in sub- paragraph (l)(a) and (b) to the time when the order cones into force is to be treated as a reference to the time when the amendment comes into force.

(5) The court may not provide for an order made in accordance with this paragraph to be subject to review under section 183 or 201; and where an order which is subject to review under cither of those sections is amended in accordance with this paragraph, the order shall cease to be so subject.

7 A suspended sentence order made or amended in accordance with paragraph 6 must—

(a) specify the petty sessions district in Northern Ireland in which the offender resides or will be residing when the order or amendment comes into force, and

(b) require the Probation Board for Northern Ireland to appoint or assign a probation officer who will be responsible for discharging in relation to him the functions conferred on responsible officers by Part 12 of this Act;

and section 207 (petty sessions area to be specified) does not apply in relation to an order so made or amended.

8

(1) Where a court makes or amends a suspended sentence order in accordance with paragraph 6, the court must provide the relevant documents to—

(a) the Probation Board for Northern Ireland, and

(b) the court of summary jurisdiction acting for the petty sessions district in which the offender resides or proposes to reside;

and paragraphs (b) to (d) of subsection (1) of section 210 (provision of copies of relevant orders) do not apply in relation to an order so made or amended.

(2) In this paragraph, "the relevant documents" means—

(a) a copy of the order as made or amended, and

(b) such other documents and information relating to the case as the court making or amending the order considers likely to be of assistance.

9

(1) In relation to the making or amendment of a suspended sentence order in accordance with paragraph 6, and (except for the purposes of paragraph 20) in relation to an order so made or amended, Chapter 4 of Part 12 of this Act has effect subject to the following modifications.

(2) Any reference to the responsible officer has effect as a reference to the probation officer appointed or assigned under paragraph 7(b).

(3) The following provisions are omitted—

(a) subsection (7) of section 192 (activity requirement),

(b) subsection (7) of section 193 (programme requirement),

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(c) subsection (4) of section 197 (residence requirement),

(d) subsection (4) of section 209 (availability of arrangements in local area).

(4) In section 198 (mental health treatment requirement), for subsection (2)(a) there is substituted—

"(a) treatment (whether as an in-patient or an out-patient) at such hospital as may be specified in the order, being a hospital within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972, approved by the Department of Health, Social Services and Public Safety for the purposes of paragraph 4(3) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24));".

(5) In section 205 (attendance centre requirement), any reference to an attendance centre has effect as a reference to a day centre, as defined by paragraph 3(6) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24).

(6) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted.

PART 3 GENERAL PROVISIONS: BREACH OR AMENDMENT
10 This Part of this Schedule applies at any time while a suspended sentence order made or amended in accordance with paragraph 1 or 6 is in force in respect of an offender.

11 In this Part of this Schedule—

"home court" means—

(a) if the offender resides in Scotland, or will be residing there at the relevant time, the sheriff court having jurisdiction in the locality in which the offender resides or proposes to reside, and

(b) if he resides in Northern Ireland, or will be residing there at the relevant time, the court of summary jurisdiction acting for the petty sessions district in which he resides or proposes to reside;

"local authority" and "local authority area" are to be read in accordance with paragraph 5;

"original court" means the court in England and Wales which made or last amended the order;

"the relevant officer" means—

(a) where the order specifies a local authority area in Scotland, the local authority officer appointed or assigned under paragraph 2(b), and

(b) where the court specifies a petty sessions district in Northern Ireland, the probation officer appointed or assigned under paragraph 7(b);

"the relevant time" means the time when the order or the amendment to it comes into force.

12

(1) Where this Part of this Schedule applies, Schedule 10 has effect subject to the following modifications.

(2) Any reference to the responsible officer has effect as a reference to the relevant officer.

(3) Any reference to a magistrates' court acting for the petty sessions area concerned has effect as a reference to a magistrates' court acting for the same petty sessions area as the original court; and any reference to a justice of the peace acting for the petty sessions area concerned has effect as a reference to a justice of the peace acting for the same petty sessions area as that court.

(4) Any reference to the appropriate court has effect as a reference to the original court.

(5) In paragraphs 3 and 4, any reference to causing an information to be laid before a justice of the peace has effect—

(a) if the home court is in Scotland, as a reference to providing information to the home court with a view to it issuing a citation, and

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(b) if the home court is in Northern Ireland, as a reference to making a complaint to a justice of the peace in Northern Ireland.

(6) In paragraph 13—

(a) if the home court is in Scotland—

(i) any reference to the petty sessions area concerned has effect as a reference to the local authority area specified in the order, and

(ii) any other reference to a petty sessions area has effect as a reference to a local authority area, and

(b) if the home court is in Northern Ireland—

(i) any reference to the petty sessions area concerned has effect as a reference to the petty sessions district specified in the order, and

(ii) any other reference to a petty sessions area has effect as a reference to a petty sessions district.

(7) Paragraph 21 is omitted.

(8) No court in England and Wales may—

(a) exercise any power in relation to any failure by the offender to comply with any community requirement of the order unless the offender has been required in accordance with paragraph 14(l)(b) or (2)(a) of this Schedule to appear before that court;

(b) exercise any power under Part 3 of Schedule 10 unless the offender has been required in accordance with paragraph 15(2) or 16 of this Schedule to appear before that court.

13

(1) Sub-paragraph (2) applies where it appears to the home court—

(a) if that court is in Scotland, on information from the relevant officer, or

(b) if that court is in Northern Ireland, upon a complaint being made by the relevant officer,

that the offender has failed without reasonable excuse to comply with any of the community requirements of the suspended sentence order.

(2) The home court may—

(a) if it is in Scotland—

(i) issue a citation requiring the offender to appear before it at the time specified in the citation, or

(ii) issue a warrant for the offender's arrest;

(b) if it is in Northern Ireland—

(i) issue a summons requiring the offender to appear before it at the time specified in the summons, or

(ii) issue a warrant for the offender's arrest.

14

(1) The court before which an offender appears or is brought by virtue of paragraph 13 must—

(a) determine whether the offender has failed without reasonable excuse to comply with any of the community requirements of the suspended sentence order, or

(b) require the offender to appear before the original court.

(2) If the home court determines that the offender has failed without reasonable excuse to comply with any of the community requirements of the order—

(a) the home court must require the offender to appear before the original court, and

(b) when the offender appears before the original court, paragraph 7 of Schedule 10 applies as if it had already been proved to the satisfaction of the original court that the offender failed without reasonable excuse to comply with such of the community requirements of the order as may have been determined.

(3) An offender who is required by any of the following community requirements of a suspended sentence order—

(a) a mental health treatment requirement,

(b) a drug rehabilitation requirement, or

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(c) an alcohol treatment requirement,

to submit to treatment for his mental condition, or his dependency on or propensity to misuse drugs or alcohol, is not to be treated for the purposes of sub-paragraph (2) as having failed to comply with that requirement on the ground only that he had refused to undergo any surgical, electrical or other treatment if, in the opinion of the court, his refusal was reasonable having regard to all the circumstances.

(4) The evidence of one witness shall, for the purposes of sub- paragraph (2) above, be sufficient.

(5) Where the home court is in Scotland and the order contains an electronic monitoring requirement, section 245H of the Criminal Procedure (Scotland) Act 1995 (c. 46) (documentary evidence) applies to proceedings under this paragraph as it applies to proceedings under section 245F of that Act (breach of restriction of liberty order).

(6) Where an offender is required by virtue of sub-paragraph (2) to appear before the original court—

(a) the home court must send to the original court a certificate certifying that the offender has failed without reasonable excuse to comply with the requirements of the order in the respect specified, and

(b) such a certificate signed by the clerk of the home court is admissible before the original court as conclusive evidence of the matters specified in it.

15

(1) The home court may exercise any power under Part 3 of Schedule 10 (amendment of suspended sentence order) as if it were the original court, except that the home court may not exercise the power conferred by paragraph 14(4) of that Schedule.

(2) Where paragraph 14(4) of Schedule 10 applies the home court must require the offender to appear before the original court.

(3) Subject to sub-paragraph (4), where the home court proposes to exercise the power conferred by paragraph 14(1) of Schedule 10, otherwise than on the application of the offender, the court—

(a) if it is in Scotland—

(i) must issue a citation requiring the offender to appear before it, and

(ii) if he does not appear in answer to the citation, may issue a warrant for the offender's arrest;

(b) if it is in Northern Ireland—

(i) must issue a summons requiring the offender to appear before it, and

(ii) if he does not appear in answer to the summons, may issue a warrant for the offender's arrest;

and paragraph 19 of Schedule 10 does not apply to the home court.

(4) Sub-paragraph (3) does not apply to an order cancelling any community requirement of a suspended sentence order.

(5) Where the home court is considering amending a suspended sentence order, any reference in Chapter 4 of Part 12 of this Act to a local probation board has effect as a reference to a local authority in Scotland or, as the case may be, the Probation Board for Northern Ireland.

(16) Where by virtue of paragraph 15 any application is made to the home court under Part 3 of Schedule 10, the home court may (instead of dealing with the application) require the offender to appear before the original court.

(17) No court may amend or further amend a suspended sentence order unless it appears to the court that the conditions in paragraph 1 (1)(a) and (b) or, as the case may be, paragraph 6(1)(a) and (b) are satisfied in relation to any requirement to be imposed; but this paragraph does not apply to any amendment by virtue of paragraph 20(2).

(18) The preceding paragraphs of this Schedule have effect in relation to any amendment of a suspended order by any court as they have effect in relation to the amendment of such an order by virtue of paragraph 1(3) or 6(3).

19 On the making of an order amending a suspended sentence order—

(a) the court must provide copies of the amending order to the offender and the relevant officer, and

(b) in the case of an amending order which substitutes a new local authority area or petty sessions district, paragraphs 2 and 3 or, as the case may be, 7 and 8 have effect in relation to the order as they have effect in relation to an order made or amended in accordance with paragraph 1 or 6.

20

(1) This paragraph applies where the home court is satisfied that the offender is residing or proposes to reside in England and Wales.

(2) Subject to sub-paragraphs (3) and (4), the home court may, and on the application of the relevant officer must, amend the suspended sentence order by requiring it to be complied with in England and Wales.

(3) The court may not amend under this paragraph a suspended sentence order which contains requirements which, in the opinion of the court, cannot be complied with in the petty sessions area in which the offender is residing or proposes to reside unless, in accordance with paragraph 14 of Schedule 10 it either—

(a) cancels those requirements, or

(b) substitutes for those requirements other requirements which can be complied with if the offender resides in that area.

(4) The court may not amend under this paragraph any suspended sentence order imposing a programme requirement unless it appears to the court that the accredited programme specified in the requirement is available in the petty sessions area in England and Wales in which the offender is residing or proposes to reside.

(5) The suspended sentence order as amended must specify the petty sessions area in which the offender resides or proposes to reside.

(6) On the making under this paragraph of an order amending a suspended sentence order, the home court must—

(a) provide copies of the amending order to the offender, the relevant officer and the local probation board acting for the new petty sessions area, and

(b) provide the magistrates' court acting for that area with a copy of the amending order and such other documents and information relating to the case as the home court considers likely to be of assistance to a court acting for that area in the exercise of its functions in relation to the order.

(7) Where an order has been amended under this paragraph, the preceding paragraphs of this Schedule shall cease to apply to the order as amended.

PART 4 SUPPLEMENTARY
21 Subsections (1) and (3) of section 245C of the Criminal Procedure (Scotland) Act 1995 (c. 46) (provision of remote monitoring) have effect as if they included a reference to the electronic monitoring of the community requirements of a suspended sentence order made or amended in accordance with paragraph 1 of this Schedule.

22

(1) Section 4 of the Summary Jurisdiction (Process) Act 1881 (c. 24) (which provides, among other things, for service in England and Wales of Scottish citations or warrants) applies to any citation or warrant issued under paragraph 13(2)(a) or 15(3)(a) as it applies to a citation or warrant granted under section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46).

(2) A summons issued by a court in Northern Ireland under paragraph 13(2)(b) or 15(3)(b) may, in such circumstances as may be prescribed by rules of court, be served in England and Wales or Scotland."

On Question, amendment agreed to.

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Clauses 186 to 189 agreed to.
Clause 190 [Unpaid work requirement]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 179B:
Page 112, line 21, leave out "300" and insert "400"
The noble Baroness said: In moving Amendment No. 179B, I should like to speak to Amendment No. 195A. It may assist the Committee if I say that I will not speak to or move Amendment No. 179E, which is grouped with this, nor shall I move the amendments listed below this group—that is, Amendments Nos. 179C and 179D.
In Clause 190(2)(b), the Government increase the maximum number of hours that a court may specify as part of what used to be known, in the old days, as a community service order, now known as a community punishment order. Once the Bill is enacted, it will be known as a community order with unpaid work requirement. When I read the Bill through, one refrain keeps going through my head—pity the poor sentencers who will have to relearn not only the language but the incredibly complex procedure that will have to be followed. At present, the limit is 240 hours, but under the Bill the Government propose to increase that to 300 hours. My amendment, which is of course for the purposes of debate only, simply proposes a figure of 400 hours to ask the Government to clarify why they chose 300. What research and what proof was there that made them alight on that particular maximum rather than any other?
In the White Paper, the Government stated at paragraph 0.18 that they wished community punishment to be,
"a tough and credible alternative to custody".
No doubt the increase in the maximum hours from 240 to 300 is part of that strategy, but it would be helpful to know what the Government took into consideration to reach that decision.
Do the Government anticipate that some offenders will now receive a community rather than custodial sentence because more hours of community work can be ordered? Do we have a different client group, if I may call it that? The alternative is that the 25 per cent increase in the maximum number of hours simply means that those doing community punishment will do 25 per cent more of it. That would of course have no effect on the prison population, though I can see the advantage of that. What are the Government trying to achieve?
Amendment No. 195A relates to the imposition of an attendance centre requirement as part of a community order. Attendance centres, which are of course focused on young offenders, run practical activities such as sport. I have visited such centres and seen the hard work that the people there put in, and try to ensure that the young people put in. They were originally designed to occupy Saturday afternoons for those convicted of football-related offences. That is certainly no longer the case, in that their use has extended well beyond that.
The Bill reproduces the current minimum and maximum number of hours for such orders—namely, 12 and 36. However, in other areas of the Bill, the Government have chosen to increase the time limits available to the courts. My probing amendment asks why the Government did not change these limits? What evidence do they have that shows that the situation is so perfect that they do not wish to tamper with those limits? I beg to move.
Lord Carlile of Berriew: It is important to know that there is a proper reasoned basis for any change in the maximum number of hours. It would be helpful if we could be told how many people have been sentenced to 240 hours community service or community work in the past 12 months. My understanding is that it is a very small proportion of those who have been sentenced to do unpaid work in the community.
There is evidence in some areas that the probation officers and those who run the schemes are very hard put to make schemes suitable for a structured programme of as much as 240 hours. It is pointless, as any probation officer would tell us, simply to have the hours. There needs to be a purpose and structure and a contract. There is in effect always a contract between the sentenced person and those who supervise the work. That means that there must be a theme to the work imposed.
I suspect that it would be difficult to find many areas in England and Wales where it is even possible to set up structured useful schemes with 300 hours work. That is why I would be doubtful about a figure in what I understand to be a probing amendment, rather than a commitment to a particular figure.
Will the Minister tell us what the rational basis is for the figure in the Bill? May we simply include in the Bill that which can be achieved rather than an aspiration that cannot in realistic terms be achieved?
Baroness Stern: The noble Lord, Lord Carlile, set out why 300 hours is a very high figure and why the quality of the experience can be much more effective than quantity. There is also a danger that 300 hours introduces a high possibility of failure, the result of which is to be sent to prison. We may be defeating the object of the clauses and simply increasing the chance of failure. We are also very much increasing the cost of supervision, and we have already discussed the load on the probation service and how that will be increased by these provisions. I therefore endorse the points that have been made.
Baroness Scotland of Asthal: I certainly hear what the noble Lord, Lord Carlile, says about these amendments, and I am going to respond to the probing nature of the noble Baroness's amendments. I also take very much into account the comments of the noble Baroness, Lady Stern. However, it is very important that these alternatives to prison are made credible, that they bite and that they do the job that all of us in this Chamber wish them to do. If they do, they will be a viable alternative to imprisonment. I know that each and every noble Lord who has spoken in this

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short debate feels passionately that we have to find genuine alternatives to prison as that is sometimes better for everyone concerned.
Amendment No. 179B would increase the maximum from 240 to 300 hours. That will bring our legislation into line with the Scottish legislation and, frankly, is necessary to allow for a more punitive order. I know that the noble Lord, Lord Carlile, said that in various areas we are challenged by the nature of the community sentence programmes that we are able to put forward. Of course that was true in the past. However, noble Lords should know that a huge amount of proper effort is being made to engage local communities, non-governmental organisations, voluntary organisations and others to join with the efforts made by the probation service to broaden the sort of activities that could properly be encapsulated within a community order.
Indeed, when one looks at the menu of options that can be encompassed within a community order, one can see the opportunities to craft with the probation service and the other organisations a package of community orders— formerly community service orders—to target different parts of the offender's development. Consequently, it may be possible to structure a package with various different elements— such as N number of weeks doing X, M number of weeks doing Y and so on.
What we wish to do, particularly with the experience of our Scottish brethren, is to give the court sufficient flexibility so that it is tempted to utilise that flexibility if it is appropriate and the programmes are available, rather than jumping straight to imprisonment. Of course imprisonment is there if that is the right solution. However, in order to test that it is the right solution, it must be possible to give the court the discretion to see whether there is a cogent alternative which addresses the offending behaviour and will be a proper punishment and actually works in rehabilitating the offender. That is the purpose. We would very much like the court to have that bracket, so that as we develop more finely honed community order schemes there will be an opportunity to take advantage of them.
Baroness Stern: I revert to the question that the noble Baroness, Lady Anelay, asked about whether any research shows that 300 hours constitutes credibility and teeth. The research with which I am familiar suggests that what gives credibility and teeth is public involvement, how much the public know about it, whether the public can see that what is done is of value and whether they can see that someone has clearly put something of themselves into it and given something back. With respect, that could be achieved in 100 hours or in 50 hours. I am not familiar with any research that suggests that 300 hours is preferable to the 240 that we have lived with for so long.
9.45 p.m.
Lord Hylton: Before the Minister replies, does she recall what I said last night when we discussed the Anti-social Behaviour Bill about remedial work, as it
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were, regarding fly posting, graffiti, fly tipping and so on? Of course I realise that that is not a very high grade of community service work, but perhaps it could be combined with other more constructive forms of work to produce a thoroughly effective order.
Baroness Scotland of Asthal: There is much in what the noble Lord says. The noble Lord should know that together with the other agencies and non-governmental organisations working in this field we are trying to consider the creative opportunities that we have to work together to make available a broader spectrum of community orders. The noble Lord, Lord Hylton, is absolutely right to say that this is a valuable, visible form of recompense to the community. That relates to what the noble Baroness, Lady Stern, said about making such service well targeted, well honed and understandable to the public at large. We want the effectiveness of the sentence to be its judge. We need to improve the effectiveness of such sentences, not just increase their length. The length is not the only criterion.
However, I say to the noble Baroness that the length of the service can be of great significance for offenders who may have exhibited very challenging behaviour. It is useful for a court to be able to impose up to 300 hours of service which a person can carry out undertaking the kind of activities that the noble Lord, Lord Hylton, suggests. That would constitute a visible payment back to the community. Therapeutic interventions that change behaviour would also be useful. I know of no specific research which assesses the difference between 240 and 300 hours of service. I shall certainly check and if such research exists, I shall write to the noble Baroness but I pray in aid the fact that the 300 hours of service is available in Scotland. That enables the court to have flexibility and the longer period obviously carries greater weight.
It will obviously be a matter for the judge dealing with a case to evaluate all the elements that the noble Baroness mentioned, such as the length of a community order and whether it will be effective in achieving the things that he wishes; namely, punish the offender; address the offending behaviour; reduce the likelihood of reoffending and compensate the community in an appropriate way. Latitude is there for the sentencer to utilise if he so wishes and if there are opportunities available for such service in the relevant locality. Work has been done by local criminal justice boards on needs-based assessments to find out what is happening in their local areas and to address it.
Baroness Anelay of St Johns: I thank the Minister for her comments on the research point that I raised and which was echoed by the noble Baroness, Lady Stern. It is tempting for governments to try to find headline figures that make them look as though they are being tough. That happens with governments of all hues. The difficulty is to ensure that one justifies that. That is why I asked about research.
I listened carefully to what the noble Lord, Lord Carlile of Berriew, said with regard to the availability of programmes. When I meted out

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sentences it was very difficult to make provision for anything like 240 hours of service, even if that was appropriate—and it was rarely appropriate. It was difficult to find a programme that was suitable and available. It is not necessarily just the easy answer to say, "Gosh, we'll look more tough if we have 300 hours". I appreciate the Minister's offer to look at how we might be provided with some information and research about the reason why.
I was intrigued by the part of the noble Baroness's explanation in which she said that the provision would bring us in line with Scottish legislation. My goodness! A number of times, I have tabled amendments to ask why we are different from Scotland, and the response from her and other members of the Government has been that one of the joys of devolution is to have differences. Hey presto—the Government accept that sometimes we have to be the same. She will find that I table a few more amendments of that sort in future.
Baroness Scotland of Asthal: Simply because we do not have to be the same does not mean that that we cannot learn from others. I am very happy to learn
from Scotland from time to time, as my name demonstrates.
Baroness Anelay of St Johns: I am prepared to learn as well from Scots, although they are rather distant relatives. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 190 shall stand part of the Bill?
Viscount Colville of Culross: I have not given the noble Baroness any notice of my question and I apologise, because she may not know the answer. I was looking at relevant orders under Clause 187. Now that we have got to Clause 190, one ingredient of a relevant order is an unpaid work requirement. It is my recollection—I may be completely out of date—that when one imposed a community service order, one could do it only with the consent of the defendant, otherwise one was sentencing him to what constitutes slavery, which is in contravention of our international obligations and the European convention. Will it still be necessary to require consent for unpaid work requirements under the Bill?
Baroness Scotland of Asthal: I think that it is. I shall certainly write in confirmation, particularly if I am wrong, but I believe that unpaid work is something to which the defendant would have to agree, primarily because if one does not get his assent there may be alternatives. I shall definitely have to write once I know the precise position, because I do not know whether no means yes or yes means no, coming from that Box.
Viscount Colville of Culross: I sympathise with the noble Baroness. I would be very glad if she would write to me, and certainly do not put her to the test tonight.
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Clause 190 agreed to.
Clause 191 [Obligations of person subject to unpaid work requirement]:
[Amendment No. 179C not moved.]
Clause 191 agreed to.
Clause 192 [Activity requirement]:
[Amendments Nos. 179D and 179E not moved.]
Baroness Scotland of Asthalmoved Amendment No. 180:
Page 114, leave out line 22.
The noble Baroness said: Amendments Nos. 180 and 195AZA deal with the activity requirement. There has to be a correction. The amendments ensure that community rehabilitation centres can be used for any purpose on a community sentence, not only within the supervision requirement. I beg to move.
On Question, amendment agreed to.
Clause 192, as amended, agreed to.
Clauses 193 to 197 agreed to.
Clause 198 [Mental health treatment requirement]:
Lord Dholakiahad given notice of his intention to move Amendment No. 181:
Page 116, line 37, after "periods)" insert "or under the direction of a specified person having the necessary qualifications or experience"
The noble Lord said: I have some difficulty with this group of amendments. The noble Lord, Lord Adebowale, rang me last night and asked me whether I would move the amendment on his behalf. I said I had no difficulty in doing so. This group of amendments is tied up with a number of amendments in the names of the noble Lord and my noble friend Lady Walmsley. In between are a number of amendments in the name of the noble Baroness, Lady Seccombe.
My difficulty is that this morning the noble Lord, Lord Adebowale, was told that we would not reach this amendment today and that he would have the opportunity to move it on the next occasion in Committee. I am therefore reluctant to move it on his behalf. It would be helpful to know whether we intend to proceed at this stage and to move forward. If we are moving forward, I suggest that I do not move the amendments and that they are dealt with on Report. I should be grateful if I could be informed about the nature of business after ten o'clock.
Lord Grocott: We were hoping to conclude with the group beginning with Amendment No. 195AA. There have been brisk discussions with the usual channels, having moved on more swiftly than we thought. If the group cannot be moved by someone else, the alternative is to bring it back at Report stage.
Lord Dholakia: In that case, I suggest that the amendments are not moved.

[Amendments Nos. 181 to 185 not moved.]

411

Clause 198 agreed to.

Clause 199 [Mental health treatment at place other than that specified in order]:

[Amendments Nos. 186 and 187 not moved.]

Clause 199 agreed to.

Clause 200 [Drug rehabilitation requirement]:

[Amendments Nos. 188 to 190C not moved.]

Clause 200 agreed to.

Clause 201

[Drug rehabilitation requirement: provision for review by court]:

[Amendment No. 191 not moved.]

Clause 201 agreed to.

Clause 202

[Periodic review of drug rehabilitation requirement]:

[Amendments Nos. 192 and 193 not moved.]

Clause 202 agreed to.

Clause 203[Alcohol treatment requirement]:

[Amendment No. 194 not moved.]

Clause 203 agreed to.

[Amendment No. 195 not moved.]

412

Clause 204 agreed to.

Clause 205 [Attendance centre requirement]:

[Amendment No. 195A not moved.]

Clause 205 agreed to.

Clauses 206 to 210 agreed to.

Schedule 11 agreed to.

Clause 211 agreed to.

Clause 212 [Provision of attendance centres]:

Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 195AZA:
Page 125, line 22, leave out "'community" and insert "relevant"
On Question, amendment agreed to.
Clause 212, as amended, agreed to.
Clauses 213 and 214 agreed to.
Lord Grocott: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at one minute past ten o'clock.

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