House of Lords
Death of a Member: Earl Ferrers
The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the death last night of the noble Earl, Lord Ferrers. On behalf of the House, I extend our sincerest condolences to the noble Earl’s family and friends.
Burma: Ethnic Nationalities
(12 years, 1 month ago)
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Baroness Cox
To ask Her Majesty’s Government what is their assessment of recent developments in Burma with regard to the ethnic nationalities, in particular the Rohingya, Kachin and Shan peoples.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, despite the continuing process of political reform taking place in Burma, we are concerned by the reports of serious abuses being committed by government forces and armed ethnic groups against civilians, both in Kachin and across the border in Shan. Inter-communal violence in Rakhine state between the Rohingya and the Rakhine communities has again highlighted our ongoing concerns about the plight of the Rohingya, who are denied citizenship and civil and social rights.
Baroness Cox
My Lords, I thank the Minister for her sympathetic reply. Can she confirm the scale of the suffering caused by the Burmese Government’s policies of violence and oppression to which she has referred? In recent months, many hundreds have been killed, and an estimated 100,000 Kachin, 30,000 Shan and 100,000 Rohingya people have been displaced from their homes to live in appalling conditions in camps or in exile. When I was in Shan state earlier this year one of the Shan leaders said:
“When the lights went on in Rangoon all the world flooded there—and no one stopped to see us in the darkness”.
Will Her Majesty’s Government ensure that, during the forthcoming ministerial visit, the Minister will not only celebrate the lights of relative freedom in Rangoon but also engage with the ethnic peoples trapped in the darkness which still covers much of Burma today?
Baroness Warsi
My Lords, the noble Baroness raises a very important issue. She will accept that huge progress has been made in Burma but that it is important that that progress is felt by all communities in Burma. It is therefore right that the Government raise these concerns at every opportunity. The Foreign Minister and the Prime Minister raised them earlier this year when they visited Burma. They also specifically met with members of the Rohingya community. Indeed, the Prime Minister and the Foreign Secretary raised our specific concerns about the Rohingya community with President Thein Sein. My honourable friend the Minister of State hopes to visit Rakhine state when he visits Burma in December.
Lord Elton
My Lord, we are accustomed to being encouraged to welcome the new dawn of democracy in Burma but can my noble friend say to what extent the elected members of the Burmese Parliament really represent their electors and to what extent they have any control or influence on the actions and policies of the Burmese Government?
Baroness Warsi
My Lords, we welcome and make much of the progress that has been made in Burma, especially in relation to the emerging of democracy. However, it is right that we regularly raise our concerns about matters where we feel that progress is not being appropriately made. Indeed, on her historic visit to the United Kingdom, these matters were raised with Aung San Suu Kyi.
Baroness Kinnock of Holyhead
My Lords, the UN has described the Rohingya people as among the most persecuted minorities in the world. In view of that reality, why have the UK Government been silent and inactive about the callous treatment by Bangladesh of the desperate Rohingya arriving on their shores? Will HMG now press the Bangladeshi Government to offer at least temporary refuge and access to humanitarian aid instead of sending thousands of Rohingya back to sea and to appalling danger?
Baroness Warsi
My Lords, the Government have been neither silent nor inactive on this matter. In fact, I personally raised it with the Foreign Minister, Dipu Moni, only a few weeks ago. We continue to press this matter. The former Secretary of State for the Department for International Development raised it earlier this year in a meeting with the Prime Minister and the Foreign Minister. We have specifically raised the issue of being allowed to deliver aid to the refugee camps where the Rohingya community live.
Baroness Falkner of Margravine
My Lords, can my noble friend tell the House what resources from the stabilisation unit and the Conflict Pool are being used to provide humanitarian assistance to the three countries —Thailand, Burma and, indeed, Bangladesh—to alleviate the suffering of these people and to plan in the longer term for their rehabilitation and settlement within the three countries?
Baroness Warsi
The funds currently being provided are not from the Conflict Pool but from humanitarian assistance provided through DfID. We remain the largest bilateral donor to Burma having committed £187 million which has been allocated over a period of four years until 2015. Our aid predominantly focuses on healthcare, responsible and good governance, and improving livelihoods.
Baroness Uddin
My Lords, I understand that my noble friend the Minister has some sympathy with Bangladesh and its management of the vast numbers of refugees entering that country and no doubt she will continue to pressure Bangladesh for a proper solution and an international response to the refugee crisis. Does she accept that ethnic cleansing is in process? Will she ensure that she and the Government use the special relationship which we seem to have with the United States of America to brief her counterparts regarding the upcoming visit of President Obama to that country and on how the Rohingya people are desperately concerned about the indication that that will make to their plight?
Baroness Warsi
I accept that this is a desperate situation for a desperate community which has suffered now for many years. We raise this matter in many of our bilateral discussions both with the European Union and the US and specifically in discussions with Turkey, which has been playing a huge role in humanitarian assistance. The noble Baroness is right that we must continue to press. While we welcome the progress in Burma, I can absolutely assure the House that we continuously raise this matter.
Lord Avebury
When my noble friend met Dipu Moni, did she tell her frankly that closing the borders against the Rohingya refugees is contrary to customary international law? If so, what reply did she receive from the Foreign Minister?
Baroness Warsi
I had a number of discussions with the Foreign Minister both at the United Nations General Assembly ministerial week in New York and thereafter when she was travelling through London. I specifically raised the concern about the Rohingya community in this country, both in the wider community and among the Bangladeshi diaspora community which is crucial to the Bangladeshi Government. I left her with no illusion about the level of our concern.
Baroness Nye
My Lords, have the Government pressed the Burmese Government to allow the High Commission for Human Rights to set up an office in Burma? It would not only provide technical assistance to the Government and civil society groups during this transitional period but also be able to monitor not only the awful situation of the Rohingya but the dreadful rapes of ethnic Kachin and Shan women by the Burmese army.
Baroness Warsi
I am not sure what representations we have made so I shall write to the noble Baroness with a specific response. However, I can assure her that our ambassador, Mr Andrew Heyn, has been to Rakhine state twice over the past four weeks, including a visit to Kyaukpyu, the area which Human Rights Watch has been monitoring through satellite imaging.
Justice: Indeterminate Sentences
(12 years, 1 month ago)
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Lord Lloyd of Berwick
To ask Her Majesty’s Government what action they plan to take following the decision by the European Court of Human Rights on 18 September in the case of James v UK that the detention of prisoners serving an Indeterminate Sentence for Public Protection beyond their tariff without access to parole is a breach of their rights under Article 5(1) of the European Convention on Human Rights.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are still considering whether to appeal against this decision. The Government have three months from the date of the judgment to submit an application to the Grand Chamber which will effectively be appealing the decision.
Lord Lloyd of Berwick
My Lords, the noble Lord will know the figures because he was kind enough to give them to me last night. There are currently 6,000 people serving IPP sentences, 3,500 of whom have already passed their tariff date and are currently waiting to appear before the Parole Board. Of those 3,500, 2,000 have been waiting for more than two years and 350 have been waiting for more than four years. The court has held in no uncertain terms that their detention in these circumstances is arbitrary and therefore unlawful. Does the noble Lord recognise the scale of this continuing disaster? Does he accept that the Government must do something now to get these wretched people out of prison?
Lord McNally
My Lords, the Government have done something. IPPs were abolished by the LASPO Act, but unwinding the system has to be done very carefully. We are not talking about people who are innocent, but people who have been sentenced for long periods for serious crimes. The IPP system was introduced by the previous Government with, I think, a genuine intent to deal with this problem. We are bringing in a more flexible approach and we have both the Parole Board and NOMS working closely on it. However, it is not simply a matter of throwing open the gates of the prison because in some cases we are dealing with very dangerous people, so we must have public protection in mind when deciding how to deal with them.
Lord Wigley
My Lords, does the Minister accept that there could well be implications arising from the James case for the 3,500 prisoners who have passed their tariff that could lead to them claiming compensation against the Government either under tort or under Section 8 of the 1998 Act? In those circumstances, do the Government accept that they may have to pay compensation?
Lord McNally
One of the reasons why we are studying the judgment is to make sure that we get this right. There are three very early cases which go back to before the reforms brought in by the previous Administration in 2008 in order to bring in more flexibility. It is interesting to note that the court did not find that IPPs themselves were in breach of the Human Rights Act. The weakness that quickly became apparent was the Catch 22 whereby the prisoners were supposed to carry out certain restorative and rehabilitative programmes that were not available. After 2008, the Government brought in some reforms and we have had further discussions with the Parole Board and NOMS to try to speed them up. But I emphasise again that we are not dealing with innocent people. These are people who have been before a court and found guilty of the crimes which have brought forward this programme. We are trying to manage them out of the system as quickly as possible, but with due care for public safety.
Lord Marks of Henley-on-Thames
My Lords, one of the main grounds for the judgment against the United Kingdom was that there are, as my noble friend has said, insufficient facilities for courses to enable prisoners serving IPP sentences to qualify for release. Can the Minister say what extra rehabilitation facilities are now to be put in place to ensure that such prisoners can be released safely and quickly into the community?
Lord McNally
My Lords, one of the things that we have been discussing with both NOMS and the Parole Board is moving away from a system of box-ticking specific narrow training programmes to a more flexible judgment about whether a particular prisoner is suitable for release. Giving both NOMS and the Parole Board greater flexibility in treating, assessing and managing these prisoners will enable the Parole Board to make a balanced judgment, at the right time, about whether these prisoners should be released.
Lord Dubs
My Lords, does the Minister agree that when these sentences were first brought in, nobody expected that they would apply to more than a very small number of exceptional cases? Since then, they have been used on a wide scale. Does that not cast doubt on the propriety of keeping these people in jail beyond the sentences they would otherwise have had?
Lord McNally
Whether there was a misjudgment or not when IPPs were brought in, the fact is that we have reached the figure that the noble and learned Lord quoted of 6,000, which is far more than was anticipated by the initiators of the Bill. However, we now have to go through a proper process of assessing whether these prisoners, who have been sentenced for serious crimes, are fit for release, always keeping in mind public safety as well as the progress they have made. We have taken on board the fact that, as it was, the system was too rigid and too tick-box and we have given it greater flexibility. However, we have to manage release into the community; we cannot just open the prison doors.
Lord Faulks
My Lords, the decision in the James case was another reversal by the European court of decisions about our domestic legislation reached by the Court of Appeal and the House of Lords. Does the Minister agree that, despite the Brighton declaration, there seems to be very little sign of the European court affording us the margin of appreciation that it is supposed to do? In the light of this case, and another recent case that would have attracted the House’s attention, is it not time to consider cutting the links with Strasbourg?
Lord McNally
I would very much regret that. We get enormous benefits from being part of a wider regime of human rights. However, I am equally proud of the reforms that were brought through by the Brighton declaration. I would also say that we have not exhausted the Strasbourg system with this case and are considering whether to appeal. As I reminded the noble and learned Lord, the actual judgment was a very narrow one that did not disown IPPs or say that they breached the Human Rights Act.
Schools: Parenthood Education
(12 years, 1 month ago)
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Lord Northbourne
To ask Her Majesty’s Government what steps they are taking to ensure that secondary school children learn about responsibilities of parenthood.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, secondary school pupils can learn about the responsibilities of parenthood in non-statutory personal, social, health and economic education. Schools have the flexibility to include the teaching of parenting skills as part of PSHE education, based on local circumstances and the needs of their pupils. A review of PSHE education is looking at how to support schools to improve the quality of PSHE teaching.
Lord Northbourne
I am most grateful to the noble Lord for that Answer. However, is the Minister aware—I am sure he is—that Ofsted’s recent reports show that in many, if not most, secondary schools, PSHE is taught, if at all, by teachers with little interest and no training in the subject? Will the Government take action to ensure that the nation’s secondary schools do more to warn young people about the significant and often onerous responsibilities attached to becoming a teenage parent?
Lord Hill of Oareford
My Lords, that same Ofsted subject survey in 2010 showed that about three-quarters of PSHE provided by schools was good or outstanding.
Lord Hill of Oareford
I take the noble Lord’s underlying point and the importance of that. Those are the issues that the review is looking into, in terms of the content of what is taught, the quality of the teaching and the support that goes to teachers.
Lord Howe of Aberavon
My Lords, would my noble friend agree that the objective in the mind of the noble Lord, Lord Northbourne, is even more likely to be fulfilled if school governing bodies included at least some members who are parents of pupils in the school?
Lord Hill of Oareford
I think that the contribution that parents make to school governing bodies is varied. The connection between parents and schools is an important one, but that goes beyond the direct parental role and into the whole provision of education.
Baroness Hughes of Stretford
My Lords, the latest figures for teenage pregnancy rates—that is, for the year 2010—were the lowest for 40 years. That was driven by the Labour Government’s strategy centrally, delivered locally by teenage pregnancy co-ordinators. However, the coalition Government have disbanded the very small teenage pregnancy unit in the Minister’s department, which led on that. A third of the teenage pregnancy co-ordinators have been cut, many in high-risk areas. Do the Government have any concerns about losing the considerable and very difficult progress made in turning this intractable and historic situation around? What action are they taking to ensure that the downward trend in teenage conceptions continues, including, but not exclusively, the provision of sex and relationship education in schools?
Lord Hill of Oareford
The noble Baroness is right that the trend has been falling. As she says, the figure is at the lowest level since 1969. That is very welcome and I recognise that it is obviously in part down to the work of the previous Government. It is obviously important that the work delivered through PSHE and sex and relationship education is carried forward. That is something we are reviewing as part of that broader review to which I have already referred. Also, on the delivery of these services, and the progress that has been made on bringing down teenage pregnancy rates by local authorities, the Government think that the local authority is the lead on this. There is a quite a variation between different local authorities across the country but I am certainly in agreement with the noble Baroness that we need to make sure that that work continues.
Baroness Walmsley
My Lords, will my noble friend look at the work being done by David Lammy MP with teenage fathers from the Afro-Caribbean community, with a view to learning whatever lessons are appropriate from that work? Is this not an area where we ought to be able to work cross-party?
Lord Hill of Oareford
I agree. I would be keen to know more about the work that Mr Lammy is taking forward.
The Lord Bishop of Ripon and Leeds
My Lords, will the Government encourage the teaching of financial literacy as an important part of parenting, and in particular stress that while child benefit is of immense value to those with children, it would be ludicrous to suppose that having children to obtain that benefit made any financial let alone moral sense?
Lord Hill of Oareford
I agree very much with the right reverend Prelate on his second point. On his first point, financial education is important. As he will know, it is delivered as one of the strands of PSHE education. Also, as part of trying to improve financial literacy, the Government could do work on things such as basic maths. There is a correlation: in well run schools, thriving pupils who have ambition and aspiration are less likely to get into the kind of difficulty that we have been talking about. I very much agree with the right reverend Prelate.
The Earl of Listowel
My Lords, does the Minister share my concern that many of our schoolchildren will not experience stable and enduring relationships at home and that they may see many adults pass through their lives? If he does, is it not therefore important to ensure that schools can model for children what an enduring and reliable relationship is? Teachers can be equipped to do that through good training in child development, consultation such as that offered by the charity Place2Be and others, and the importance given to vertical tutor groups in secondary schools. These all support children’s ability to know about enduring and reliable relationships and be better parents themselves. I hope the Minister will agree.
Lord Hill of Oareford
I very much agree with the noble Earl about the importance of trying to help children to understand the importance of stability and stable relationships. I take his point that unfortunately too many children suffer from transient relationships at home. I know that many schools do extraordinarily good work to give children more order, discipline, shape and structure, which helps to replicate some of those things that, sadly, they do not get from their home life.
Nigeria: Violence
(12 years, 1 month ago)
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Baroness Berridge
To ask Her Majesty’s Government what is their assessment of the current situation in Northern Nigeria in the light of ongoing incidents of violence in Kaduna and Maiduguri.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, we have strongly condemned the recent violence in northern Nigeria, including that perpetuated by the extremists known as Boko Haram, which has afflicted all communities in Nigeria. We are also deeply concerned about the allegations of human rights abuses being perpetuated by members of the Nigerian security services. The British Government are working with the Nigerian Government and international partners to tackle the situation.
Baroness Berridge
I thank my noble friend for such a comprehensive answer. The deaths in northern Nigeria are not just a tragedy for Nigeria but could be a cause of regional instability. Will my noble friend please outline when these issues were last raised directly with President Goodluck Jonathan, and, if she has not done so already, will she host a round-table meeting to talk about our Government’s work on this issue with representatives of the diaspora within the UK, for whom this is a key concern? It is often the relatives of British citizens who are dying in northern Nigeria.
Baroness Warsi
I can tell my noble friend that the Prime Minister raised these matters when he met President Jonathan in February this year. The UK has a strong relationship with Nigeria on counterterrorism policy, focusing especially on extremism. Just over a week ago, our high commissioner in Abuja met senior officials at the Nigerian Ministry of Foreign Affairs and discussed the specific violence that we saw recently in northern Nigeria, including the most recent attack in Kaduna city. Senior officials met on 25 October to discuss the ongoing conflict.
Lord Boateng
My Lords, religious freedom is a human right and one that, I fear, is abused in relation to Christians the world over. We hear a great deal about Islamophobia; we hear much less about Christianophobia. The noble Baroness made an extremely successful visit recently to Geneva to address the UN Human Rights Council. Will she raise the issue of the persecution of Christians the world over at that council?
Baroness Warsi
The noble Lord raises an important issue. He will be aware that human rights is part of my portfolio and freedom of religion is a big part of that. It is something that I intend to put a huge amount of focus on, especially discrimination towards religious communities around the world. Specifically in relation to Nigeria, it is important to remember that Boko Haram comes out of a group known as JAS. That group, including Boko Haram, has targeted Muslims as well as Christians.
The Lord Bishop of Durham
I thank noble Lords. I was in Kaduna less than a month ago. Will the Minister confirm what actions are being taken to support religious leaders, such as Bishop Fearon in Kaduna and the Sultan of Sokoto, and leaders from both communities in their work? Do they have access to funds provided through DfID in the major programme of conflict management and mitigation that is going on at the moment?
Baroness Warsi
I cannot answer the specific point in relation to the individuals that the right reverend Prelate refers to, but I can say that we are funding a huge amount of work through DfID on conflict resolution, and specifically trying to create the right forums for interfaith discussions, including “Enduring Peace in Jos: Arresting the Cycle of Violent Conflict”. We are also involved in a programme to train youth peace ambassadors from both the Christian and Muslim communities. We are providing £800,000 over three years for work towards creating spaces where the different communities can come together to discuss some of these matters. We have also established the Nigeria stability and reconciliation programme, which specifically aims to address the grievances that can lead to extremism and terrorism.
Lord Triesman
My Lords, north-south relations in Nigeria are often very complex and can seldom be accurately described in simplistic terms as merely religious or tribal divisions—as the Minister has said, problems arise on both sides. Boko Haram’s objective is plainly contrary to any kind of modern view of democracy, freedom of belief or social inclusion—or indeed to the objectives of the Harare principles. What role might the Commonwealth have in assisting Nigeria to develop as a modern and inclusive country? Should we not encourage a Commonwealth Secretariat assessment, since that will be seen to be far less colonial and far more inclusive in global terms?
Baroness Warsi
The noble Lord is right that the conflict in Nigeria, which spans many decades, has many facets to it, including a religious facet and many ethnic tensions. His is an interesting idea in relation to the Commonwealth’s role. He will be aware that we already have discussions with both the African Union and the European Union in relation to joint work, but it is a matter that I will take back.
Lord Chidgey
Does my noble friend agree with the Bishop of Sokoto, Matthew Hassan Kukah, that the crisis in the north should not be seen as Christian against Muslim or north against south, but more as one of justice and fairness, which calls for a modern, quality education to be provided for girls as well as boys in the north and, most of all, sweeping reform to a demoralised and corrupt police force where absenteeism is now running at more than 50%?
Baroness Warsi
The noble Lord raises an important issue and I would add to that the voice of the Sultan of Sokoto, a traditional leader among Nigerian Muslims. He said that this group, Boko Haram, was “an embarrassment to Islam”. It is heartening to hear people such as Dr Aliyu, the Niger state governor and the chair of the Northern Governors’ Forum—again, a Muslim—basically condemning Boko Haram and saying that it did not represent Islam. Nearer here, in the United Kingdom, the Muslim Council of Britain has also come out and condemned it.
Civil Aviation Bill
NHS Commissioning Board: Mandate
(12 years, 1 month ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall now repeat a Statement given in another place earlier today by my right honourable friend the Secretary of State for Health on the subject of the mandate to the NHS Commissioning Board. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a Statement regarding the publication of the Government’s first mandate to the NHS Commissioning Board. The NHS is this country’s most precious creation. We are all immensely proud of the NHS and the people who make it what it is: a service that last year delivered half a million more outpatient appointments, nearly 1 million more A&E attendances and 1.5 million more diagnostic tests than the year that this Government came into office, and is doing so while meeting waiting time targets, reducing hospital-acquired infections and virtually eliminating mixed-sex wards. The essence of the NHS is its values: universal and comprehensive healthcare that is free and based on need and not ability to pay.
Today, I am proud to publish the first ever mandate to the NHS Commissioning Board. From now on, Ministers will set the priorities for the NHS but, for the first time, local doctors and clinical staff will have the operational freedom to implement those priorities using their own judgment as to the best way to improve health outcomes for the people they look after. That independence comes with a responsibility to work with colleagues in local authorities and beyond, and to engage with local communities to create a genuinely integrated system across health and social care that is built around the needs of individual people.
This mandate makes clear my responsibility as Secretary of State for Health to uphold and defend the enduring values that make the NHS part of what it is to be British. It also sets out my priorities for the NHS Commissioning Board over the next two years and beyond, linked closely to the NHS outcomes framework, the latest version of which I am also publishing today.
The priorities set out in the mandate closely reflect the four key priorities that I have identified to Parliament as my own as Health Secretary. Let me take each in turn. My first priority is to reduce avoidable mortality rates for the major killer diseases where, despite increases in life expectancy, our survival rates are still below the European average in too many areas. If our mortality rates were level with the best in Europe, we could save as many as 20,000 lives every year; 20,000 personal tragedies that could be avoided but are not.
It cannot be right that we are below average for cancer survival rates; that for respiratory diseases we are the worst in the EU 15; and that our performance on liver disease is getting worse, not better. So today I call on the NHS Commissioning Board, working with Public Health England, local government, local commissioning groups and others to begin a concerted effort to bring down avoidable mortality rates in this country.
The mandate asks the NHS Commissioning Board to make measurable progress to improve early diagnosis, giving more people quicker access to the right drugs and treatment when they need it; to reduce the wide and unacceptable variation between different parts of the country, both in terms of inequality of health outcomes and variability of performance by NHS trusts; and to support a renewed focus on prevention—working with local authority partners to help people to quit smoking, drink less, eat better and exercise more.
My second priority is to build a health and care system where the quality of a person’s care is valued as highly as the quality of their treatment. When we place ourselves in the hands of others, we should be confident that we will be treated well, with our dignity respected and that this will be the case regardless of our age or mental state, or whether we are in a hospital, a care home or our own home.
For most people, most of the time, this is already the case. But too often it is not. The appalling revelations from places like Mid Staffordshire and Winterbourne View bring home the desperate need for change. So we must go beyond the enforcement of minimum standards. We must raise our game so that the NHS is recognised globally for its commitment to the highest standards of care for all, just as it is recognised for the highest standards of treatment for all.
The mandate asks the NHS Commissioning Board to ensure that local GP-led commissioning groups work with local authorities and others so that vulnerable people, particularly those with dementia, learning disabilities and autism, receive safe, appropriate, high quality care. The mandate also asks the board to improve standards of care during pregnancy and in the early years of children’s lives. This will include offering women the greatest possible choice over how they give birth, giving every woman a named midwife, responsible for them both before and after their birth, and by reducing the incidence and impact of postnatal depression through early diagnosis and better intervention and support.
The mandate asks the board to measure and understand how people really feel about their care through the new “friends and family” test—asking patients whether they would recommend the care that they receive to their friends or family. This test will cover hospital and maternity services in 2013, with other parts of the NHS following soon after.
It also asks the board to drive up standards of care by championing a transparency revolution within the NHS. This will make us the first country in the world to publish comparative information on performance throughout the healthcare system, including between clinical commissioning groups, local councils, providers of care and consultant-led teams. Mental health, which has long been the poor relation, must have parity with physical health. This mandate asks the board to make clear progress in rectifying this, particularly by looking at waiting times and by rolling out the programme of improved access to psychological therapies.
My third priority is to dramatically improve care for the one-third of people in England who live with a long-term condition, such as asthma, diabetes or epilepsy. As a group, they account for more than half of GP appointments and nearly three-quarters of hospital admissions. This has a huge impact on the individuals concerned, an impact that can be compounded by the way that they are dealt with by the NHS. We need to do much better. So this mandate asks the NHS Commissioning Board to help those who rely heavily on the NHS by harnessing the power of the revolution in technology. Labour’s NHS IT projects failed, wasting billions, but we must not allow that failure to blind us to how technology can transform treatment and care throughout the system.
So today I am asking the board to make sure that by 2015 all patients in England will be able to access their GP records online. In at least parts of the country, those records will be integrated with other medical records across the health and social care system, so that a single record can follow a patient seamlessly from ambulance to hospital to GP clinic and to their own home.
By 2015 everyone will be able to book GP appointments and order repeat prescriptions online, as well as contact their GP by e-mail. Significant progress will also have been made towards ensuring that 3 million people with long-term conditions benefit from telehealth and telecare by 2017. With respect to people with long-term conditions, the mandate also asks the NHS Commissioning Board to ensure that by 2015 more people have the knowledge and skills to control their own care and that carers have the information and advice they need about the support available to them, including respite care.
My final priority is care for older people, specifically for those with dementia. Already one in three people over the age of 65 live with dementia, but, shockingly, even though the right medicines can make a huge difference to people’s quality of life and those of their families, we diagnose fewer than half of those with the condition. I want the diagnosis, treatment and care for people with dementia to be world-leading, so the mandate asks the NHS Commissioning Board to make significant progress in improving dementia diagnosis rates and to ensure that the best treatment and care are available to everyone wherever they live. We also want to see progress in ensuring that hospitals and, indeed, all NHS organisations make significant progress in becoming dementia-aware and dementia-friendly environments.
The mandate also covers other important areas of NHS performance, including research, partnership working, the Armed Forces covenant, and better health services for those in prison, especially at the point when people are integrated back into the community.
The mandate also sets the NHS Commissioning Board’s annual revenue budget. For 2013-14, this is £95.6 billion, with a capital budget of £200 million. An important objective for the board is therefore to ensure good financial management, as well as unprecedented and sustainable improvements in value for money across the NHS.
We are the first country in the world to set out our ambitions for our health service in a short, concise document centred around patients. Its clarity and brevity will help to bring accountability, transparency and stability to the NHS. The previous Government sent endless instructions to SHAs and PCTs, constantly bombarding them with new targets, new directions and new priorities and drowning the NHS in red tape and bureaucracy. In stark contrast, this mandate is just 28 pages long. It signals the end of top-down political micro-management of the NHS, an approach that failed to get the best treatment for patients and the best value for taxpayers.
This mandate demands much closer integration between secondary and primary care and between the NHS and social care. It requires a new style of leadership from the NHS, with local doctors and nurses free to innovate in the way in which they commission care. I look to the board to develop their leadership skills so that they can discharge their duties in the best interests of their patients. The mandate will make it easier for Ministers to hold the health and care system to account, and it will make it easier for Parliament to hold Ministers to account for their stewardship of the system. This is a historic step for the NHS, and I commend this Statement to the House”.
My Lords, that concludes this Statement.
Lord Hunt of Kings Heath
My Lords, first, I thank the Minister for repeating the Statement and for the briefing that he gave me earlier today. I also refer noble Lords to my interest in health, contained in the register.
This morning I had the great privilege of hosting a ministerial visit to Birmingham Heartlands Hospital by the Minister’s honourable friend, Mr Norman Lamb. He came to see the Birmingham and Solihull Rapid Assessment, Interface and Discharge service—RAID—which essentially is a partnership that has placed mental health professionals inside the emergency department of my local hospital to give people a holistic physical and mental health response. In that context, I very much welcome the emphasis in the mandate on mental health priority and the promise to implement the amendment that we tabled in your Lordships’ House in relation to parity of esteem between physical and mental health.
But—and there is a but—the problem at the moment in the National Health Service is that mental health has been first in line for reductions in expenditure. Is the Minister in a position to confirm that mental health spending was cut in real terms last year, and to say what the Government intend to do to reverse that? Will he also confirm, in relation to mental health, that he is determined to see that primary care plays its role and that we will see more mental health specialists working in teams with GPs, nurses and carers? Will personal health budgets be extended to enable patients with mental health issues to select the best combination of services and treatments for themselves? Furthermore, does the Minister agree that good mental health does not start in the hospital or treatment room but in our workplaces, schools and communities? For example, poor mental health in the workplace costs the UK an estimated £26 billion a year. Does the Minister accept that this requires a cross-government approach, and is he as disappointed as I am at the news of the apparent demise of the Cabinet Sub-Committee on Public Health—due, it is said, to a lack of interest from other government departments?
The mandate contains a number of welcome references to helping to improve people’s health. I would be grateful if the Minister could tell me what the Government are doing to reawaken interest across Whitehall. The whole architecture of the NHS that the Minister brought to your Lordships’ House in the Health and Social Care Act was about the Department of Health passing over day-to-day concerns about the NHS to the national Commissioning Board, giving itself time to work on wider public health issues—and, I have always assumed, to seek to influence the rest of Whitehall. Would he accept that the demise of this Cabinet sub-committee is a very disappointing signal?
I have three fundamental questions concerning the mandate, which relate to funding, the measurement of performance and the role of Ministers. As the Minister has intimated, this is a multiyear document, setting objectives for the period April 2013 to March 2015 but subject to revision at the end of each year—or, in other special circumstances, including a general election. We can only hope that we might be coming back to this mandate sooner than the Government perhaps would wish. I have noted that the mandate has been restructured around the outcomes framework, which is to be welcomed, and that some of the specific levels of ambition that were placed in the consultation on the mandate have now been replaced by what the Minister described as stretched levels of ambition. Has the mandate been costed out? I could not help but contrast the optimistic claims of Ministers with the everyday financial realities of life in the NHS. Is the mandate a realistic document about what the public can expect to happen or is it little more than a Christmas shopping list which is unlikely to be realised in full?
The noble Earl will have seen the RCN’s warning today of thousands of job losses among clinical staff. That appears to be the reality of life in the NHS. Emergency services are under pressure and a toxic mix of reorganisation and real-terms cuts risks plunging the NHS into a very difficult situation. There has been a great deal of publicity and concern about the decision of the BBC in relation to the retirement package, as it were, of the former director-general. However, the Government stand accused of wasting a full £1 billion on redundancy packages for health service managers as a result of the recent reforms. That money could have been spent on patient care.
I note that most of the time the Statement seeks to create a consensus but every so often it descends into political rhetoric, which I regret. I was pained to hear the noble Earl say that the previous Government sent endless instructions to the health service and constantly bombarded it with new targets. However, those targets, which focused on reducing waiting times and improving clinical performance, were absolutely pivotal to improving the performance of the National Health Service. We will, of course, always find ways to make further improvements, but there is no doubt whatever that between 1997 and 2010 the NHS was vastly improved.
The new architecture which the Government have set in place feels very bureaucratic to those working in the National Health Service. Instead of clear departmental direction, three major agencies have been created, which often row in different directions. Monitor, the economic regulator, has conflicting roles. It is unsure about how to incentivise integration but is stuck with the mantra of the market and enforced competition. The CQC lacks confidence and credibility and awaits the Francis verdict, although the appointment of the new chief executive, David Behan, is a very good step forward. The national Commissioning Board is all-powerful and talks the talk of devolution but I am afraid to report that it displays some centralist tendencies. Indeed, I have heard that “aggressive commissioning” is the buzzword around the national Commissioning Board. I certainly hope that it can do better than that. I do not think that the frail elderly, who comprise the patient group that makes the most demands on the health service, need aggressive commissioning. They need an integrationist approach whereby the architecture and the key national players—the department, Monitor, the CQC and the NCB—work together to get the conditions right for an integrationist approach.
I urge the national Commissioning Board to focus its attention on primary care, community care and adult social care. Does the noble Earl agree with that? We are seeing in the health service the development of seven-day working in acute hospitals. I welcome the mandate’s emphasis on mental health playing its full part, but it requires the same commitment from GPs, community services and adult social services. The contrast between what is happening in some parts of the NHS with the desperate struggle that local authorities are facing to keep council social care services for adults going could not be wider. Indeed, millions of people face higher care charges as councils are forced to put up the cost of meals on wheels and other services. The response from local government to the need for a seven-day service is extremely patchy and very worrying.
I would like also to refer to the comment made in the Statement about the performance of the NHS in relation to certain clinical services. If the Government are so concerned, why on earth are they proceeding with cuts to the cancer, heart and stroke networks? Surely that needs to be reconsidered.
Turning to the performance of the national Commissioning Board and how it is to be measured, the mandate contains a long list of improvement areas —as they are called—and says that it is the Government’s ambition,
“for England to become one of the most successful countries in Europe at preventing premature deaths, and our objective for the NHS Commissioning Board is to make measurable progress towards this outcome by 2016”.
What do the Government mean by “measurable progress”? Are there going to be some numbers or is this going to be a vague promise by the national Commissioning Board? What will happen if the national Commissioning Board does not meet those objectives and ambitions? Will there be any sanction placed on it?
The noble Earl repeated the mantra that the NHS is being liberated from day-to-day, top-down interference in its operational management. The mandate seems to have issued an uncosted wish list and is hoping to contract out responsibility to the national Commissioning Board, but it does not absolve Ministers of their accountability for giving Parliament as much information as possible and, ultimately, accepting their responsibility to Parliament for the performance of this great public service.
Earl Howe
My Lords, I am grateful to the noble Lord for the welcome he was able to give to aspects of the mandate, not least in the area of mental health where, as he will have noted, the original version of the mandate has been considerably strengthened in a number of places to emphasise the parity of mental health with physical health in a number of ways. I am glad he thinks that that is a positive step and I agree that it is a necessary one if we are to achieve the higher standards in the care of those with mental health problems which we all want to see.
The noble Lord also welcomed the focus on outcomes and the fact that the mandate has been restructured around the five domains of the outcomes framework. We thought it was logical and sensible to hold the board to account for objectives which related directly to indicators within the outcomes framework. That has been warmly welcomed by the board itself.
The noble Lord asked a number of specific questions. First, on personal budgets in mental health, I can tell him that, subject to the results of the current trials in personal health budgets which we expect to announce very soon, we expect that mental health will be one of the areas where patients will be able to exercise direct control over the services they receive. As the noble Lord well knows, patient empowerment in the area of mental health is, in itself, therapeutic. If we can encourage that, we should.
The noble Lord also mentioned mental health in the workplace and I completely agree with what he said about that. I recently mentioned, in your Lordships’ House, the network which Dame Carol Black and I chair in the department looking at health in the workplace and the pledges that have been devised and which businesses can sign up to. One of those pledges indeed relates to mental health. We hope that we can recruit willing enthusiasts from among the business community to sign up to as many of those pledges as they can.
The noble Lord referred to public health, and I agree with him that it is not a matter simply for the department; all government departments need to engage in it. I should say to him that the creation of Public Health England will provide an immediate opportunity for that body to work with other government departments, but also much more widely to ensure that we genuinely have a joined-up approach to public health objectives. He will know that the public health outcomes framework, which has been drawn up to align itself as far as possible with the NHS outcomes framework, will be a powerful driver for improvement across the field of public health.
The noble Lord characterised the mandate as an uncosted wish list. I can tell him that it has been costed, and the NHS Commissioning Board itself was fully consulted before the mandate was drawn up, because it would clearly not be in anyone’s interests to task the board with delivering the unachievable. The board is aware that it will receive real-terms increases in the budget for the NHS—increases the NHS has received during every year of this Parliament. He referred to cuts. I want to emphasise to him that while we are aware that there are significant constraints at a local level, particularly at provider level, the overall budget to the NHS is not being cut; it is increasing, year by year.
The redundancy payments that unfortunately have been necessary of course represent ongoing annual savings from now on. It is always painful to make people redundant, but we deemed that it was absolutely necessary if we were to retain a sustainable health service. Every pound that we save will go straight back into front-line care.
The noble Lord mentioned the performance of the previous Government, and I am the first to pay tribute to the improvement in the health service that took place under that Administration—not least in waiting times. It is why we have explicitly said in the mandate that waiting times continue to matter. They matter to patients, they are clinically a valid measure of patient experience, and we have no intention of abandoning that metric.
The noble Lord also spoke about enforced competition. I should correct him on that because, as he will know from our debates on the Health and Social Care Bill, we believe that competition can sometimes be a tool for commissioners. We do not believe that it should be shoved down anybody’s throat. Competition, as Sir David Nicholson pointed out the other day, should be regarded as a rifle shot, rather than a carpet-bombing exercise. It should be used only where it is in the interests of patients, which is why the first duty of Monitor, the economic regulator of the health service, is to serve the interests of patients.
The noble Lord referred to partnership working, and I was absolutely in agreement with him that there needs to be partnership, not only at a local level between GPs, social care, secondary care providers, but at the level of the arm’s-length bodies. Chapter 7.3 of the mandate covers the latter aspect comprehensively. However, in Chapter 2, we also place great stress on integration of services, which was the subject of a number of debates in your Lordships’ House during the passage of the Bill. Primary care is covered in Chapter 9.2, which is one of the main areas that the board will be commissioning.
The noble Lord asked me about networks, which we debated a few days ago. They can take various forms. The strategic clinical networks, about which he asked me in his Oral Question the other day, embrace, as he knows, four major clinical areas where we believe that considerable change is required if we are to see services improved to the extent that they should be. However, that does not preclude other networks forming at a local level—for example, at provider level—to ensure that services are joined up. I am sure that we shall encourage those networks, wherever they are appropriate, but we are not mandating them.
The noble Lord asked me about measurable progress. Today, we are publishing an updated version of the NHS outcomes framework, which includes an appendix that sets out the detailed definitions for the majority of indicators. We will have robust metrics which we shall be able to use to measure health outcomes. Over the past few months, the Health and Social Care Information Centre has been publishing many of the data as they have become available. Publishing data for the indicators will, in itself, show whether outcomes are improving. In order to interpret progress, we will work with the NHS Commissioning Board and experts to develop a methodology for measuring progress. There is time enough to do that and I will happily keep the noble Lord informed as that work rolls forward.
Baroness Northover
My Lords, perhaps I may remind noble Lords that contributions and questions should be brief so that as many noble Lords as possible can participate. I also remind noble Lords that contributions will come from around the House so Members other than those in the Labour Party need to speak now. Maybe we could hear from the Cross Benches.
Lord Walton of Detchant
My Lords, I shall speak briefly, not least because before I knew about this Statement, I made an appointment to meet some major professional visitors at four o’clock this afternoon. I make my apologies to the noble Earl.
The general terms of this mandate are to be greatly welcomed. Its structure is attractive and its relationship to the future of the outcomes framework is very welcome indeed. I welcome the concentration on long-term conditions and their management, although it is important to mention that, whereas diabetes, hypertension and mental health are highlighted in the document, there are many other long-term conditions that need special attention, many of them neurological, such as Parkinson’s disease, multiple sclerosis, neuro-muscular diseases, and so on. I also welcome the emphasis on innovation.
My one major question relates to the very paragraph to which the noble Lord referred. Paragraph 9.2 states:
“The NHS Commissioning Board will be directly commissioning NHS services provided by GPs, dentists, community pharmacists and community opticians; specialised care; health services for people in custody; and military health”.
There are the two words, “specialised care”. We have had discussions about this before and my understanding is that the NHS Commissioning Board will commission directly highly specialised services but more general specialised services will be commissioned by the clinical commissioning groups. Indeed, paragraph 9.3 states:
“The Department will hold the Board to account for the quality of its direct commissioning, and how well it is working with clinical commissioners … An objective is to ensure that, whether NHS care is commissioned nationally by the Board or locally by clinical commissioning groups, the results—the quality and value of the services—should be measured”.
Therefore, is there not an incompatibility between these two paragraphs, one saying that all care will be commissioned by the NHS Commissioning Board, and the next paragraph modifying and qualifying that? I think that is a matter for clarification as the mandate goes forward.
Earl Howe
My Lords, I am grateful to the noble Lord for his welcome to the overall structure of the mandate and its content. I do not believe that there is an inconsistency between those two paragraphs. We have had a number of debates about specialised healthcare. I can confirm to him what I have said in the past: it will be the responsibility of the NHS Commissioning Board to commission services in relation to highly specialised conditions and, on top of that, those specialised conditions that are currently commissioned by the regional specialised commissioning groups. It is services for not only very rare conditions but slightly less rare conditions that the board will commission. That is a positive step that has been welcomed by the specialised healthcare community. We will spell out in regulations exactly what conditions are specialised conditions.
Paragraph 9.3 states that the way in which the board is held to account should be directly analogous to the way in which other commissioners in the health service are held to account. In other words, the board cannot expect not to be held to account by the department in a similar fashion. I hope that with that clarification, the noble Lord will be reassured.
Baroness Jolly
My Lords, I note that the mandate no longer sets quantifiable levels of ambition. The Minister explained how progress might be measured. There will be overarching indicators and improvement areas that will all match or mirror the five parts of the outcomes framework. Will my noble friend the Minister explain to the House how frequently progress is likely to be reported, and how it will be monitored by parliamentarians?
Earl Howe
I am grateful to my noble friend. The board will have to publish its progress against the objectives in the mandate. The Government will publish an annual assessment of its progress. We have set an objective for the board to demonstrate progress against all the indicators in the NHS outcomes framework. We will use a range of evidence to assess the board’s performance, including asking CCGs and other stakeholders for their feedback. This will be important, because it will provide the board and everybody else with a much more rounded view of how the health service is doing. The information will be publicly available, so everyone will be able to judge for themselves whether the NHS has achieved these stretching goals. In year, Ministers will hold the board to account. In particular, the Secretary of State will hold formal accountability meetings with the chair of the board every two months. Minutes of those meetings will be published. The meetings will be an opportunity to review performance and discuss issues as they arise, and as is right and proper.
Lord Warner
My Lords, there is much to welcome in this mandate, especially the points that the Minister made about mental health. Perhaps I may gently remind him that he and his Government will be able to send this patient information whizzing round the system and the country only as a result of the much maligned national spine that the previous Government put in place, along with a central contract. It is worth bearing in mind a little history.
The Minister said that this had been a masterly and costed exercise and that the NHS Commissioning Board had said that it could deliver the mandate within the finances available. Will he confirm that this means that the NHS Commissioning Board’s chief executive has accepted that he will have to deliver, through his new role, £20 billion in savings over four years—the so-called Nicholson challenge? We would like to know whether the Nicholson challenge includes that money.
Finally, I will follow up the point about specialist and specialised services made by the noble Lord, Lord Walton. The Minister may recall that in July the new president of the Academy of Medical Royal Colleges make the powerful point that we have far too many 24/7 acute centres. Will it be part of the Commissioning Board’s responsibility, with the money it uses to directly commission specialist and specialised services, to start to make progress on Professor Terence Stephenson’s suggestions that we need fewer specialised centres of a larger size?
Earl Howe
My Lords, I pay tribute to the noble Lord’s role in the NHS IT programme. He is right: we have a great deal to be thankful for in much of the IT that was rolled out under the previous Administration. It failed at a local level rather than a national level—it perhaps failed for honourable reasons—but that is history now and we need to move forward and find other ways of delivering the benefits which his Government identified and we are determined should be delivered at provider and commissioning levels. That is why there is emphasis in the mandate, in chapter 2.6, around technology because it is important that we have inter-operative systems at every level.
The noble Lord asked about the costing of the mandate and, in particular, the quality, innovation, productivity and prevention programme—or the Nicholson challenge as it is sometimes known. We refer to that on at least two occasions in the mandate, at chapter 6.4 and chapter 8.1. The NHS Commissioning Board has confirmed that it will continue to implement the Nicholson challenge and we will work with it to ensure that that happens.
As regards service configuration, the noble Lord will note that in chapter 3.4 we draw attention to that issue and, in particular, to the four tests that need to be met before service configuration can be considered acceptable. Those four tests must be determined locally and there must be a clinical buy-in to any reconfiguration of services. That is one of the most important features of the framework surrounding that area. We may well see fewer centres for a number of conditions but, if we do, it will not be through a top-down edict but because doctors and other health professionals think that it is the right thing to do for patients.
Lord Hunt of Kings Heath
My Lords, there was an agreement between the usual channels that it is the Government Benches, then the Opposition and then the Cross Benches. The noble Baroness is seeking to reinterpret what has already been agreed.
Baroness Cumberlege
My Lords, I, too, congratulate the Government on the mandate. When we were debating the Bill, I requested that the mandate should be short, precise and well-focused, and it is all of those things. I particularly welcome the focus on the importance given to improving standards in maternity services. The mother’s experience and the start of life are very important and have a huge impact on the long-term well-being of children.
I wish to link the outcomes framework with the mandate. On the outcomes framework, at page 11 under “Trauma” we are told that this is an area for further improvement. It states:
“As part of the development of the placeholder ...‘improving recovery from injuries and trauma’ the indicator has now been defined as ‘Proportion of people who recover from major trauma’”.
That links very much with what my noble friend was saying earlier about expertise. The point I want to make on the mandate is that we are told that the objectives in the mandate can be realised only through local empowerment. The board’s role in the new system will require it to consider how best to balance different ways of enabling local and national delivery. These may include the duties and capabilities for engaging and mobilising patients, professionals and communities in the shaping of local services.
My concern is on A&E and the emergency services. With the NHS Commissioning Board having now appointed Tim Kelsey to look at communications, how can we get public leadership to understand that expertise in certain areas is very important for survival? The footballer Fabrice Muamba collapsed on the football field and passed several A&E departments to get to the one that saved his life because the expertise was there. Is there a requirement in the mandate that there should be a mobilising and further education of the community so that it understands what expertise is needed in order to save lives?
Earl Howe
My noble friend makes a series of extremely important points and I agree with everything she said about maternity services. Emergency services will be commissioned at a local level by clinical commissioning groups but that cannot be the end of the story. She rightly implied that paramedics and trauma care doctors require skills in sometimes very sophisticated techniques of maintaining life at the scene of an accident, for example, and hospital procedures. These skills must be maintained and improved. The short answer to her question is quite consciously missing from this mandate. This is the need for Health Education England to work very closely with the board because the Centre for Workforce Intelligence and Health Education England will have to ensure that we have not only the right numbers in the NHS workforce but those with the right skills and the right level of skills. As she rightly said, we also need to educate the public that the health service does not consist of a series of buildings; it consists of a network of services. We will have advanced considerably if the public can understand rather better than they generally do that the continuation and improvement of services matter, rather than bricks and mortar.
Lord Kakkar
My Lords, I declare my interest as Professor of Surgery at University College London Hospitals NHS Foundation Trust. I very much welcome the noble Earl’s indication that the five objectives of the mandate are now clearly linked to the five parts of the outcomes framework. However, successful and meaningful commissioning decisions will critically place intense focus on the development of metrics in the outcomes framework. Local commissioning will be completely meaningless without objective metrics set as part of the commissioning process at a local level and without the ability to measure those outcomes. With specific emphasis on chronic conditions, what progress has been made on integrated care pathway metrics for integrated care both in the community and in the hospital? If there is little progress, when will we ensure that we have integrated care pathway metrics available to ensure that we drive forward meaningful local commissioning decisions?
Earl Howe
The noble Lord has alighted on an extremely important area. We have been very careful in constructing the outcomes framework to make sure that we define deliverable outcome indicators. The NHS Commissioning Board is satisfied that the indicators are realistic but I have to be candid with him. This represents work in progress as the precise way in which the board will demonstrate that it has made progress against each of the indicators has not been defined in every case. I can assure him that it will be. It will be up to the board, however, to construct a system of local accountability to ensure that the clinical commissioning groups are held to account against realistic demonstrable indicators which match those of the NHS outcomes framework, not least in the area of chronic conditions. The patient pathway is work in progress, too, but much of its quality can be measured by reference to the patient experience. That is one of the central domains of the outcomes framework, on which a lot of work has been done. I would be happy to write to him on that.
Baroness Jay of Paddington
My Lords, perhaps I may press the noble Earl a little further on the part about IT in the mandate. My noble friend Lord Warner also referred to it. Would he develop a little the expectation in the mandate about developing the electronic patient record, which I feel is an aspiration rather than a practical reality if it is going to take place within two years? Can he help me by describing the way in which progress can be measured, and how is this to be achieved in a period when the pressure is on local resources and there is a dispersal to local responsibility which earlier he described as being a problem?
Earl Howe
There are several objectives around our wish to see more patients having access to their records, not only to enable them to order repeat prescriptions and make appointments with their GPs online, which many practices already enable, but also to access their own personal health records where they wish to do so. This, too, is a work in progress. Noble Lords do not need me to tell them that there are clear confidentiality issues involved in this area. What we cannot have is a system that is open to breaches of security. However, work is going on with the Royal College of General Practitioners and the British Medical Association on that point. We have said that it is our ambition that everyone should be able to access their GP records online by 2015. That is the ambition and we think that it is achievable. However, once again I would be happy to keep the noble Baroness updated as work continues.
Baroness Williams of Crosby
I thank the noble Earl for the imaginative and humane part he has played in producing this mandate and say that it adds even further to what is already a remarkable record. I want to put two questions to him about the fourth objective in the mandate which in a sense will complement what he has already said about new technology, as well as what the noble Baroness, Lady Jay, has said about it. I want to ask him about two more specifically human aspects that fall under the fourth objective.
The first is the great importance of training health assistants to meet some of the responsibilities of their role in terms of communicating with patients. We are now putting a heavy burden of responsibility on health assistants who, of course, are not fully trained nurses and therefore are not trained in communicating with patients. Secondly, perhaps I may draw his attention to a specific area of what I think is serious failure in the NHS and its relationship with local government, and that is the field of rehabilitation, which is now probably one of the weakest areas in terms of trying to assist patients and give them a good experience of the NHS.
Earl Howe
My noble friend is absolutely right to raise both of those issues. On healthcare assistants, I can confirm that the work by Skills for Health and Skills for Care is proceeding in a very encouraging way. We are still on track to deliver a system that will enable healthcare assistants to become accredited on a voluntary basis to a register, and that is obviously a welcome step in the direction of ensuring that we can upskill the workforce both in secondary care settings and in social care. However, much will still depend on nurses in those settings to supervise healthcare assistants, and we look to the management of hospitals and care homes to ensure that proper supervision is conducted and, indeed, that there is proper training at the bedside and in the care homes of elderly people. Again, this is work in progress, but I am glad to say that the progress is real and encouraging.
On rehabilitation, my noble friend is absolutely right to say that we need to ensure that NHS continuing care and social care recognise the importance of ensuring that patients recover quickly. It is our ambition that the patient experience should be published and a measure of the quality of the service that is being delivered. Over the past two years we have made available considerable additional resources to local authorities and we will continue to do that so as to ensure that their budgets are not put under as much strain as they would otherwise be, and thus enable them to deliver these very important services.
Crime and Courts Bill [HL]
(12 years, 1 month ago)
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Lord Ramsbotham
Lord Ramsbotham
My Lords, I tabled Amendment 1 because I submit that part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution on which the Government are now embarked. Indeed, “punitive” is a pejorative word which is a red herring to achieving that revolutionary purpose. What I am going to say will also cover amendments up to and including Amendment 11A, which are all connected with this part of the Bill.
When I was Chief Inspector of Prisons, I used to remind Home Secretaries that I dealt only with facts, and reported and commented on what I had actually seen, or not seen, during inspections and visits. Anything contrary to those facts that they heard, from officials or anyone else, was fudge; and woe betide them if they tried to make improvements based on fudge, because they would get fudged improvements. My successor described this far more elegantly than I did when she referred to “virtual prisons”, which is how they were described by officials to Ministers.
What I find most disturbing about what is now before us—and indeed what is not now before us such as the content of Amendments 14 and 20, which I hope we will reach before I have to leave for a long-standing engagement—is that so much of it is fudge, including parts of it announced by the Prime Minister in a speech on 22 October. I will list some of those because I hope that noble Lords will join me in being disturbed. There seems to be a supposition that the probation service is not tough enough, because it does not want to be. That is absolute nonsense. The probation service achieves very good results, as we have heard already. It is not that it does not want to do more. It cannot do more because it has not got the resources. In their own impact statement on the Bill, referring to the word “punitive”, which I think is thoroughly unfortunate, the Government said:
“Given a limit on the overall level of resources available for probation services, delivering a clear punitive element to every community order may cause the primarily rehabilitative requirements to be substituted for primarily punitive ones … There is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate of those offenders subject to community orders”.
We are told that it is all about the reoffending rate and about protecting the public by reducing reoffending. Why introduce something that is likely to damage that aim? In other words, the Government should not do it. I will not speak for my noble and learned friend Lord Woolf, who has already mentioned how offensive he found the presumption of giving judges direction about being punitive, when they already knew that that was their purpose in sentencing.
Secondly, in his letter to the noble Lord, Lord Beecham, and others on 7 November, the Minister said that,
“it would not be appropriate for the Government to provide a rigid definition of the circumstances that would qualify as exceptional: this can relate only to the facts of each individual case and is a decision for the court on the evidence before it”.
That is exactly what courts do now. So why do we need this? Why do we need to go chasing down? If Government cannot think of all these exceptions, Heaven knows, we cannot. It does not seem appropriate to include this in legislation.
Finally, in these hard economic times, the question of fines must be related to the ability to pay, as the noble Lord, Lord Touhig, has already said during proceedings on the Bill. Do the Government really think that more could be done to fine more people when they do not have the resources to pay the fines? What will be the result? I do not see that this has been thought through.
The Prime Minister also made two other fudged statements that I challenge in relation to the delivery of this proposal. He said:
“If you’re on a community sentence, you will be supervised”.
Who by and how? A quarter of a million people are currently under probation supervision and we know already that probation officers are extremely stretched in providing the supervision that they have to provide now. If cuts are to be made, we need to know how this supervision is to be carried out. In other words, we need to know the results of the probation consultation which was published to exactly the same list of stakeholders, as the Government said, as the community sentence consultation. If we are being asked to satisfy ourselves and say that we are satisfied with this supervision that the Prime Minister has announced will be available, it stands to reason that we must be able to examine the resources and come to a conclusion as to whether they will be enough, and give our advice based on our experience. Frankly, I find it totally extraordinary that this House should be asked to come to this sort of decision and conclusion without having all the facts before it.
In addition, going on from probation, we are told that payment by results is to be introduced into this process. Indeed, the Prime Minister said:
“By the end of 2015, I want to see payment by results spread right across rehabilitation”.
How on earth is that to happen if, at this present moment, the Secretary of State for Justice has suspended the publication of any data on the one trial at Peterborough, which is not strictly payment by results but social impact bonds, and when there cannot be any information for the next 18 months anyway because no prisoner will have been out for long enough to qualify for the two years needed to judge whether anything has worked? If the Secretary of State has also suspended any work on the randomised control trial, which is the basis of the comparison that is meant to be made, how is anyone to come to any conclusions?
Although that is social impact bonds, two other pilots were being conducted by the probation service—one in Wales and one in Staffordshire and the West Midlands. I understand that the Secretary of State has paused both of them. So no work is going on into payment by results. Nobody knows whether it works. It is a jump into the unknown. It is costing millions, put in by people on good faith at the moment. If we do not know what is happening and are not to be given any indication how it happened, how can we pass any reasonable judgment on whether this is a sensible way to proceed?
I also question whether the Government have bothered to look seriously at the results of an interesting conference run by Make Justice Work. It had 30 practitioners dealing with payment by results. They came up with four principles that have to be observed and four comments on what is happening now. First, they said that the Ministry of Justice’s present plans appear not to allow sufficient time for necessary experimentation and fine-tuning. Secondly, they questioned how success would be measured. Thirdly, they said that there is huge difference in the market and that some of the smaller organisations do not have access to the capital to enable them to contribute what they have to. Finally, they asked who is going to evaluate and inspect it. In other words, there is a vast vacuum here. It worries me that we are being driven down a route and asked to take decisions based on this word “punitive”, whatever it means, when we are talking about rehabilitating offenders to protect the public.
Thinking in my bath last night, I felt that, in a way, the Government are treating this House with contempt. They are asking people who not only know a certain amount about these issues but who care very deeply about them and also care on behalf of the practitioners in the field. What worries me about them is that they do not feel that they are being listened to. They feel that masses of theories are coming out of the Ministry of Justice and no notice is being taken of the practitioners. It is extremely unwise to launch a case like this with such poor evidence and so much in the air. Too much depends on it and we cannot afford, and it would not be sensible, to go down this route. I beg to move.
The Chairman of Committees (Lord Sewel)
I have to inform the Committee that if Amendment 1 is agreed to, I cannot call Amendments 2 to 10 inclusive.
Lord Woolf
I wondered whether anyone other than on the opposition Bench wanted to say something on this—I certainly do. I start by disclosing that I am the chairman of the Prison Reform Trust and the amendments in my name were put down with its support.
The noble Lord, Lord Ramsbotham, is absolutely right with his amendment. Whenever I get to my feet, I am conscious that as a young advocate, I appeared before a very well known judge, Mr Justice Stable, to advance an argument that my client should not be convicted of murder but manslaughter, and he said to me, “Mr Woolf, if you heed my advice, you would not water the brandy”. I fear that by getting to my feet, I may be inadvertently watering the brandy of the noble Lord, Lord Ramsbotham, because, as has been pointed out, if we get rid of the clause as a whole, we do not need to bother with the detail.
As to the detail, if it remains, I urge the House to get rid of the word “exceptional”. It has been used in legislation in the past. Wherever it has appeared, it has caused difficulties, not least because the question is: what is exceptional and what is not exceptional? That gives the advocate a difficult task; probably more importantly, it also gives a difficult task to the judge. You get into situations where judges are tempted to give an exceptionally wide meaning to the word “exceptional”. I remember a case where I did just that, because it created such an obvious nonsense that it resulted in injustice. A great judge, Lord Bingham, took a much narrower view of the meaning of that word than I did. The fact that two successive Lord Chief Justices should interpret that word in different ways illustrates my point.
With regard to the first of my tabled amendments, I urge the House to deal with the word “exceptional” if it allows this part of the schedule to survive. If it is removed, I suggest that proposed new subsection (2B) of Section 177 will have a sensible meaning. It would read:
“Subsection (2A) does not apply where there are … circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and … would make it unjust in all the circumstances for the court to impose a fine for the offence concerned”.
I do not think that the criticisms that I have made of “exceptional” apply to “unjust”. When judges are sentencing, they are trying daily to achieve a just sentence and if a sentence is unjust they will not impose it. The trouble with Section 177 is that if it is amended as set out in the schedule, it will become a vehicle for causing injustice. If you are sentencing you have lists of sentences for various offences, which you can impose. You might go down the list and decide that a community sentence is the appropriate one. Once a judge has decided that is appropriate, to say that he then has to perform an exercise to see whether that sentence is punitive—and put something else in if he comes to the conclusion that it is not—is really nonsense. It will cause him to do exactly what he has concluded is unjust. He has come to the conclusion that although the community sentence is necessary, it is not necessary to have an additional punitive penalty. From the practical point of view, that really is not a satisfactory outcome.
The other amendment with which I am involved in this group is Amendment 8. Or is that one not being spoken to yet? I apologise to the House; I will come to that later.
Baroness Hamwee
My Lords, I was thinking about not brandy but confectionery and I do not find this fudge, if one thinks about it, as being sweet and tasty. In every other way, however, I absolutely follow what the noble Lord, Lord Ramsbotham, has said, although my remarks will cover rather narrower ground than his.
I really wonder, as others have, whether this provision is necessary. If it is only gesture politics—I say that rather bluntly—it might not be so bad, although I would still deplore it because I deplore gesture politics, but it must mean something. As the noble Lord said, every day the courts do the things that we are being told this provision is directing them to do. I do not believe it does anything but restrict sentencing choices. It imposes a requirement that may be detrimental for offenders whom one is seeking to rehabilitate. I do not need to amplify that; we have a lot to get through and these points will be made better by others throughout today.
I wonder whether Amendment 2 achieves anything. I support the sentiment behind it but changing “must” to “may” does not add anything if we accept that punishment is already one of the purposes of sentencing —which it is, under Section 142 of the Criminal Justice Act 2003. As I say, however, I am with that sentiment.
The letter dated 7 November that we received from the Minister said that the term “exceptional circumstances” is very tightly drawn. I had to go back and reread that, because I think “exceptional circumstances” is very widely drawn when one thinks about the context in which we are debating this. As noble Lords have so often said, and as others outside this House have reminded us, such a very high proportion of offenders suffer from mental illness, substance misuse and dependency that one could not say that there was anything exceptional about their circumstances. The noble Lord, Lord Ramsbotham, referred to debt in the context of imposing a fine. That made me think that being in very straitened financial circumstances, combined with other factors, is often a prompt or a nudge towards theft and various offences.
When we last debated this schedule, I suggested that “particular circumstances” would be a better term than “exceptional circumstances”. Discussing that with colleagues later, we wondered about “special circumstances”, and my noble friend Lady Linklater has tabled Amendment 6 to propose that term. Essentially, we are trying to suggest a number of other possible terms—not alternatives because I do not think “exceptional” is right—if the Government are insistent, as I expect they will be, on retaining this part of the schedule. The noble and learned Lord, Lord Woolf, has taken a scalpel to it and pointed us to the inconsistency between the terms “just” and “exceptional circumstances”. I am very happy to line up behind him if that is the way that the House thinks we should go if we do not get rid of this altogether.
Baroness Butler-Sloss
My Lords, I put my name to Amendment 5, but I strongly support what the noble Lord, Lord Ramsbotham, said and his Amendment 1 to take the whole of this out. I am also happy to support Amendments 4 or 6. I shall make the very obvious point that every community order will be, for the offender, a form of punishment because it is mandatory. You do not need to use the word “punishment” because it is implicit in a community order. I am sorry to say it again, but since the Government have put a form of punishment as part of a community order, as if a community order was not a punishment, I find this extremely difficult to follow. The terms are in conflict with each other in this proposal by the Government. I had not seen it that way to quite the same extent as I did looking at this today. For goodness sake, why put it in? It is sad that the Government seem to need to use the words “punitive” and “punishment” when it is already clear that a community order is punishment because it is an order that whoever receives it will have to obey. If that particular offender does not obey a community service order, he or she will be punished for failure to obey a punishment that has already been imposed. In my view, the words “punitive” and “punishment” are unnecessary, inappropriate and profoundly unattractive. Like the noble Baroness, Lady Hamwee, I wonder whether this is gesture politics. I very much hope it is not, but she made a point that this House ought seriously to consider.
I do not mind whether we use the word “particular”, as the noble Baroness, Lady Hamwee, said, instead of “exceptional”. Preferably, perhaps, we could do what the noble and learned Lord, Lord Woolf, said, which would be to take the word out altogether. The noble Baroness, Lady Linklater, has suggested using “special”. The point is that “exceptional” should not be there for the reasons that the noble and learned Lord has already given. I do not mind how it is altered but the word exceptional has to come out.
The Government have to listen to the people in this House who spoke last week and today and said that this will not do. As I think I said previously, I urgently and respectfully suggest to the Ministry of Justice that this is an unsuitable way to be going ahead. As I have already said, it is profoundly unattractive. The words “punitive”, “punishment” and “exceptional” should be taken out. The Government should recognise that a community order is a punishment. They should not just look to the lobby of the press or the public, but should do what is right.
Lord Phillips of Worth Matravers
My Lords, I endorse everything that has been said thus far in criticism. In my time, I have acted as a sentencer and done a touch of community service. As I understand it, the requirements referred to in the amendment are the requirements under Section 177 of the Criminal Justice Act 2003 that can be made when a community order is imposed. As the noble and learned Baroness, Lady Butler-Sloss, has said, they all require the offender to do something which he or she would otherwise probably not choose to do, so they all have an element of punishment or sanction.
How is this amendment to work? Is the sentencer to be bound to impose one of the requirements by way of a community order exclusively by way of punishment or does the sentencer merely have to say, “I am imposing this not merely for the purpose of rehabilitation but also to punish you”? If it is the latter, the effect is purely cosmetic. If it is the former, the effect, I would submit, is even less desirable.
Baroness Howe of Idlicote
My Lords, I support the approach of my noble friend Lord Ramsbotham to the whole of this schedule. We have been over this ground before. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, punishment is in the sentence. The important scenario is how that sentence is to be worked out for the rehabilitation of the offender, with the effort being to see that that offender does not return to the court. As we all know, all too often that is not the case.
My other concern is that we have had no result—again, this was mentioned by my noble friend Lord Ramsbotham —from the Government on the probation consultation. For us to be asked to make judgments at this stage without having in front of us all the facts about who will do a lot of this very necessary, specialised work, is not acceptable. Frankly, I do not want any of the alternatives that have been suggested but, if others are prepared to keep this whole section in and I had to choose, I would go for that suggested by the noble and learned Lord, Lord Woolf. Then it would be left to the judges to make the decision, which is the way in which we have in the past treated, and should continue to treat, the judicial system.
Lord Elystan-Morgan
My Lords, alongside those who have already spoken, I humbly subscribe my support for this amendment. If ever there was an argument on the part of government that has been shot through and shattered, this is it. If ever there was a piece of legislation where there was an overwhelming and unanswerable case against it, this, in my respectful submission, is it. I appreciate the argument put forward on 30 October by the noble Lord, Lord McNally, when he mildly, with considerable charm, chastised me. He said that it is wrong to argue that a Government should take a view which is different from the policy that has been established by judges over a long period of time. I think I do him fairness in summarising it in that way. He must be right. Parliament is sovereign and supreme. Judges do their best within the limits set down by law, but they can—and should, on occasion—be overruled by Parliament. That is what Parliament is about.
However, I believe that there should be a qualification to that rule: Parliament should never do that, and certainly should never circumscribe the discretion of judges, properly and justly used, unless a case had been made for that, and that case would rest on facts. In my submission, this case does not rest on facts at all. It rests much more on some form of political prejudice. The noble Lord, Lord Ramsbotham, on 30 October, quoted a speech made by the Prime Minister on 22 October dealing with this particular matter. These were the words used by the Prime Minister on that occasion:
“‘At every single level of sentence this Government is getting tougher ... we are toughening up community sentences too. If you are on a community sentence you will be supervised-you will be properly punished-you will be forced to complete that sentence’.”.—[Official Report, 30/10/12; col. 523.]
It seems to me—and I made the point in a general way on the previous occasion—that essentially the Prime Minister was talking about including some element of hurt in a sentence. That is not the same thing as punishment.
The noble and learned Baroness, Lady Butler-Sloss, has already made the point that the fact that a person, with the sanction of the law, is enjoined to do something that he may not wish to do, is of itself a punishment. He is subjected to the sovereignty of the court in that respect. I would argue further that the very fact that a person is convicted of a criminal offence, and that stain will be on his escutcheon for ever, even with all the ameliorations of the 1974 Act, is of itself a punishment. However, what is asked for here is something that society regards as hurting the offender. The rationale behind it seems to be that society in some way, through the courts, has failed to recognise that essential element of hurt. In other words, it is saying, “You are namby-pamby. You are soft. You are far too liberal in your attitude in this matter. You are not tough enough”. There is no evidence whatever to support that contention.
As far as the probation service is concerned, the noble Lord, Lord Ramsbotham, has shown quite clearly that it is tough, it is not soft and it is succeeding. The vast majority of cases are dealt with satisfactorily up to level 3; indeed, some of them up to level 4. No professional body could be expected to do better than that. Where is the evidence of the failure to exercise the element of harshness and pain—for that is what the Prime Minister was talking about?
It is entirely proper for a Government, where they are justified in doing so, to circumscribe the discretion that lies with any judge. I think that both Governments have been doing it a little too liberally over the past 20 years. Be that as it may, where they genuinely believe that there is such a case, they are entitled and indeed, one might say, obliged to do so. The case has not been made. If the Government cannot come forward with any hard evidence at all, they will, in effect, be relying on what the noble and learned Baroness, Lady Butler-Sloss, described really as a cosmetic and rather vulgar attitude, where they will be seeking a populist commendation for something that is utterly unworthy.
Lord Carlile of Berriew
My Lords, I support entirely the sentiments behind the amendment moved so ably by the noble Lord, Lord Ramsbotham. I support verbatim the comments that were made by the noble and learned Baroness, Lady Butler-Sloss, and share the concerns expressed by the noble and learned Lord, Lord Woolf, about the use of the word “exceptional” in these provisions.
These proposals ignore what happens every day of the week in court rooms up and down the country. There is a substantial class of cases—or there are classes of cases—which are not particularly common but fall far short of being exceptional. I am the last person here who should attempt to explain to this House in the presence of members of the judiciary who have already spoken what the term “exceptional” means, but usually it means roughly what the dictionary definition says that it means. These are not the common class of cases; they are truly exceptional.
I mention one group of cases that I have experienced as a practitioner and sitting as a recorder and that causes me real concern in the context of this part of the schedule. It is a group of cases in which the defendants are usually women who have been subjected to often very severe domestic violence and sometimes sexual violence. They have done something fairly serious in terms of criminal law and have usually pleaded guilty. They have to be sentenced by the court, but punishment is somewhere low down the list of the priorities that the judge passing sentence has in mind. The sentence can serve a useful service; there are elements in community sentences that are restorative or retributive and can help to resolve the situation that has given rise to the appearance in court. The requirement of punishment in all but exceptional cases seems to ignore the reality of a class like the one that I have mentioned. For that reason, I invite my noble friend the Minister to hearken very closely to this debate, which has had some very authoritative voices speaking in it, and think again.
Baroness Linklater of Butterstone
My Lords, I add my voice to the chorus of consent as to what this amendment is all about. It seems to arise from the Government’s wish to include specifically punitive requirements in order to, as the Minister for Justice has said, put punishment back into sentencing. The goal is to appear to be tough. This move is simply crude, inappropriate, and very unlikely to realise outcomes that are positive or helpful in any way in the long run. It raises the fundamental issue of what the ultimate goal of sentencing is, or should be, and where the balance should lie with punishment for its own sake. Here I agree completely with the noble Lord, Lord Elystan-Morgan, that when the Government talk about punishment in this context it implies something painful, distasteful and unpleasant. I am clear in my own mind that the reduction of reoffending should be the prime purpose of sentencing, when sentencers make their choices from the available options.
If punishment has its place, we know from the Government’s own research that punitive options on their own achieve nothing in terms of reducing reoffending, and only when allied with other constructive sanctions have they any impact. There is a real risk that requiring sentencers to add this extra element will restrict their freedom to set appropriate sentences based on the facts and circumstances of individual cases. Invariably, there will be a range of support needs at issue. We know, as we have already heard, that the majority of those coming before the courts have significant mental health and learning difficulties, as well as substance misuse, real social deprivation, and so on.
What constitutes exceptional circumstances when what may be exceptional in the general population is more like the norm in the offending population? Their needs are indeed exceptional, so what are the courts to do when the exceptional is the norm? I have put my name to Amendment 6, which seeks to,
“leave out ‘exceptional’ and insert ‘special’”,
to try to make a meaningful distinction, but in the end the courts must be free to decide this issue, as has been commonly agreed. They have to be trusted to find the right balance between punishment and rehabilitation in the decisions they have to make based on individual circumstances and need. Punishment can be used but emphatically not for its own sake and should always be combined with rehabilitative requirements if the ultimate goal of reducing reoffending is to be achieved. It follows, therefore, that the various elements of a disposal must be compatible with each other. I echo what has already been said and remind my noble friend the Minister that all requirements do indeed represent a punishment where freedom is being curtailed. It is true that we have a long way to go before all community sentences are as effective as we would like them to be, but punishment for its own sake is not the answer.
Lord Ponsonby of Shulbrede
My Lords, I support the gist of the amendments as they have been spoken to. I apologise to the Committee for turning up a bit late for this important debate. I emphasise the point made by the noble and learned Baroness, Lady Butler-Sloss, that the sentence itself is the punishment, if one wants to use that word, rather than necessarily the elements within the sentence.
We recently dealt with the Legal Aid, Sentencing and Punishment of Offenders Bill and the relevant training for magistrates and sentencers up and down the country is under way right now. In that training sentencers are told that suspended sentences could have no requirements at all, so that the suspended sentence is itself the punishment for the offence rather than any requirements that may be added by the sentencing Bench. In my view this clearly shows that the Government also agree that the sentence itself is the punishment and that there is no requirement at all in certain, admittedly rather unusual, circumstances for there to be any particular elements to that sentence. Therefore, I do not see what the need is for “punitive” in the first place. I agree with previous speakers that it is a piece of political grandstanding and does not add anything to the Government’s objectives as they are already being rolled out in the training of magistrates in relation to the previous criminal justice Bill.
Lord Rosser
My Lords, my Amendment 2 is designed to find out rather more about the reasons behind the Government’s thinking and how paragraph 2 of Schedule 16 is to be interpreted. The schedule clearly states that where a court makes a community order that must include,
“at least one requirement imposed for the purpose of punishment, or … a fine”
unless there are exceptional circumstances. The Government have decided that there will be exceptional circumstances in around 5% of cases. It is not clear why the Government are going down this road. Their own impact assessment refers to research that has been undertaken by the Ministry of Justice, as I understand it. The impact assessment states:
“Offenders who receive supervision, punitive requirement (unpaid work or curfew) and a programme requirement were less likely to re-offend and committed fewer re-offences within a 2 year period of the community order, compared to those who receive supervision and a punitive requirement”.
It then goes on to say:
“There was no impact on re-offending of adding a punitive requirement to certain other specified combinations of requirements”.
Finally it says:
“Adding supervision to a standalone punitive requirement reduces re-offending”.
Most people would regard those statements as not exactly a ringing endorsement of the value of a punitive requirement. Further on in their own impact assessment, the Government come out with this statement:
“The Government considers that community orders are currently not sufficiently demanding for offenders”.
Is that all of them? All community orders are not sufficiently demanding? If that is the case, then what do the Government intend to do to make all community orders more demanding, since that does not seem to be referred to in any documentation? I hope the Minister will tell us whether that statement in the impact assessment represents the Government’s view when they say:
“The Government considers that community orders are currently not sufficiently demanding for offenders”.
It does not say some of them. It does not say the third that do not include the punitive element. It just says they are not sufficiently demanding for offenders. The Minister will, no doubt, respond to that point and tell us how the Government intend to make the community orders sufficiently demanding in their view.
It says further on—in paragraph 37 if the Minister is interested—in the impact assessment, which is, as I understand it, the Government’s own document:
“Given the need for community orders to remain proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones. The research that we have undertaken does not tell us about the impact on re-offending of replacing requirements with more punitive ones”.
In other words, the Government do not know what the implications of their proposal will be for rehabilitation. Yet they are still proceeding. There is no other interpretation that can be put on that extract from the Government’s own impact assessment.
We have previously raised the issue of the victim surcharge and I would like to talk a little about that. The victim surcharge is for offences committed on or after 1 October this year—the beginning of last month. It will be, with no apparent exceptions, £60 where a community order is given as a sentence to an adult offender. Since for offences committed before 1 October this year there was no requirement to include a victim surcharge where the sentence was a community order, will the victim surcharge of £60—which I believe is now mandatory with a community order—be regarded as the equivalent of a fine, as referred to in proposed new subsection (2A) in paragraph 2 of Schedule 16? If it is, we need not concern ourselves much more with this part of Schedule 16, since every community order will automatically include what is, in effect, a fine, albeit called a victim surcharge, and meet the requirement to include at least one requirement imposed for the purpose of punishment or the imposition of a fine.
If the new £60 victim surcharge for an adult offender, and £15 for a youth offender, which has, I think, just been made mandatory where a community order is imposed, is not to be regarded as a fine under proposed new subsection (2A) in paragraph 2 of Schedule 16, then why not? From the point of view of the offender, the effect is still the same whether it is a £60 fine or a £60 victim surcharge. They still have to pay the money or run the distinct risk of more severe action being taken, including the possible loss of liberty. This £60 victim surcharge is a new penalty to be paid by the offender, since it applies only to offences committed since the beginning of last month. It was not in existence at the time the Bill was being drafted. Has the victim surcharge of £60 to be imposed where there is a community order changed the situation and if not why, why not?
We have a situation at the moment under the Bill where presumably the court, with a so-called non-punishment community order, could levy a very small fine of, say, £15, because of the financial circumstances of the offender. That fine would be deemed to be the equivalent of a punishment under proposed new subsection (2A). The court would then have to impose a victim surcharge of £60—some four times higher than the £15 fine, which could cause the offender much greater difficulty in terms of payment. However, that would not be deemed a punishment under the terms of the proposed new subsection. That does not appear to make a lot of sense or have much logic behind it.
The wording of our amendment, which substitutes “may” for “must” would, among other things, enable the court to decide that the £60 victim surcharge, which is payable when a community order is handed down as the sentence, was sufficient as a punishment element, and the court would not also be required to include either a fine or a further requirement imposed for the purpose of punishment, as currently appears to be the case under proposed new subsection (2A).
I do not intend to go over other points. They have been eloquently made, and repetition would achieve nothing. I look forward to hearing the Minister’s response to all the points raised and questions asked in this debate.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it seems a long time since I was looking forward to us reaching this part of the Bill, where, as noble Lords will recall, we slightly bent the rules—goodness knows what they are now—to allow for Clause 23 to bring in rehabilitation proposals. Of course, in a debate in which a former president of the Supreme Court, a former Lord Chief Justice, a former president of the Family Division and a former Her Majesty’s Inspector of Prisons give their opinions, I listen—as I indeed listened to the noble Baronesses, Lady Howe, Lady Hamwee and Lady Linklater, the noble Lord, Lord Carlile, and particularly the noble Lord, Lord Elystan-Morgan. We had a very interesting discussion about the relationship and power of Parliament and the judiciary. I look forward to reading the noble Lord’s memoirs, which I notice have just been published in Welsh. Have they been published in English? I do not know.
Lord McNally
They are on my Christmas list.
The proposal of the noble Lord, Lord Ramsbotham, is a nuclear option, which I will address in my remarks. However, I will start by reassuring noble Lords that the Government fully recognise the point that underpins many of these amendments and agree that offenders who receive community orders are a diverse group, with wide-ranging characteristics and individual circumstances. For example, such offenders are more likely than the general population to have a disability, to come from low-income households or to receive work-related benefits. Many other examples were brought out in detail by the practitioners who responded to our public consultation on these proposals.
It is clearly vital that community orders take into account these diverse needs. We cannot have a one-size-fits-all approach to non-custodial sentences. At the same time, we also need to recognise that community orders cannot focus only on the reoffending needs of the offender. Many who receive community orders have committed not inconsequential offences. The sort of offences for which sentencing guidelines suggest community orders would be appropriate include actual bodily harm, thefts in the hundreds or low thousands of pounds and first-time domestic burglaries.
While it is critical to address the causes of such offending, it is legitimate to expect such behaviour to face punishment. It is clear that fines and custodial sentences provide punishment for an offender; but at the moment it is possible for a community order to be based solely on addressing the offending needs of an individual offender. Our argument is that, by including the punishment element, we will win the vital public confidence for the holistic response that is at the heart of our proposals: the rehabilitation of offenders.
Our provisions seek to balance the purpose of punishment with ensuring that the courts retain flexibility to tailor community orders around offenders’ circumstances. To that end, I remind noble Lords that we have already amended our original consultation proposal that courts should be required to include specified elements, such as community payback or a curfew requirement, in every community order. Practitioners were clear that, although some community order requirements such as curfews or unpaid work were more often likely to represent a punishment than others, in the right circumstances—this comment has been made by a number of noble Lords—all the existing 12 community order requirements could potentially be punitive for a particular offender. That is why Part 1 of Schedule 16 gives the courts the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.
Lord Rosser
The noble Lord said that the surcharge was not a fine. Will he confirm that it has to be paid? What happens if it is not paid? Will he confirm that action will be taken, just as it would be with a fine?
Lord McNally
Yes, that is exactly the case. However, I also said that the court would be able to use discretion about the circumstances of the individual.
Lord Rosser
In 95% of cases it will not, because the Government have already decided that “exceptional circumstances” will apply to only 5% of cases.
Lord McNally
I would be interested to know where the Opposition stand on two things. First, with the victim surcharge we intend to raise considerable amounts of money from offenders that will go to victims. I presume that the Opposition are in favour of that. Secondly, we are determined to pursue offenders. I know that, particularly in this House, we always hear about the hard cases—but far too many people who offend and are given fines then do not pay them. We intend to pursue them and make sure that they do pay them.
Lord Rosser
We are certainly quite happy for people who do not pay fines to be pursued. I do not know why the Minister raised the issue of what the Opposition think of the victim surcharge. We have never voiced opposition to it. I think that he raised that issue in order to dodge the very direct question that I asked when I put it to him that the victim surcharge is very similar to a fine for the offender. They have got to pay it and if they do not they will be in the same kind of trouble as they would be if they did not pay a fine. The Minister raised the issue of the victim surcharge simply to avoid answering the very direct question that he was asked.
Lord McNally
I was asked a direct question and I gave a direct answer. The victim surcharge will be in place, but it is not a fine. That is what the noble Lord asked and that is what I answered. Now I ask the noble Lord, Lord Ramsbotham, to withdraw his amendment.
Lord Ramsbotham
My Lords, I thank all those who made such powerful contributions to this very interesting and wide-ranging debate. Although I say “wide-ranging”, there was no doubt in my mind that everyone was focused on the primary issue throughout, and covered various aspects of it.
The Minister mentioned that the public sought confidence in the system. Confidence comes from proof that things work. What worried me in all the contributions that were made was that they disclosed vast gaps in things being carried out that have been put to the public as being matters in which they can have confidence. Too much is not proven and not known at present.
I will ask the Minister two questions. First, when can I expect a reply to my letter of 4 October to the Secretary of State, asking for a meeting on this? I have not even had a reply. I would like a meeting because, like many noble Lords, I am functioning slightly in the dark. The Secretary of State is an éminence grise and it would be enormously helpful to find out from him exactly what he feels and thinks.
Secondly, I hope that between now and Report it may be possible to have a meeting and a briefing about this so that we can get to the bottom of some of the issues that have been raised. I do not think that this is an appropriate time to test the opinion of the House. Therefore, I beg leave to withdraw the amendment.
Lord Rosser
“(za) have regard to the need to promote rehabilitation,”
Lord Rosser
Our amendments in this group include a requirement to promote rehabilitation. This requirement appears to be missing from this part of Schedule 16, despite the words of government Ministers recently that promoting rehabilitation was one of their objectives. Indeed, the Minister waxed lyrical in his response to a debate in Committee by telling us that,
“here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on”,—[Official Report, 30/10/12; col. 546.]
not apparently, though, in this schedule as that objective does not seem to be strongly reflected in the terms of the Bill, in particular, in paragraph 2 of Schedule 16. Can the Minister tell us why the Government decided not to make it a requirement on a court when making a community order to also include at least one requirement imposed for the purpose of rehabilitation unless there were exceptional circumstances in line with the provisions in proposed new subsection (2B)? There is not even a requirement, I believe, for a court to consider including at least one requirement imposed for the purpose of rehabilitation.
When we last discussed this matter, the Minister accepted the statistics given by my noble friend Lord Beecham about the nature of people who come into our criminal justice system in relation to educational achievement—or, rather, lack of it—drug and alcohol problems, mental health disorders, having been in care and having been unemployed. Indeed, the Minister has referred to these issues already today.
In his response to the debate in Committee, the Minister said that,
“the prize for getting rehabilitation on to the agenda is extremely important”,—[Official Report, 30/10/12; col. 546.]
but not, apparently, in this part of Schedule 16, which is all about mandatory punishment.
The Minister also told us:
“Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment”.—[Official Report, 30/10/12; col. 548.]
He later said:
“The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer”.—[Official Report, 30/10/12; col. 549.]
In the light of those two statements, which conflict with the Government’s previously declared intentions as to what would be defined as a requirement imposed for the purpose of punishment as set out in new subsection (2A) in Schedule 16, perhaps the Minister could tell us when he responds what is the definition of the “punitive concept” which has been widely drawn and is very much in the hands of the sentencer. Perhaps the Minister could also tell us whether his statement that someone who may never have got up before noon might classify learning to read and write as a punishment means that a community order with a requirement to take a course developing reading and writing skills would be regarded as meeting the provision in new subsection (2A) in Schedule 16 of,
“at least one requirement imposed for the purpose of punishment”.
The Minister was undoubtedly right in drawing attention to the fact that programmes designed to help rehabilitate the offender and reduce reoffending to the benefit of everyone involve punishment. There is a requirement for an offender to attend at specific times, on specific days, for a laid-down period of time, to undertake a specified programme or a specified activity which they most certainly would not otherwise have done. Having to undertake that programme or activity involves loss of liberty for the time they are involved, as they have to do it, and failure to attend or to treat the programme or activity seriously is liable to lead to the offender being brought back to court and either having the programme or activity made more onerous or another punishment imposed, which could include being sent to prison.
Rehabilitative programmes often involve offenders being forced to face up to their behaviour and way of life in a direct way, which can be challenging and distinctly uncomfortable for the offender. In our amendments we have listed programmes and activities which would be regarded as a punishment requirement under the terms of proposed new subsection (2A) in Schedule 16. We have also included unpaid work, a curfew, and exclusion in that list. We have not included as a punishment a requirement that would involve purely supervision.
If the Minister meant what he said on 30 October about somebody classifying learning to read and write as a punishment, and he will agree that the punitive concept is widely drawn and very much in the hands of the sentencer, he will accept our amendments or at least agree to come back on Report with government amendments along similar lines. I beg to move.
Lord Woolf
My Lords, I think now is the appropriate time for me to deal with Amendment 8, which returns to the same problem indicated earlier. I hope I am right in assuming that the Government do not intend the provisions of Section 177 as amended to undermine the effectiveness of community sentencing. My amendment makes that clear by qualifying the requirement contained in the proposed new Subsection (2A) to exclude that provision where it is likely to reduce the effectiveness of the order in preventing reoffending by the offender. This at least gives the sentencing judge a way of not doing something that he knows will be destructive of the beneficial effect of community sentence.
Baroness Hamwee
My Lords, the noble and learned Lord’s amendment goes to the heart of the issue. It would be ironical if what he is seeking to avoid were in fact to come about since all this should be about preventing reoffending. My Amendment 11 provides that none of this should affect the provisions of Section 142 of the Criminal Justice Act 2003, which sets out the purposes of sentencing. I realise that it would have been better drafting if I had just referred to Section 142(1), but never mind; one can come back to that at a later stage.
I am seeking to ensure that we do not impose a hierarchy of purposes and that we leave punishment where it is as one of five principles. I am sure that the Minister understands that this is the quite simple purpose of this amendment. I hope that he can reassure the Committee that nothing here seeks to alter in any way those well established five equal partners in principle.
Lord McNally
I thank noble Lords for their contributions. Let us be clear: of course the five principles are intact but, as the noble Lord, Lord Elystan-Morgan, queried earlier, why bring legislation if we do not intend to change things? We do intend to change things. The whole thrust of what we are trying to do is to use community sentencing effectively, couple it with a real drive on rehabilitation, and also—and we think we have public support in this—use the element of punishment to drive home both the rehabilitation message and the punishment message.
Part of that has come out in our debates. There are noble Lords who believe that “exceptional” covers around a third of offenders. That is exactly the problem we are trying to address because the idea that somehow a third of offenders cannot be punished is what undermines public confidence. That is why we are making the point that exceptional circumstances apply to a very narrow group and that it is possible to put a punishment element into a much wider range of sentences while giving the court the flexibility to take account of the circumstances of the person before it. However, as I said in the earlier debate, we are going to resist those who want to amend the Bill so that there is a three-lane highway of exceptions from what we are trying to do.
Amendments 3, 3A and 8 focus on ensuring that the courts,
“have regard to the need to promote rehabilitation”,
and that punishment is not imposed at the expense of rehabilitation. Amendment 9 looks at the detail of what requirements might constitute punishment for an offender, and finally, Amendment 11 looks at the impact of the changes on the purposes of sentencing as set out in Section 142 of the Criminal Justice Act 2003. On the issues raised by the first three amendments in this group, I am happy to reassure the Committee that it is not the Government’s intention that any of these provisions should jeopardise the prospect of rehabilitation for offenders. In fact, as the noble Lord, Lord Rosser, said, I have already made the point a number of times that I am proud that the amendments we will be debating place rehabilitation so firmly on the agenda—and I keep on reinforcing what has been commended by the Prime Minister as part of this thrust of criminal justice reform.
Lord Woolf
Will the Minister forgive me if I ask him to indicate whether he thinks there cannot be a situation where a judge might conclude that the effectiveness of what is proposed by the Government might reduce the effectiveness of the order to prevent reoffending? If that is the judge’s conclusion with regard to the proposed new provision, does the noble Lord think that the judge should have an escape hatch?
Lord McNally
Yes, of course, judicial discretion should remain. But what I do not want to do from this Dispatch Box is give the impression that on the one hand we are saying down the corridor and on public platforms that we are going to make punishment a key part of giving credibility to community sentences, and that on the other hand the House of Lords is giving a nudge and a wink that actually the judiciary can do what it wants. That would be wrong. I hope that a learned judge, on seeing an exceptional case that needs that kind of judgment, would exercise that judgment. But I hope also that judges will see it as exceptional and not applying to a third of the cases before them. I hope that that is a sufficient assurance for the noble and learned Lord.
Community orders can, in the right circumstances, be highly effective at tackling the causes of offending. The Government are very clear that we need to build on the reductions in reoffending rates in recent years. That is why the Government are proposing to retain Section 148(2)(a) of the Criminal Justice Act 2003, which provides that the requirement or requirements imposed as part of a community order should be those that are, in the court’s opinion, most suitable for that offender. That should provide reassurance on the point that the noble and learned Lord, Lord Woolf, has just made. I would also draw noble Lords’ attention to Section 177(6) of the Criminal Justice Act 2003, which requires courts to consider, when imposing two or more community order requirements, whether they are compatible with each other given the circumstances of the case. Again, the Government do not intend to change that requirement.
In short, these provisions will not prevent courts from imposing requirements that are focused on the offender’s rehabilitation or from imposing a combination of requirements that is most suited to the offender’s needs. While accepting the spirit in which Amendments 3 and 8 have been tabled, I believe that existing statutory frameworks already provide adequate safeguards.
Amendment 3A would change the nature of the punitive element provision so that the courts would be required only to impose a requirement that delivers both punishment and rehabilitation. It is of course true that many of the community order requirements can deliver two or more of the purposes of sentencing. If a court wishes to impose a sentence that delivers both punishment and rehabilitation, choosing a single requirement that delivers both is one possible option—but so is combining a punitive requirement with an additional requirement, ensuring, of course, that the total weight of the sentence is proportionate to the seriousness of the offence.
The noble Lord, Lord Rosser, made a specific query about the example I gave. In theory, a single requirement, activity or programme along the lines that we talked about could fulfil this duty if a court felt it was appropriate for that particular offender. However, there will also be occasions where the court may decide that a purely or primarily punitive requirement is an appropriate response to a particular offence. We would not wish courts’ discretion to be limited so that they are required to impose both punishment and rehabilitation in cases where they do not believe both are necessary. However, as I previously stated, the Government firmly believe that all community sentences, bar in exceptional circumstances, should contain a punitive element. For this reason, while I entirely accept the point that punishment may often support rehabilitation, I do not believe that this amendment is desirable.
Turning to Amendment 9, a number of noble Lords have asked, both in Committee on 30 October and in today’s debate, which community order requirements courts could impose to fulfil this duty. I refer noble Lords back to the responses we received to our consultation on this issue. Practitioners were clear that, in the right circumstances, all 12 existing community order requirements could be punitive for a particular offender. The Government recognise the force of this argument. The courts are best placed to decide, on a case-by-case basis, what is punitive for a particular offender. That is why the Bill is drafted to give courts the flexibility to impose any community order requirement to fulfil the duty to include a punitive element, so long as they can be confident, on the evidence before them, that the requirement will genuinely prove to be punitive for that offender.
Of course, in practice, there are some community order requirements which courts are likely to make more use of than others. Again, this was a point that sentencers and those working with offenders made very clear in the consultation response. The consensus was that certain requirements, for the majority of offenders, are more likely to be punitive than others. The requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government would expect to see an increase in the use of such requirements if this provision is enacted. However, the Bill leaves it open to the courts to decide to impose other types of requirements if they believe, in the circumstances of a particular case, that this would fulfil the purposes of punishment.
Finally, turning to Amendment 11—
Lord Clinton-Davis
The noble Lord referred to other provisions. Would he define what he means?
Lord McNally
It is difficult. I do not know at what time the noble Lord joined our debate.
Lord Clinton-Davis
The noble Lord referred to other provisions which could be made by the judiciary in relation to Amendment 9.
Lord McNally
If the noble Lord is going to help me, I will certainly sit down.
Lord Ponsonby of Shulbrede
Yes, I was going to help the noble Lord. There are nine listed in that list whereas there are 12 possible as part of the community order. Maybe that is what the noble Lord, Lord Clinton-Davis, meant: the additional three that are not listed.
Lord McNally
I will take that lifeline gratefully, but if there are other matters I will write to the noble Lord. I still cannot find the exact line.
It was requirements other than unpaid work, curfews or exclusions. I am now back on track. That takes us back to the point—we are now going full circle. Obviously, the concept of punishment is more likely to mean curfews, unpaid work, exclusions et cetera but, as we discussed earlier, it may be that there are other impositions which, for that particular offender, would be seen as a punishment. The court would have that flexibility to so define them. I hope that helps and I am sorry that I lost the thread. I am assured that I am on page 8. These notes are extremely useful.
I apologise to the noble Lord, Lord Clinton-Davis, for implying that he had not been an assiduous attendee. That was cheap. He asked a good question and I hope that I have now clarified it.
The point was that I was referring to the research that we had done. The consensus was that for the majority of offenders certain requirements are likely to be more punitive than others. As I said, the requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government expect to see an increase in those measures.
Finally, on Amendment 11, I am happy to reassure noble Lords that it is not the Government’s intention to detract from the court’s existing obligation to have regard to the five purposes of sentencing currently set out in Section 142(1) of the Criminal Justice Act 2003. If these provisions are agreed by both Houses, courts will continue to be required to have regard to all five purposes, whether that is punishment, rehabilitation, reparation, and so on. It will continue to be a matter for courts as to what weight they place on each requirement when sentencing a particular offender.
I remind noble Lords, though, that some purposes are likely to be more relevant than others for particular sentencing powers. For example, courts’ powers to discharge offenders absolutely or conditionally are predicated on the assumption that, in the circumstances of the case, it is inexpedient to inflict punishment. Similarly, while a fine can punish and deter an offender, it may do little towards the purpose of public protection. At the other end of the scale, I am sure that noble Lords will agree that for any offender, the deprivation of liberty that results from an immediate custodial sentence remains and represents a punishment.
In these examples, the nature of the sentence being considered may draw courts’ attention to some purposes of sentencing over others, but courts are still bound to weigh the relevance of all five purposes of sentencing. The same is true of these provisions. While courts will be required to determine whether the circumstances of the offence and the offender justify imposing a requirement for the purpose of punishment, they will still have to weigh this against the relevance of other purposes when determining the overall sentence. Nothing in this requirement prevents a court imposing a single requirement that fulfils multiple purposes of sentencing or imposing multiple requirements to meet multiple purposes.
I hope I have been able to reassure the noble Lord, Lord Rosser. I will of course read these debates carefully. I hope that noble Lords will read them, too, because they will find a recurring theme of flexibility and trust in the judiciary and its judgment which should deflect some of the worst fears that have been expressed about our intentions. Our intention is to carry forward a rehabilitation revolution and put effective community sentencing at the heart of that. I fully appreciate that this House, particularly in these two debates, has done its proper job of fine-toothed combing what we propose and seeking assurances about our intentions. I hope that, on reflection, noble Lords will feel that, as it will work and with the flexibility we are building in, some of their concerns are not justified. I hope that the noble Lord will withdraw his amendment.
Baroness Hamwee
My Lords, can my noble friend go just slightly further into Section 142? I indicated I had realised that my drafting was not what it should have been. I have only just realised that Section 142(2) says that subsection (1), which is the five principles, does not apply,
“to an offence the sentence for which is fixed by law”.
My concern is that the punitive elements imposed by the new schedule might be construed as being fixed by law and therefore override subsection (1).
My noble friend has been very good in not yet teasing me about the fact that all the arguments I made about punitive elements could be made against me on the issue of rehabilitation because they are within this schedule as well. The arguments could go both ways. I have asked my noble friend a pretty technical question that I wanted to get on the record. He seems to be getting some advice but if he feels that this needs to wait, I would be happy to do so. It is not fair of me to have bowled him so big a googly.
Lord McNally
I shall simply blame my Box advisers if there was an opportunity to tease my noble friend which they did not draw to my attention. Perhaps there will be opportunity when we get to Report. I am always in awe of the assiduity with which my noble friend approaches her task. I will have a look at the point that she has made in the cold light of Hansard. The hot message from the Box is that the punitive element will not be a sentence fixed by law, but if there is any reason to clarify or modify that, I will write to my noble friend and make the letter available to the rest of the Committee.
Lord Rosser
My Lords, the Minister expressed the hope that we would read the debate carefully. I would have thought he accepted that I read them carefully—I have managed to quote from his speeches repeatedly. Quoting back at him precisely what he said is the strongest part of my case. I appreciate that in the light of the Minister’s explanation every other Member of your Lordships’ House may be completely clear, but there is one Member who is certainly not clear. As I understand it, the Minister has accepted that the case he referred to—that of a person who never got up in his life before noon might classify learning to read and write as a punishment and therefore a requirement to take a course developing reading and writing skills being put in a community order—could be regarded as a punishment under the terms of this Bill. I think that is what the Minister said when he responded to that specific question. Perhaps he would confirm that.
Lord McNally
Yes. The noble Lord seems to be having difficulty. Yes, if the person turns up and learns to read and write, that is a good bargain. We are trying to get rid of the community sentence that suggests that someone clears up rubbish, but after two days he does not turn up and nobody follows it up. The only thing that happens—as I mentioned to the noble Lord, Lord Reid, in the last debate—is that the offender takes the orange jacket to wear as a fashion item at the Saturday night dance. It is that contempt for community sentencing that we are trying to get rid of, but I have no trouble with the illustration that the noble Lord gives, as long as the punishment or the purpose is followed through. The noble Lord knows the problem of illiteracy. If we can build into community sentencing a real sentence with teeth which makes particularly young offenders learn to read and write, it could be a turning point in their lives. The noble Lord does not set me any kind of difficult question by asking for that clarification, as long as the community sentence is effective.
Lord Rosser
The Minister is confusing two things. We are dealing with part of the schedule that refers to a requirement that would be regarded as a punishment. It has been defined elsewhere as, for example, a curfew, unpaid work or an exclusion. The Minister has now agreed—and it is presumably now on the record—that this could be extended to include the case of somebody given a requirement to learn to read and write, and that that could be regarded as a punishment. What the noble Lord then went on to say has nothing whatever to do with the part of the schedule that we are discussing, but with his concerns about people given a punishment. He quoted unpaid work, because he referred to picking up litter or something. That is unpaid work, which is defined as a punishment even in the noble Lord’s definition. However, making sure that it is carried out is totally different from what we are talking about in this part of the schedule. So I do not know why the noble Lord brought that in as an answer to my point.
He says that sentencers will have a degree of flexibility. If that is the case, why did he not accept the earlier amendments to change the word “exceptional”, in one case to “particular” and in another to “specified”? He would not move on that, yet now says, for example, that the kind of programme he referred to could be regarded as a punishment. I do not know why he is not prepared to accept Amendment 9 because it says,
“a punishment requirement may include”,
and it refers to “an accredited programme”. Of course, the answer is that the key thing the Minister has not budged on when he seeks to say that the sentencers will have discretion, is that 95% of cases will be regarded as the norm and will have the punishment element. The Minister will still put on a limit and say that only 5% should be regarded as exceptional. If he was prepared to accept Amendment 9, he would remove any doubt about that and back up his statement that a court may be able to take a view that a community order—for example, a requirement to take a course developing reading and writing skills—was sufficient and could be regarded as a punishment.
However, the guidance that the courts will get on sentencing from the pre-sentence report will be based on what the Government, through NOMS, want to tell the probation service. Clearly the probation service will be told that only in exceptional circumstances can a community order not recommend unpaid work, a curfew or an exclusion. To come back to what the Minister quoted, the ability of a court to decide on a community order that requires developing reading and writing skills is going to be very limited, despite what the Minister said about the sentencers having discretion. The significance of the fact that the Minister was not prepared to accept either amendment to change the guidelines to “particular” or “specified” gave the game away.
The Minister wants it both ways. He wants to stand at the Dispatch Box and say that accredited programmes could be regarded as a punishment and give the impression that sentencers will have a lot of discretion, when we know that they will not. On the other hand, he wants to make sure that exceptional circumstances really are very exceptional indeed. I have been asked to decide whether to withdraw the amendment. Of course, I beg leave to withdraw the amendment.
Baroness Hamwee
“(2C) Before including any requirement falling within subsection (2A), the court must consider whether, in the circumstances of the case, the requirement is compatible with any requirement imposed or which it determines shall be imposed pursuant to subsection (1).”
Baroness Hamwee
My Lords, I shall also speak to Amendment 10. This can be brief, because I think the Minister has already pretty much given me what I sought. Amendment 7 provides that before any of the new requirements are included in an order, the court must consider whether it is compatible with other requirements that it is thinking about imposing as part of a community order. I took this from Section 177(6) of the Criminal Justice Act 2003, to which the Minister has already referred, and I think he has given me the acknowledgment I want. However, he will understand that I want to ensure that the punitive element is compatible with other elements of the sentence and does not undermine or negate them. As I have indicated, one might argue the same about the rehabilitative elements, but I am focused on the punitive.
Amendment 10 refers to the provision in the Coroners and Justice Act about sentencing guidelines. Section 120 provides for sentencing guidelines about certain matters and makes special arrangements for the guidelines that fall within, I think, subsection (3), including publication in draft of the guidelines and consultation, with specific consultees. In this amendment, I seek to add these new elements to that rather short list. I tabled this amendment in my name and that of my noble friend Lady Linklater before seeing the Minister’s letter following our previous debate on the Bill. I understand that he intends to explore the sentencing guidelines with the Sentencing Council, which probably gives me as much as I can expect at this stage. I beg to move.
Lord McNally
My Lords, I had a witty response for the noble Lord, Lord Rosser, but it will have to wait. My best responses usually come about halfway home when I think, “Damn”.
This group of amendments looks at how the provisions relating to a mandatory punitive element will sit alongside existing features of the sentencing framework. Amendment 7 would require courts to consider, before imposing an element that meets the purpose of punishing an offender, whether that requirement is compatible with any other requirement that the court wishes to impose as part of the overall community order. I am happy to give an assurance that it is not the Government’s intention that these provisions result in a combination of community order requirements that are manifestly unsuitable for addressing the causes of an individual’s offending. It is clearly right that where a court imposes two or more requirements in combination, those requirements should complement each other rather than cut across each other.
That is why the Government propose to retain Section 148(2)(a) of the Criminal Justice Act 2003, which provides that the “requirement or requirements” imposed as part of a community order should be those that are, in the court’s opinion, “most suitable for” that offender. I should make it clear that, as a result of these provisions, this requirement would in future be subject to the duty to impose a punitive element. However, that does not change the fact that the courts, having decided on a punitive element, will still have to ensure that, if it is combined with another requirement, that combination is the most suitable for the offender before them.
I would also draw noble Lords’ attention to Section 177(6) of the Criminal Justice Act 2003, which requires courts to consider, when imposing two or more community order requirements, whether they are “compatible with each other” given the circumstances of the case. Again, the Government do not intend to change that requirement. I believe that, taken together, the existing framework already provides the safeguards that my noble friend is seeking.
Amendment 10 would place an explicit duty on the Sentencing Council to prepare sentencing guidelines for courts on the execution of their duty to impose a punitive element within or alongside a community order. I fully understand the intent behind this amendment. Since its creation in 2010, the Sentencing Council has played a vital and valuable role in supporting effective and consistent sentencing by the courts. While the council is of course independent, the Government are committed to exploring with it whether the provisions in this Bill will require changes to existing sentencing guidelines. For example, the council has an existing guideline on sentencing powers in the Criminal Justice Act 2003, including community orders. The current guidelines include material defining low, medium and high intensity levels of community order.
While this and other guidelines clearly provide important guidance to the courts, I would not wish the council’s existing, wide-ranging powers to issue sentencing guidelines to become too unwieldy or complex. The current power to issue guidelines has the twin virtues of simplicity and flexibility, while allowing the Government to request that the council considers issuing guidelines on a particular topic. I am happy to make a commitment to my noble friend that the Government will discuss this and other provisions in the Bill with the Sentencing Council. I hope that, on the basis of these assurances, my noble friend will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I certainly shall. I read Hansard afterwards, so I will read what the Minister said to make sure that it was as good as it sounded. I beg leave to withdraw Amendment 7.
Baroness Linklater of Butterstone
My Lords, in moving Amendment 12, I shall speak also to Amendment 13. The purpose of Amendment 12 is to insert the phrase “meet the needs of the victims” to make it clear that the aim of the restorative justice requirement being imposed by the court is to include both victim and offender equally, which is after all the point of restorative justice. The amendment seeks to keep the needs of the victim at the centre of the process, where they belong.
It is a very welcome move by the Government that this part of the Bill makes formal provision for restorative justice to take place in this country. These provisions allow for the court to defer sentencing following a guilty plea for a restorative justice conference to take place, when all the necessary conditions are present. Of course, this may not always be the case. For example, all potential participants may not be sure that this is what they really want and they may need more time. However, the principle is being allowed for that restorative justice to be an integral part of the sentencing process and subsequent outcomes.
It has been said, rightly, that this is the biggest development for restorative justice since legislation introducing referral order panels happened in 1999, when those panels were set up to offer RJ to young, first-time low-level offenders via the YOTs. The principle is that when a court chooses a restorative approach, it is made clear that all concerned are involved in the process. This is good practice and is at the heart of what restorative conferencing is about: what the circumstances of the crime were both from the offender’s point of view and what it has meant to the victim. It involves developing a realisation by both parties of how and why the event occurred and what it meant to all concerned, both at the time and later. This then has a bearing on decisions of how amends can be made. It is extremely important that the offender gains an insight of exactly how much pain and trouble has been inflicted and that the victim can describe and explain this in a personal way. That can be extremely surprising to the offender, who has often not considered for a moment the outcome of his actions. At the same time, this can be a great help to the victim in coming to terms with the event and moving on in their life. I have sat in on restorative conferences and seen such processes at work. They are truly remarkable.
This amendment seeks to ensure that a restorative conference is a totally inclusive exercise, which is the essence of RJ. Indeed, it underlines the Government’s oft-repeated objective of focusing more on the needs of victims than in the past. There are huge challenges ahead to establish the framework, skills, understanding, acceptance and confidence of all concerned in the realisation of this plan, not to speak of the costs. It remains incumbent on the Government to spell out in much more detail exactly what their plans are in all these areas.
Amendment 13 involves deleting “Imposition” and substituting “Administration”. This follows on logically from my earlier argument; namely, that a restorative requirement should be administered and not imposed by the court. Indeed, the fact that the Government are using words in the Bill such as “Imposition” in this context demonstrates that they, too, have some way to go in understanding what RJ is really all about. This involves proper planning and can take time. It is essential that the participants in a restorative process have consented to do so, and that it has not been imposed or forced in any way. The practical reality is that this may take some time and may not always be possible before a court hearing or before a guilty plea has been entered. Some victims may not have been contacted or they may not be sure that this is what they want and need time to think, particularly if they do not know in advance whether there will be a guilty plea. There are also the practicalities of contacting others who may be involved as secondary victims of the crime, such as family members or supporters. Finally, there is the preparatory work with all the participants. Therefore, importantly, this amendment allows for a deferral period when all this work can be carried out to ensure that the best outcomes of the process can be realised.
Lord Ahmad of Wimbledon
My Lords, I welcome the widespread support restorative justice has received across both Houses. Through this Bill, Her Majesty’s Government aim to empower victims by giving them an opportunity to be heard, and also to ensure that offenders understand the impact of their actions on others and, more importantly perhaps, to motivate them to change. We seem to be in agreement that we should be working towards encouraging restorative justice to be used more widely—a sentiment that I know echoes across this House as well as the other place— not as a replacement to, but in parallel with, existing sentencing powers.
As we have heard from my noble friend Lady Linklater, Amendment 12 adds an explicit reference to the needs of the victim to our definition of restorative justice requirements, which is a sentiment I strongly relate to. The Government are aware that restorative justice can be very beneficial to victims, and our research in pilots demonstrates that 85% of victims participating in direct restorative justice conferencing with their offenders were satisfied, so we entirely agree that restorative justice, when used appropriately, can—most importantly—meet the needs of victims.
Therefore, I cannot argue with this point, and if my noble friend Lady Linklater is willing to withdraw Amendment 12, I will consider it in advance of Report and return to this subject at that time. I am sure that my noble friend will understand that I cannot give an explicit undertaking at this stage to bring forward a government amendment but, as I have said, the Government will give sympathetic consideration to the points she has strongly made.
On Amendment 13, I hope that it is fair to say that, as my noble friend acknowledged, we are at a turning point in relation to restorative justice. The Government are attempting to take a victim-led approach to restorative justice and to move away from the offender-led process. We are also making sure that the victim is aware of, and considers, restorative justice as an option much earlier in the process.
This amendment would allow the court to defer sentencing for restorative justice even when the agreement of all the parties, including the victim, has not been obtained. This is despite agreement being necessary for the activity to take place. The Government take the view that it is important that the victim is able to consider and decide whether to give his or her consent before the court defers sentence. We are therefore not convinced that a court would want to defer sentencing unless everyone was signed up to it, as this could ultimately lead to lengthy delays, which are in no one’s interest. We must also remember that additional delays can result in increased costs.
In addition to concerns that the amendment could increase court time, we need to consider the impact on the victim of deferring a sentence. This is about the victim. In many cases, the victim will want speedy justice and closure, if for nothing else than in order to put the whole episode behind them. Any victim of crime shares that sentiment. I wonder whether deferment without the victim’s agreement could look as if restorative justice was being imposed on the victim in the sense that, “We’ve already delayed the court case for you, so you may well wish to consent”.
As I said earlier, I welcome the strong support for restorative justice from across the House and particularly thank my noble friend Lady Linklater for tabling her amendments. Support for the victim is vital, and I totally align myself with that sentiment. In light of the points I have made and my commitment further to consider Amendment 12, I would be grateful if my noble friend Lady Linklater would withdraw her amendment.
Baroness Linklater of Butterstone
My Lords, I thank the Minister for that response. I am glad that, overall, he has accepted my arguments. I shall have to read Hansard carefully and perhaps ask a few more questions about deferral because it is a new element of reticence that I was not expecting. I am therefore likely to want to come back to this subject, but in the mean time, I beg leave to withdraw the amendment.
“Part 2AProvision for female offenders7A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders.
(2) Provision under sub-paragraph (1) shall include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour in groups consisting only of women.”
Baroness Linklater of Butterstone
My Lords, I will speak about making provision for women—“female offenders”, as the Bill calls them. These new clauses are intended to make good the remarkable lack of reference in this Bill to women who offend, which is for me and many others impossible to understand. They also echo the thinking and recommendations of the Corston report, which were accepted five years ago by the previous Government and were generally welcomed around the country. Like many of my colleagues and friends in the House, I earnestly wish that some moves can now be made to address these issues which are so long overdue.
New Section 1ZA(7A)(1), to be inserted into the Powers of Criminal Courts (Sentencing) Act 2000 under Amendment 14, simply affirms that:
“Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders”,
because it is now generally understood that existing provision, whether in prison or in the community, has been—and still is—largely designed for men. Therefore, it is totally unsuitable for women, as should be absolutely self-evident. Women’s needs are quite different from men’s and the provision must be different.
Jean Corston recommended that there should be separate, specially tailored services locally available, so that the disruption to family life, particularly to children, is minimised as far as is humanly possible. It is self-evident that the needs of the children and families of women who have offended have a huge bearing on their capacity to attend programmes, for programmes to be effective and for reoffending to be reduced. It also has a crucial impact on the risk of orders being breached.
Women’s needs are extremely complex and need correspondingly tailored and appropriate responses. As we heard in a previous debate, most such women are the victims of domestic violence and sexual abuse, which demands quite different skill sets on the part of the providers of services from those required for men. Currently, we simply do not have adequate provision throughout the country to meet the extent of this need. Therefore, we are failing these very vulnerable women. We are also failing our society’s needs and the needs of the many children involved.
Of course, there are probation trusts which make provision for women in their patch. I have visited some remarkably effective and impressive initiatives where women’s centres are turning lives around. I have visited centres where the women themselves are instrumental in making this happen through the understanding and support that they give each other, as well as the skill and sensitive work done by the probation services concerned. But the probation services are not required to do this: hence, the need for this amendment.
The recent joint inspection report on the use of alternatives to custody for women offenders reported a lack of women-specific provision for unpaid work and offending behaviour programmes. However, it said that women-only provision, where available, is often very successful. I know this to be true and have met women who have continued to visit their centre long past the end of their required attendance to help other women who are still under an order.
The second part of this amendment follows on from what I have just said. It states that each probation trust should be able,
“to carry out unpaid work”,
in women-only groups, as well as any offending behaviour work, such as drug and alcohol addiction programmes or domestic violence programmes. For the one or two women in an otherwise male group doing unpaid work, it is likely to be extremely threatening, intimidating and unproductive, and quite likely to end up with the order being breached. Tragically, that is likely to result in a custodial sentence. Indeed, a striking feature of the female prison population is the high proportion of women in prison for breaching a court order—an order originally imposed for an offence that might never have attracted a custodial sentence in the first place. That is a tragic irony.
I hope that the Minister will take this away and look at this serious omission in the Bill. It is not too late to rectify it and, in so doing, he would attract support and heartfelt relief the length and breadth of this land. I beg to move.
Lord Ramsbotham
My Lords, in supporting Amendment 14, to which I have added my name, I shall speak also to Amendment 20, which noble Lords will note has virtually the same wording as Amendment 14 and for the same reasons. As the noble Baroness, Lady Linklater, has made abundantly clear, the needs of women as regards community sentences in particular are currently not being satisfied. Indeed, we are still waiting for the Government’s paper on strategic priorities for women, which we have been expecting for some time.
In his answers to the debate we had on 30 October, the Minister mentioned that there had been success with young offenders. In fact, for young offenders, one has to read “children” because the success has been with the under-18s, led by the Youth Justice Board. There is then a gap, which is variously described as being those between 18 and 21 or 18 and 25. That debate has been raging for ages. It means that there is a gap in the provision for people of a very vulnerable age who are in transition to adulthood. I must commend to the House the remarkable work done by the alliance which has the name Transition to Adulthood. I shall mention in particular two documents published by the alliance. One is called Pathways from Crime: Ten steps to a more effective approach for young adults in the criminal justice process. The other is Going for Gold, which was published last week. It has a bronze, silver and gold approach to community sentencing, which I commend to the Government.
In commenting on community sentences, Pathways from Crime recommends:
“The few existing examples of young adult specific community interventions that exist across the country should be replicated nationally, and similar effective interventions should be available to all sentencers when sentencing a young adult”.
I say “hear, hear” to that. I admit that I was slightly, I hope, confused when in an answer on 30 May the Minister hinted that instead of young adult community sentences being handed to the probation service to administer, they were going to be handed to local authorities. I am worried about that because one of the recent successes in this neglected area, as the House has heard many times, is the intensive alternatives to custody programme. It has been piloted in Manchester, South Yorkshire, London and other places, and was very valuably evaluated by Matrix Knowledge, which proved the value that the programme presented in terms of preventing reoffending.
The probation service has neglected this group for too long, although now, having tasted success with these programmes, it is very anxious to get into the game. I believe it is very important that, instead of leaving provision for this group up to individual local authorities, it should be made clearly the responsibility of the probation service so that intensive alternatives to custody and other programmes can be developed nationally and, therefore, have some hope of consistency.
I am very glad that the subject has been studied with such assiduity by Transition to Adulthood because, in its work, it is filling in a great gap which has existed for too long. On 25 July, the Minister told me that there was going to be a commissioning strategy for young adults from the Ministry of Justice, which we still await. However, I hope that by raising the issue at this stage two very important gaps—women and young adults—can be properly looked after in the community sentencing arrangements, which the Government say in Schedule 16 they intend to introduce.
Baroness Howe of Idlicote
My Lords, I will be very brief. I support both the amendments. They are vital and I hope that they will be adopted fully by the Government. As the noble Baroness, Lady Linklater of Butterstone, has said, it is an extraordinary situation, after all the reports that there have been over the years, that still no special arrangements have been made for women offenders. We know that so many of them have suffered. Around half the women in prison have suffered domestic violence and one in three has been sexually abused. Most of them entering custody have committed non-violent offences. I remember going around a women’s unit some time ago where a radio and television station had been set up and they were being trained to be interviewers as well as the technicians on it. I was asked quite deliberately why I thought it was that women got more severe sentences than men who had committed equivalent crimes. I did not have much of an answer at that stage, but when I checked on it I found that what they said was very accurate. They were being penalised much more strongly.
The noble Baroness, Lady Linklater, made a very important point about the children affected by this. It is absurd to break up families, particularly those that consist of just mothers and children. Quite often the fathers fall by the wayside when the mother goes in to prison. It is not just the break-up of the home that is traumatic—the home is often repossessed—but there is also the effect on the children of suddenly losing their mother and perhaps having to go into care. That is quite unnecessary if working together with the mother and the family can produce the best answer. I am quite certain that in the right circumstances it can.
I believe that Amendment 20, spoken to so effectively by my noble friend Lord Ramsbotham, is also crucial. We know that the cycle of deprivation concentrates on that particular group that comes in and out of prison, and so many of them are in that young age group. We are told that some of the reasons for this may well be that a lot of facilities available for children begin to fade away—the Prison Reform Trust has done an excellent briefing on all of this—and yet these children still have time to mature into adults and do not go through that transition until full adulthood which is reached at the age of about 22.
I hope that some of the experiments that have been reported on will be taken to heart. You have to have both the experienced and the expert there to help the young. Finding jobs or training is crucial if they are to be given an alternative to going back into the cycle. As well as the help of professionals, back-up with things such as HomeStart and people who know how to be supportive within a family are crucial for getting the young offender back on the right path. As we have heard already, there are experiments that have worked. Let us please ask the Government to back them. I am sure that they have exactly the same interests as we all have in this direction, so it is just a question of making certain that we get the right facilities and the right framework to enable this to happen.
Lord Rosser
I will be very brief and say that we support the thrust of what has been said. We will listen carefully to the Minister’s reply, particularly if the Minister feels unable to accept the amendments.
Lord McNally
My Lords, this has been an important debate. It is four-square with two instincts that I had when I came in to this job two and a half years ago and they have been reinforced by all the experiences that I have had over the past 30 months. The first relates to the point made by the noble Baroness, Lady Linklater, that women are different and need a different response from our criminal justice system. The other relates to the age group of young adult offenders—whether it is 18 to 21 or 18 to 25. Not only is that the age of a transition to adulthood; it can also be a transition to a lifetime in crime. It has struck me time and again that if only we could extend some of the lessons that we have learnt from the treatment of young offenders under the age of 18 into that age group, we might be able to have a similar impact.
One thing that is encouraging concerns my right honourable friend Chris Grayling, the new Lord Chancellor and Secretary of State for Justice. I have been impressed by the freshness of his thinking in some of these areas. It may be that, like me, he has the benefit of not being a lawyer and comes to it with a certain action-this-day, can-do approach. One thing I will accept that the noble Lord, Lord Ramsbotham, referred to earlier. I will propose to the Lord Chancellor that he comes to this end of the building and that we have a meeting. I think that it will be to our mutual benefit.
On the point about women, raised by the noble Baroness, Lady Linklater, and the noble Lord, Lord Ramsbotham, I make the point that women now have a new champion in the Ministry of Justice, Helen Grant MP. While Helen has been working her way into the job, it has caused a slight delay in the publication of the women’s strategy. She is entirely comfortable with the content and direction. As for when it will be ready, I am not sure which of the civil servants’ euphemisms I am allowed to use—before Christmas, shortly, in December—but work is well under way and she is taking a close and personal interest. I think that it will be greatly to the advantage of the priority that women are given within the Ministry of Justice that Helen is now in place. I also emphasise that, in developing that women’s strategy, we build on the work done by the noble Baroness, Lady Corston, and the template that she laid down. As with the previous Administration, there is a difficulty with resources in some of our ambitions, but that does not take away from the fact that we are looking at a real and effective strategy, building on the Corston proposals and taking them forward.
Likewise, young adult offenders are a very important group, and if we are going to succeed in a rehabilitation revolution it is in that group that we have to find our success. We must explore ideas to get effective programmes for them. I thank my noble friend Lady Linklater and the noble Lord, Lord Ramsbotham, for drawing the Committee’s attention to these important issues. This Government share their belief that it is important that the criminal justice system is properly responsive to the needs of female and young adult offenders. If we are successfully to rehabilitate both groups of offenders, it is important that we take into account the different profiles of women and young adult offenders, including the factors associated with their offending.
Baroness Linklater of Butterstone
My Lords, I am very grateful to have heard such a positive response from my noble friend and to hear him indeed affirm that women are different. I also thought interesting, although it was a slightly tangential point, the suggestion that we should extent the reach of the YJB to young adult women because they are indeed, in many respects, still children. I have to say that I have 40 year-old children, and I still call them children.
I want to thank the noble Lord, Lord Ramsbotham. The intensive alternatives to custody, which I have seen at work, are fantastically effective and should definitely be extended. I am very keen on the work of T2A as well. I welcome my noble friend the Minister’s suggestion of a meeting with Chris Grayling. I think we would welcome that enormously. I, too, have written to him and got no response. But I am sure that my noble friend the Minister will have no problem in that department. I am aware of Helen Grant being a good ally as a woman with responsibility at the other end.
Worryingly but not unexpectedly, allusion was made to resources. The argument about resourcing is that, of course, especially in this field and especially with the range of vulnerable people involved tangentially—that is, children and wider families when women are concerned—money spent at the right end can have a huge ripple effect when it is spent on issues facing women who may not go into custody but who certainly have to carry out a community sentence. If that is badly handled, it really can affect their lives. Money spent early is money well spent and saves a very great deal in terms of the quality, expectations and prospects of people’s lives, particularly the lives of children.
I still did not hear any response to my suggestion that probation trusts should be required to make appropriate provision and be appropriately funded for doing so, but for the moment I am happy to thank my noble friend once again for his positive response. For the time being, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
In moving Amendment 15, I will speak also to Amendment 16. Again, I hope to be brief.
This takes us to the provisions about electronic monitoring, the first of which provides in new Section 215A(1) that there should be a code of practice relating to the processing—I stress “processing”—of
“data gathered in the course of … monitoring … offenders under electronic monitoring requirements”.
My amendment would extend this code to the use of data. I hope that it is pretty obvious what that is about. Processing is a mechanical matter. The use of data is how you apply what you have discovered. That takes us into civil liberties areas. I hope that the Minister will acknowledge that this is something more than processing and that we can find a way to cover it.
Amendment 16 provides for consultation in preparing a code. The Secretary of State will have the obligation to issue the code. I remember that in the Protection of Freedoms Act there was provision for consultation by the Secretary of State in developing a code of practice relating to camera surveillance systems. This amendment is very closely based on that provision. I have listed a number of post-holders and organisations that will have a particular point of view on what needs to be considered when electronic monitoring is to be a part of a disposal.
Earlier, the noble Lord, Lord Ramsbotham, told us that he would have to leave. I say in his absence that I am extremely flattered that he has added his name to a piece of my drafting.
Lord Clinton-Davis
If the Minister were prepared to give an assurance that consultation will be wide and effectively encompass all the organisations that are listed, would that be satisfactory?
Baroness Hamwee
My Lords, I would like to hear what the Minister has to say about each of the organisations. It will not take very much more of the Committee’s time. I do not know whether the noble Lord was trying to save time.
NOMS and the probation service will have views about the impact of monitoring on individual offenders who, as we know, are likely to have very different characteristics. The Lord Chief Justice has a responsibility for the work of sentencers and therefore will, I am sure, wish to make comments to the Secretary of State about how sentencers will use this tool. The police, as the law enforcers, will have a view and the Information Commissioner and the Chief Surveillance Commissioner have important civil liberties obligations and responsibilities. I will listen to what the Minister has to say and I hope to receive some assurances but it is important to put on record why I have chosen this list of candidates, together with, as I say,
“such other persons as the Secretary of State considers appropriate”.
I beg to move.
Baroness Linklater of Butterstone
My Lords, I support my noble friend Lady Hamwee. As regards the list in Amendment 16, the probation service represents a very important element in the consultation and the setting up of the code. It is clear that supervision is appropriate only when it is coupled with other requirements, particularly probation support. In fact, it is a great mistake for electronic monitoring to be used without proper contact being established with a probation officer. That increases breach rates by 58% and higher levels of reoffending by 21%. You cannot just leave this matter to a bit of technology. It is very important that those who have direct contact with young, or not so young, people in this situation also have the support of people in the probation service who can add their skills and advice to this process.
Lord Ahmad of Wimbledon
My Lords, I speak to Amendments 15 and 16. I noted with some amusement that my noble friend Lady Linklater said that her children were in their forties, which made me feel like a mere child on the Front Bench.
Amendments 15 and 16 in the name of my noble friend Lady Hamwee relate to the duty on the Secretary of State to issue a code of practice regarding the processing of data gathered under an electronic monitoring requirement imposed for either the purpose of monitoring compliance or monitoring whereabouts in short tracking offenders.
As my noble friend said, Amendment 15 is intended to extend the scope of the code of practice to include the use of data as well as the processing of data. In fact, the code itself would be designed to ensure such use meets the principles and obligations set out in the Data Protection Act 1998 for the processing of such data. “Processing” is defined in Section 1(1) of that Act to include the “obtaining, recording or holding” of data, including, among other things, the
“use of the information or data”.
To add the words “use of” to this provision could call into question the breadth of “processing” in relation to the code and could have the effect of narrowing the requirement, which I am sure is not the intention of my noble friend.
The code will undoubtedly cover the use of data obtained under this provision. It will fully and clearly set out the expectations, safeguards and broad responsibilities for the collection, retention, and sharing of data. For example, we envisage that the code will set out the circumstances in which it may be permissible to share data with the police to assist with crime detection.
The noble Lord, Lord Clinton-Davis, correctly pre-empted what I am going to say on Amendment 16. I am always astonished by the great wisdom in this House. Indeed, I can give the assurance that the Government fully recognise the need to consult all stakeholders during the development of the code. Accordingly, the Government intend to consult the Information Commissioner as well as all the other interested parties listed in the amendment to ensure that the framework for processing such data is transparent and lawful while being of value to organisations that are going to use it at an operational level. In the interests of simplicity and flexibility, and given the Government’s undertaking to consult key parties, I feel that this amendment is not needed. Therefore, I hope that I have been able to reassure my noble friend on both counts and that she will be willing to withdraw her amendment.
Baroness Hamwee
My Lords, I am sorry that I did not do my homework adequately on the first of the amendments and I am grateful for the clarification. On the second of the amendments, will the noble Lord repeat what the Government will consult on? Although he said that the Government would consult these organisations, I was not sure that that extended to the point I made about the impact on offenders; in other words, pulling this into the whole package of taking us forward on the rehabilitative route. Towards the end of his response, the noble Lord explained what the consultation would be.
Lord Ahmad of Wimbledon
My Lords, the Government will consult on the full content of the code of practice. My noble friend listed several organisations, including the police and the Information Commissioner. All those listed in the amendment will form part of the consultation.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 17 is a small but significant amendment and I am going to be told that the word “wants” is defined somewhere else. We now go into provisions about the disclosure of information. The amendment is to the paragraph allowing for further disclosure, once it has been disclosed through the first few parts of paragraph 27, to another relevant person, which is of course defined,
“who wants social security information or finances information”.
I suggest that “wants” is a very wide term. I can want something but I do not need it. We all know children who “need” sweeties or whatever, but they do not really: they want them. An official could want information because it makes life that much easier. “Requires” would be the proper term here. There should be an appropriate, underlying—I am struggling for a synonym —need, underlying requirement, necessity or something very close to necessity. It should not just make life a bit easier for the person who is asking for it. One might almost have referred, “to another relevant person who asks for it”. That would certainly have been too wide and “wants” is quite close to that. I beg to move.
Baroness Howe of Idlicote
My Lords, when I read the amendment I thought it absolutely appropriate to use the word that has been supplied. I very much hope that the Government will accept “requires” instead of “wants”.
Lord Marks of Henley-on-Thames
My Lords, I speak to Amendments 18 and 19 in my name and that of my noble friend Lady Hamwee.
Amendment 18 concerns information disclosed to a court, under the same paragraph—paragraph 27 of Schedule 16—as my noble friend’s earlier amendment; it relates to social security information and information to be disclosed by HMRC relating to a defendant’s finances. In both cases, the information is disclosed to assist the court in inquiring into the defendant’s financial circumstances. Sub-paragraphs (3) and (5) of paragraph 27 limit the purposes for which the disclosure is to be made and used—broadly for the purpose of assisting the court in dealing with the offender, with a general prohibition on further and wider disclosure. So far, that all seems entirely appropriate, but sub-paragraph (7)(b) appears to allow such information to be disclosed much more widely and outside the ambit of the proceedings before the court concerning the defendant, provided only that the information is summarised—what is sometimes called “gisted”—and anonymised by framing it in such a way that the defendant is not identified. That allows disclosure of social security and HMRC information relating to the finances of the offender for purposes other than his sentencing which was the purpose for which the information was originally obtained from the government bodies concerned.
What is the point of sub-paragraph (7)(b)? If there is a point to this collection of information, is this Bill and is this Schedule the place for its introduction? If we are to widen powers to obtain and use information in this gisted and anonymised form, then provisions authorising that should form part of a Bill concerning the collection of such information and not be added by a side wind in this way to a schedule which concerns sentencing and information required to assist the court with that sentencing.
Amendment 19 would ensure that, where social security or financial information about a defendant is obtained from the relevant government departments, the defendant must be shown that information and be told to whom it has been disclosed. It is fundamental that a defendant, about whom confidential financial information is obtained from government in connection with proceedings against him, should be entitled, as of right, to see that information to enable him to challenge and explain it, to know the information upon which the court is asked to act and also to know the identity of anyone to whom it has been disclosed. The paragraph, as drafted, permits such disclosure to him, or at least it does not prohibit it, by sub-paragraph (7)(a), but it does not require it and it should.
Will the Minister consider accepting the amendments or at least take them away and come back with amendments to the same effect?
Lord Ahmad of Wimbledon
My Lords, this group of amendments relates to provisions in Part 6 of Schedule 16 that enable the sharing of data between government departments for the purpose of setting fines and other financial penalties. My noble friend referred to definitions and what is where I will attempt in my response to Amendment 17 to make clear that, at each stage of the process, access to the data we refer to will be limited to only those with appropriate authority and a genuine need to see the data for the purposes of assisting a court that may wish to see it for sentencing purposes.
My noble friend Lady Hamwee referred to the use of the word “wants” in paragraph 27 of Schedule 16. This is intended to ensure consistency with subsections (1), (2) and (3)(a) of Clause 22. We have not used such words as “requires” or “needs” in the Bill because, technically, the court neither requires nor needs access to information held by the Department for Work and Pensions or HMRC. The information in question could be obtained by other means; for example, by requiring the defendant to provide details of their own financial circumstances. The relevant person “wants” the information because it comes directly from the Department for Work and Pensions and HMRC and this is the most reliable way of giving the court the accurate information about the defendant’s financial circumstances. It may arise that financial circumstances have changed. There will always be provisions within such proceedings to allow someone in such a situation to be allowed to present an up-to-date position of their financial circumstances.
Turning to Amendment 18, tabled by my noble friend Lord Marks of Henley-on-Thames, I can confirm that Part 6 of Schedule 16 allows for the disclosure of financial information obtained under these provisions in a summary format. Nevertheless, paragraph 27(7)(b) only allows for the publication of financial information if it is in anonymised form. I remind the Committee that under paragraph 28, the publication of any financial information without lawful authority is a criminal offence, punishable by up to six months’ imprisonment.
The purpose of allowing the publication of summarised financial information obtained under this provision is to allow anonymised financial information to be shared for the purposes of research and statistical analysis. This information will be invaluable in helping to identify trends in the criminal justice system and the financial circumstances of offenders.
Lord Marks of Henley-on-Thames
My Lords, of course I will not press my amendments. Nevertheless, I am not sure that the Minister has answered the point about the defendant’s entitlement to see the information. I accept my noble friend’s assurances that it is the intention of the Government that the information will be disclosed, but there is absolutely no reason why such a provision should not be in the legislation, rather than the current, rather negative, lack of a provision that exists at the moment.
Lord Ahmad of Wimbledon
My Lords, again, I assure my noble friend that the defendant would know of any such use of data. If any legal representative of the defendant wished to access that data, they would also be made available. I hope that we can clarify any other outstanding issues either before or on Report.
Baroness Hamwee
My Lords, it might be useful if at some point we could have a discussion whereby we can understand precisely what all the steps are. Like my noble friend Lord Marks, I am clear about the assurances that have been given, but I am not clear to what extent they are within the wording of the schedule and, even having listened to the Minister, how much they need to be there.
As regards Amendment 17, I will look at the references to the other provisions to which he pointed me when he said that there was a need for consistency. I understand that that is important so as not to suggest there is no difference in provision. I might need to ask him if he would be good enough to spend a little time with me, and perhaps my noble friend Lord Marks, to go through the steps in detail. For the moment, I beg leave to withdraw the amendment.
Lord Ramsbotham
“Part 6AProvision for young adult offenders28A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to young adult offenders.
(2) Provision under sub-paragraph (1) shall include provision for services which provide support and rehabilitation appropriate to the level of maturity of young adult offenders and which increases the likelihood of compliance with community orders.
(3) For the purposes of this paragraph “young adult offender” means a person who is aged at least 18 but under 21 when convicted.”
Baroness Howe of Idlicote
My Lords, my noble friend Lord Ramsbotham has asked me to say that he will of course carefully read Hansard and the Minister’s reply but, at this stage, he does not wish to move the amendment.
Lord Rosser
“Part 8Reorganisation of the National Probation Service1 The Offender Management Act 2007 is amended as follows.
2 After section 15, insert—
“15A Power to reorganise the National Probation Service
(1) Any plans to reorganise the Probation Service for England and Wales must be instituted by regulations.
(2) Regulations under subsection (1) shall be subject to the affirmative resolution procedure of each House of Parliament.””
Lord Rosser
My Lords, the purpose of the amendment is to enable the Government to say rather more about their intentions for the future of the probation service, given that an effective and properly resourced probation service will be crucial to delivering the Government’s intentions on community sentencing, which we are discussing, and the decisions of the courts. The Minister also referred to the probation service in our debate on community sentencing on 30 October. The amendment states that any plans to reorganise the probation service must be instituted by regulations, and that those regulations shall be subject to the affirmative resolution procedure of both Houses.
We know that the Minister is a great admirer of the probation service. He told us on 30 October that:
“I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service”.—[Official Report, 30/10/12; col. 549.]
On the face of it, that could be taken to mean that the probation service as we know it today has a long-term future, particularly if it is the Government’s intention to raise the profile, importance and extent of rehabilitation as the means of reducing reoffending. On the other hand, the noble Lord’s words could mean very little.
He said that he could not imagine that any future structure would not draw on the experience and ethos that make it such an excellent service. What exactly did the Minister mean when he said that? One interpretation could be that the Government are nevertheless still looking to hand over to outside contractors large parts of the work currently undertaken by the probation service, and that the experience and ethos to which the Minister referred would be drawn upon because he would expect significant numbers of existing probation staff to be transferred over to those contractors. Is that an interpretation of the Minister’s comments that he would either accept as accurate or not be prepared to exclude?
He said that he was,
“in awe of the responsibilities that our probation officers take on”.
Yet, as I understand it, the Government have indicated that 60% of probation work will be put out to competitive tender. What then were the responsibilities that the Minister had in mind when he said that, and how many of those responsibilities is it the Government’s intention that the probation service should continue to undertake? Is it all of them, as presumably it should be, bearing in mind that the noble Lord is “in awe” and regards the probation service as an excellent service, and that its work will continue to be undertaken by probation officers in the years ahead?
Are the Government looking to reorganise the probation service and, if so, with what objective in mind, and in what way? If the probation service is already excellent, as the Minister told us last month, what improvements in the service do the Government believe can be achieved without potentially putting at risk the quality of the excellent service currently being provided?
We definitely do not want to see any attempt to reduce significantly or change the role of the probation service without Parliament being fully aware of what is going on, without the opportunity for a full debate—with Ministers having to justify their proposals to Parliament—and without Parliament having to agree to those changes. The new Secretary of State seems to believe implicitly in the private sector’s ability to do just about everything better than the public sector, and he is likely to try and outsource as much as he can work that is currently undertaken by the probation service. If that is not the case, the Minister has only to stand up and give a cast-iron guarantee that the probation service will continue to undertake its current activities within the public sector.
The Minister could also say how many staff are in the probation service at the present time and how many the Government envisage there will be in the future, taking account of their proposals in the Bill on community sentencing and their declared intentions on restorative justice and on the role of rehabilitation in reducing reoffending. We will listen to the Minister’s response and the words that he chooses to use—and the ones that he chooses not to use—with interest. I hope that his response will be consistent with the effusive words he used about the probation service in his response to our debate on 30 October. I beg to move.
Baroness Hamwee
My Lords, my noble friend Lady Linklater has already put on record today, for the umpteenth time in this Chamber, our admiration for the work done by the probation service. I hope that is a fair summary. I will not take up the Committee’s time by repeating that or picking up the points of acclamation made by the noble Lord. I simply want to ask him a question. His amendment would insert a provision for the affirmative resolution procedure in the 2007 Act. The significance of the date of that will not be lost on the Committee. In other words, that legislation existed before the last general election. I was hoping to understand, from his introduction of this amendment, why, as that legislation allowed for plans to reorganise the probation service—I understand that must be so from his own amendment—there was no provision included at the time for the affirmative resolution procedure. I make it clear that my question is for the noble Lord, Lord Rosser.
Lord McNally
I do not know whether I am flattered or worried about the assiduity—a world that seems to be creeping into these debates—with which the noble Lord, Lord Rosser, reads my speeches. It is more worrying when speeches of a few years back are quoted back at one and it is perhaps even worse when someone reminds one that most of the powers that we will need to reorganise the probation service were included in the 2007 Act, which, as my noble friend has pointed out, was enacted under the previous Administration.
I would like to help the noble Lord further but he is well aware that we are looking at the probation service in parallel with the other reforms that we are bringing forward. The aim of our reforms will become clear. Noble Lords will know that the provision of the probation service in England and Wales is at present under review. Earlier this year the Government published a wide-ranging consultation paper, Punishment and Reform: Effective Probation Services, setting out proposals for the future direction of probation. The Government are carefully considering the way forward in the light of the comments received and the Government’s wider approach to reforming the justice system.
A key part of these reforms will be delivering a rehabilitation revolution that reduces reoffending rates and therefore better protects the public. The Government want to see offenders, both after release from prison and on community sentences, given the support that they need to keep them on the right track, rather than simply returning to crime. The Prime Minister has made it clear that this will be an ambitious programme, using payment by results across rehabilitation services to harness a range of expertise and to strengthen our focus on outcomes. We are clear that there will continue to be a critical role for the public sector probation service as part of a reformed system. The Government are aiming to set out a vision for the future system over the next few weeks. We will want to engage with probation staff, representative groups and all those who can make a contribution to this important work.
In light of these points, I would be grateful if the noble Lord, Lord Rosser, would agree to withdraw his amendment. Work is under way; consultations are under way; and at the appropriate time we will bring forward proposals which, inevitably and quite rightly, will be subject to the scrutiny of both Houses.
Lord Rosser
I think the Minister has answered the question from the noble Baroness, Lady Hamwee. We have not heard much since the conclusion of the consultation. The Minister has made it clear that there will be a reformed system and, by saying that the Government’s ideas will be around in the next few weeks, he has indicated that your Lordships’ House will not be able to discuss the Government’s proposals on community sentencing in the light of the Government’s intention for the future of the probation service. If that is wrong and if the Minister is telling us that on Report we will know what the Government’s intentions are for the future of the probation service, I will be very happy to give way so that he can tell us that fact. He does not seem to be too keen to stand at the Dispatch Box to confirm that that information will be available for us on Report.
It is with considerable suspicion that we view this Government’s intentions for the probation service. There is clearly a move to outsource more activities. The Minister has not taken the opportunity that I have given him to stand at the Dispatch Box and tell me that I have got it all wrong and that that is not what the Government are thinking of doing. That is the answer to the question from the noble Baroness, Lady Hamwee.
Lord McNally
For the record, we are considering how to give effect to those parts of the Offender Management Act 2007 that open up provision of the probation service to a wider range of providers. In doing that, we will, of course, take a sensible and measured approach to any proposals introducing competition for offender management. Protection of the public will continue to be our top priority as we design our reforms.
Baroness Hamwee
My Lords, I would not say that the noble Lord was interrupted but an explanation has been given by the Minister. I did not expect the Minister to answer my question because it was not a question for him. It was a question about why the previous Government provided for the sort of reorganisation to which the noble Lord, Lord Rosser, referred, but did not provide for the affirmative resolution procedure. I am sure he would have said, as I have, that one needs to ensure that all legislation is proof against succeeding and different governments. The noble Lord was not part of it so perhaps I am teasing him unnecessarily.
Lord Rosser
It was not our intention to do to the probation service what one suspects that this Government are contemplating doing to the probation service. Certainly, nothing that the Minister has just said will have allayed any fears or concerns about the Government’s future intentions for the probation service. We tabled an amendment to ensure that the matter is fully discussed and debated in both Houses and to point out that it requires an affirmative resolution procedure.
I am not surprised that the Minister has declined to answer any of the points that I have put forward in asking him about the Government’s intentions. He has effectively remained silent, which must add considerably to the worries and suspicion about what is intended, particularly since the consultation ended a while ago. However, I realise that I cannot force the Minister to say anything in response to questions that I ask. Therefore, I have no alternative but to beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 22 is a very low-key and minor introduction to this important new schedule about deferred prosecution agreements. It deals with the provision of certain persons to be designated as prosecutors who can enter into deferred prosecution agreements. Paragraph 3(2) states:
“A designated prosecutor must exercise personally the power to enter into a DPA”.
If I split an infinitive, it was because I was quoting. Paragraph 3(3) states that,
“if the designated prosecutor is unavailable, the power … may be exercised personally by a person authorised … by the designated prosecutor”.
This is a probing amendment. I seek to understand what is meant by “unavailable”. I assume that it would mean something more than “unavailable because he has gone to the dentist that afternoon”, and would mean unavailable because he or she is having long-term treatment for a medical problem that keeps them away from the office and away from work. The amendment specifies that the unavailability should be,
“for a period of or likely to be of more than 21 days”.
I am by no means wedded to that. As I said, this is a probing amendment, because “unavailable” could be read as meaning a very brief period where it would not be appropriate for power to be delegated. I beg to move.
Lord Beecham
My Lords, the noble Baroness raised a perfectly fair and reasonable point, to which no doubt the Minister will be able to reply. Looking again at paragraph 3, it strikes me that perhaps there are one or two other questions to ask. Paragraph 3(1) states that the prosecutor is designated by an order made by the Secretary of State. That is a very high-level appointment. It is emphasised by paragraph 3(2), which states that the designated prosecutor,
“must exercise personally the power to enter into a DPA”.
Again, it follows that this is a serious responsibility for somebody appointed at the highest level relevant to that appointment.
It would appear that the person then has a delegated power, in the circumstances which no doubt the Minister will elucidate of his or her unavailability, to appoint somebody else. There does not seem to be any procedure for that person necessarily to be one of a group approved in advance by the Secretary of State. It may be that a sort of panel system is envisaged, but that is not clear in the Bill. Presumably anybody could be designated—in theory they could be relatively junior—by the original designated prosecutor to carry out this very responsible work.
This thought had not occurred to me until the noble Baroness opened up the issue. However, it strikes me as a matter that the Minister should take back and look at. I would envisage that a panel system would apply, but surely it would be sensible to specify that that would be the case, rather than leave an untrammelled decision to the designated prosecutor in circumstances where he or she is not available to do the job. Perhaps the noble Lord, Lord Ahmad, will take that back and look at it, in order to answer both problems that we have identified this evening.
Baroness Hamwee
My Lords, perhaps I can come back on this. The point is reinforced by the fact that designation under paragraph 3(1)(c) is subject to the affirmative procedure under Clause 30.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for moving her amendment. When devising the new process for deferred prosecution agreements for England and Wales, the Government sought to ensure that it aligned with key strengths and aspects of the existing criminal justice system. To that end, we provided for decision-making throughout the process to be properly guided, including by the code of practice for prosecutors, and overseen by the judiciary.
Paragraph 3 of the schedule provides that the decision to enter into a deferred prosecution agreement with an organisation should be exercised personally by designated prosecutors, namely the Director of Public Prosecutions and the director of the Serious Fraud Office. This is to ensure that there is prosecutorial oversight of each DPA at the highest level. It mirrors existing requirements for such oversight, including, for example, decisions to bring proceedings under the Bribery Act 2010. Offences under the Bribery Act 2010 are among the economic and financial offences for which we propose DPAs. This process should be available, as detailed in Part 2 of Schedule 17.
My noble friend Lady Hamwee and the noble Lord, Lord Beecham, asked what would occur when the relevant director, whom we hope in each case will make the decision personally, is not available. In order that due process can continue without delay, we have provided the power for the relevant director, if they are going to be unavailable, to designate another prosecutor to exercise the oversight and decision-making functions. The noble Lord, Lord Beecham, asked whether they could assign this power to anyone. I suggest that someone who is qualified and in such a senior role will assign it to an appropriate prosecutor in their relevant area.
Consistent with similar powers for personal decisions by directors, such as those under the Bribery Act 2010, we have not sought to constrain the ability to delegate the power to enter into a DPA. We are not contemplating large numbers of deferred prosecution agreements each year, and are confident that the directors are fully committed to making decisions personally, as envisaged, and would designate another person to do so only in exceptional circumstances and with good reason—and, I will add, would designate only an appropriate person.
I consider it important in the interests of openness and consistency that DPAs should align as closely as possible with existing and established law, and with the processes of our criminal justice system. That is what we have sought to achieve in paragraph 3, and indeed throughout Schedule 17. I therefore hope that with this explanation my noble friend will withdraw her amendment.
Lord Beecham
I am grateful for the Minister’s response, but he has not quite addressed the issue. There is nothing in the Bill that would require the substitute prosecutor to be a designated prosecutor; they could be anybody nominated by the original designated prosecutor. I again invite the Minister to take this back and have a look at it. It seems—and I think that the noble Baroness agrees with me—that there is a lacuna here that needs to be filled.
Baroness Hamwee
My Lords, of course I will look in any direction that the noble Lord points me to in considering consistency with other legislation. I think that what we are being asked to do is to rely on the good sense, and good sense of responsibility, of those who hold the posts specified in paragraph 3(1)(c). I understand that and take the point seriously but, as the noble Lord, Lord Beecham, said, at least some further thought is required in order that we can be confident that enough constraint is in place. For the moment, I beg leave to withdraw the amendment
EU Report: Women on Boards
(12 years, 1 month ago)
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Baroness O'Cathain
Baroness O’Cathain to ask Her Majesty’s Government, in the light of the Report of the European Union Committee on Women on Boards (5th Report, HL Paper 58), what is their position on proposed EU action to increase gender diversity on boards.
Baroness O'Cathain
My Lords, this is a time when we are making history. The report of the European Union Committee on Women on Boards was published last Friday and we are debating it tonight, which is two working days. This is excellent, of course, but it gives no time whatever for a government response. We hope that they will give one in due course and we look forward to that.
Gender equality has long been one of the core objectives of the European Union. The treaty on the functioning of the European Union is clear that,
“in all its activities the Union shall seek to eliminate inequalities and to promote equality between men and women”.
There has been important legislation, including the 2004 gender directive, which insists that there should be equal treatment of women and men in the access to and supply of goods and services, and the 2006 directive on equal opportunities for men and women in the workplace.
Since 2010 this objective has been vigorously pursued by the vice-president of the Commission, Viviane Reding, and in this country by a number of business leaders, spurred on by the 2011 inquiry by the noble Lord, Lord Davies of Abersoch, at the request of the Department for Business, Innovation and Skills.
The Commission action so far has included in September 2010 the strategy for equality between women and men; and in March 2011 European companies were invited to sign the “Women on the Board Pledge for Europe”, which required that companies should commit to raising female representation on their boards to 30% by 2015 and 40% by 2020. UK action so far has been the Davies report, to which I have already referred, which underscored the benefits of having more gender-diverse boards. The Government have largely accepted the findings of the Davies report but have rejected the ideas of quotas at the EU level.
Sub-Committee B undertook this inquiry because of the topicality and the importance of the issue, its place within the committee’s scrutiny remit and the expected directive from the Commission imposing quotas for women on boards. This proposal was initially expected on 23 October but was postponed. We now expect the directive to be put forward by the Commission tomorrow. So if that is not topical, what is? A leak appearing in FT.com today confirms that the Commission is widely expected to propose some form of quota for 40% of women on boards in plcs within the EU by 2020.
In asking this Question, I thank everyone who has contributed both written and oral evidence to our inquiry; and the members of the sub-committee who worked so hard to produce this report, four of whom are taking part in this debate. I thank them particularly. I also thank our clerks, Mark Davis and Nicola Mason; the policy analysts, Paul Dowling and Sarah Watts; and our committee assistant, Elaine Morgan.
There is a strong case for action in this area. As already noted, gender equality is already a key EU objective. Viviane Reding has made this a priority. The committee found merit in this work to encourage greater female board membership and urges the Government to continue to support the Commission as well as pioneering their own initiatives.
We observed the significant benefits derived from a more diverse board. These include better reflecting the perspectives of customers; challenging established thinking—or “group think” as we are now supposed to refer it; female board members can serve as role models for women within and outside organisations; and the need for fairness and equality of opportunity—for example, in the UK, women make up 45% of the labour force and 60% of graduates, yet only 17% of board positions are held by women in the FTSE 100. In the Cranfield study it was stated that there are 2,500 “board ready women”—that sounds a bit like “chicken ready”. However, we are not convinced by the evidence which has been put forward for a direct link between gender diversity and increased business profitability and would discourage the promotion of such claims in the absence of further and more conclusive research.
On quotas, the Commission is well placed to encourage member states to act in this area. Article 157(3) TFEU allows the EU to adopt legislation aimed at ensuring equal opportunities. However, voluntary progress at the level of member states has been slow. This was the Commission’s key argument for the suggestion that quotas should be imposed. It takes as one example the adoption of quotas in France, where a 40% quota for female board directors is imposed at a national level. However, based on the wealth of evidence the committee received, we considered that similar legislative action from the EU at this level would be inappropriate for four key reasons.
First, to impose EU-wide legislation would jeopardise self-regulatory efforts and the current positive engagement from industry in countries like the UK where businesses are strongly opposed to quotas. Secondly, there is a possible argument that this would undermine the principle of subsidiarity. Subsidiarity being the case, the EU should act only if the proposed action cannot be achieved by the member states at national and regional level. Thirdly, positive non-legislative efforts are already being made in the UK. Fourthly, any legislation which induces quotas is best imposed at national level, and this is already being done in France and Italy.
Quotas would achieve statistical change but neglect the underlying causes and risk fostering the incorrect perception that women on boards were not there by merit—for example, 89% of the 2,600 women who responded to the consultation of the noble Lord, Lord Davies, opposed quotas. Quotas would not address the lack of a sustainable and consistent “pipeline” of women through businesses and onto boards, according to the National Association of Pension Funds.
While in the long-term progress has been disappointingly slow, female representation on boards has increased exponentially in recent years. In 2011-12, we saw female board membership increase by 3.1%, the largest reported increase at FTSE 100 level. Indeed, when I look back at my experience when I had my first FTSE 100 board appointment in 1984, I was one of six women in the whole of the FTSE 100 who had a board appointment. So we have made progress. In March to September 2012, 44% of new board appointments were female.
As to the experience of other countries, which is often quoted, Norway introduced a quota of 40% women board directors in 2003, with a deadline of 2008 for publicly traded companies. The 30% club pointed to the low number of women in executive positions in Norway as a lack of the effectiveness of quotas. Despite 44% of board members being female, only 8% of Norway’s CEOs are female.
Barnali Choudhury, a lecturer in corporate law at Queen Mary College, London, highlighted the disputes surrounding the practicality of quotas despite its strong culture of quotas. She therefore suggested that a one-size-fits-all solution around Europe would be deeply flawed given the variance of such cultural factors.
Too little time has elapsed to assess the impact of quotas on other EU countries such as France and Italy, where legislation is less than two years old. However, it is notable that, despite having quotas in France, the French Administration agree that EU action should begin with non-legislative measures.
Henry-Labordère, Counsellor for Labour Affairs at the French Embassy, was keen to see co-ordination at a European level but believed that a “graduated approach” of “reasonable voluntarism” was the most appropriate first step. We investigated and suggest other measures, including monitoring progress. A number of witnesses suggested that more effective monitoring in the areas of gender diversity of board members could go some way to solving the problems that this report seeks to address. However, witnesses were divided on the best means of performance monitoring. Witnesses also highlighted the merits of voluntary initiative, such as the “comply or explain” element in the voluntary code of conduct which was launched in July 2011. This is significant as it was drawn up by the search firms sector, which has a prominent role in the appointment of board members.
In conclusion, we acknowledge that progress in this area is needed, but that it should be business-led, enabling a sustainable supply of women to move up the “pipeline” and into board positions. Therefore, the imposition of quotas at EU level should be resisted, since they would negate the engagement and goodwill shown by businesses in recent years. The Commission has a role to play in fostering this voluntary approach and should focus on highlighting best practice in the area. While it is beyond our remit, we note also that developing a sustainable supply of female talent may also require broader cultural reform of working practices. As such, we welcome the broad focus at both national and EU level on these wider issues. This is the most important recommendation.
Baroness Ford
My Lords, I thank the noble Baroness, Lady O’Cathain for securing this incredibly topical debate. In the 1980s, she was the Chief Executive of the Milk Marketing Board, then a very important national organisation. She was a powerful role model for many of us who followed her in business. The European Union Committee has delivered a very thoughtful and practical report on this issue. Its preference, and that in the report of the noble Lord, Lord Davies, is for companies initially to have some time to deal with this issue rather than immediately impose quotas. I believe that they are right in this as things are now changing very rapidly. When I was first appointed to the board of a private company 20 years ago, it was something of a novelty. The usual excuse for not having diversity in boards was that not enough experienced women were available. Even if it was true then, which I doubt, it is nonsense now. A whole generation of women have had successful executive careers and form a huge pool of talent available to fill board positions.
However, we need to embed these changes and make sure that they stick. The question is how best to do that. In the minute remaining, I want to say that one thing strikes me as particularly important. We must continue to exert pressure on companies whose boardrooms are still one-dimensional and also on those search firms whose research is particularly weak in this area. We must embed diversity in mainstream corporate governance in line with the UK code. I am absolutely sure that this is the best way to proceed. At the moment, companies show their range of professional advisers in their annual report—their brokers, their auditors, their lawyers—but they do not show their search firms. It would be hugely revealing to have this information made public. I welcome the changes proposed by the Financial Reporting Council in this regard. I believe that it will demonstrate, as lots of us know from our own experience, that certain search firms, as well as certain companies, are much better than others at thinking laterally and behaving inclusively. If the last few years have shown us anything about institutions and organisations in this country, it is that the very best way to effect change is through transparency.
Baroness Scott of Needham Market
My Lords, I want to start by paying tribute to Commissioner Reding. We have seen the value of strong leadership when it is shown in this country, as it is here by the noble Lord, Lord Davies, and Vince Cable. Article 2 of the EU treaty clearly gives a competence in equalities issues and the Commission is quite right to look at the question of women on boards in this regard. While the position of women in the boardroom in countries such the UK and Norway has undoubtedly improved, it is very poor elsewhere in the European Union. For me, one of the most persuasive parts of the evidence we heard was the reminder that the current situation is such a waste both of talent and of the public investment in the education of women if they find their way is barred. Our report therefore sets out some of the ways in which the EU can take action—for example, through monitoring, collection of data, exchange of best practice with the business sector and executive search firms—in the way that the noble Lord, Lord Davies, has done here. I believe that naming and shaming companies who are laggards can be very powerful, particularly if shareholders exert their power.
While I am not against quotas per se, I have serious reservations about them for all the reasons we have just heard. If they were imposed at EU level, it would be difficult to find a quota which would reflect the very different rates of participation across the Union. If a quota were set too high, it would be impossible for some states to reach; if it were set too low, it could actually set women back in other countries. If Government lose that argument and EU quotas are the outcome, I would advise them to negotiate for percentage increases rather than a one-size-fits-all. For me, it is a matter of practical subsidiarity. Whether or not to have quotas and how they should be used is a matter for member states.
Lord Patten
My Lords, I should declare an interest—not mine but my wife’s, now in her twentieth year of uninterrupted service on the boards of FTSE 100 companies. From time to time, as your Lordships might imagine, her ladyship has occasionally favoured me with her views on this subject across the Chinese duvet that quite properly separates our business interests. That said, these are my views, not her ladyship’s. First, I give strong support to the noble Baroness, Lady O’Cathain, and her committee. Secondly, I certainly want more well-qualified women on boards. Thirdly, I agree with the general tenor of the remarks made recently by Burberry CEO Angela Ahrendts when she said on 9 November in response to a question about quotas:
“Just put the best person into the job. It is not about gender, it is about experience, leadership and vision”.
Miss Ahrendts then very generously went on to observe,
“A man could do this job”.
Two of the best quota-free ways of encouraging more women directors are, first, for companies always to remember that women striving for the top make choices not sacrifices. They are not victims as they strive to struggle and juggle family, children and work. Secondly, improving company working practices, styles and rhythms to accommodate this juggling by women has a lot to do with companies’ success. The best companies, the crack companies, have already started this—Amazon, Apple and, indeed Burberry. One can go from A to Z through the list of major companies. It is one of the best non-discriminatory ways of helping more women up the executive leader, itself one of the best routes into non-executive directorships as it happens. It also helps to build better companies.
Lord Haskel
My Lords, as the noble Baroness, Lady O’Cathain has explained, a proposal by Commissioner Reding that there should be a mandatory 40% of women on boards has been legally challenged so fresh proposals are imminent. I add my thanks to our clerk Mark Davis and the team who drafted this report in double quick time so that we can contribute to the debate.
We are convinced that the objective of greater gender balance is right but we have tried to respect and understand the different ways that each member state conducts its corporate affairs. We call for a 30% target before a mandatory 30% quota is enforced. As we explained in box 2, and as the noble Baroness reminded us, the legal basis for gender equality is already in place. Indeed, some member states already have quotas and we list these in Table 1 of our paper. The House is therefore entitled to ask why we should bother. There are practical reasons. First, we think that 30% is the right number. Secondly, during my time in business, I observed that firms got into trouble when they ceased to serve society in order to serve themselves. The banking industry is only the latest example and one way to avoid this, and to keep up with the changes in society, is through diversity. Women are 50% of the society that we serve.
As we point out in our report, one way in which to increase the potential pool of women—and, incidentally, benefit from their knowledge and experience, as the noble Baroness, Lady Ford, reminded us—is to look outside the usual networks. The public sector, the voluntary sector or the women scientists’ concordat. All this is far better than the golf club. I also think that our ambitions must go further than the FTSE 100 companies and should perhaps include all firms in the FTSE 250. I strongly support the EU initiative. It is right to call for penalties, but only as a last resort if the target of 30% is not achieved.
Lord Bilimoria
My Lords, in 2003 I was a member of the Tyson Task Force on the Recruitment and Development of Non-Executive Directors, where we examined,
“how a range of different backgrounds and experiences among board members can enhance board effectiveness and by exploring how a broader range of non-executive directors can be … recruited”.
I thank the noble Baroness, Lady O’Cathain, for initiating this debate and I am relieved to see that the EU Committee’s report is emphatically against imposing quotas. There are two issues here: how can we continue to encourage UK plc to have the most effective boards, and secondly, how can we ensure that UK plc pursues equality of opportunity? It is not just about doing things right, but about doing the right thing because it makes sense.
Apart from chairing the Cobra Beer Partnership Ltd and Molson Coors Cobra in India, for the past five years I have been a non-executive director and the senior independent director of the Booker Group plc, a FTSE 250 company. When I first joined the board five years ago, there were no women, but that situation has changed. I am proud to say that we have a very effective board that has seen the company’s value increase virtually five times in five years. What is key is finding the best individuals for the board with diverse skill sets, backgrounds and experience that are as relevant to your business as possible, and increasingly that should include international experience. It is the responsibility of the chair to search as widely as possible to find these individuals, as well as the responsibility of headhunters. Although it is good news that more than 50% of FTSE 250 companies now have at least one woman on their boards, we could do so much more. As was said earlier, the Cranfield University School of Management, of which I am a proud alumnus, in its 2012 Female FTSE Board Report identifies more than 2,500 women who are ready and capable of taking on board positions.
We need to persist in encouraging and highlighting the benefits of diverse boards, and in particular having more women on boards. The report of the noble Lord, Lord Davies, is doing this in the same way as the Cranfield University School of Management report, and in the way that the EU Committee’s report is doing it. Jennifer Harris, the managing director of Board Intelligence, wrote last year that:
“Boards make important decisions and diverse boards might make better ones”.
From my experience, I have seen that they definitely do. I shall conclude by saying that we need look no further than your Lordships’ House. I would go so far as to say that this is the most expert and the most diverse upper House in the world. We did not need quotas to achieve this; we have done it because it makes us more effective, and because it simply makes sense.
Baroness Miller of Hendon
My Lords, I, too, would like to congratulate my noble friend Lady O’Cathain on having secured this short and most important debate. I have only served on the board of one commercial public organisation, the Crown Agents, and I therefore do not have the same experience as does my noble friend following her very distinguished career in the world of high-powered finance. However, I do have the experience of being involved in the very long campaign to get more women into Parliament, as an early founder and later the director of the 300 Group, and I was also deeply involved in the campaign for more women to receive appointments to public bodies. That campaign has been partially successful as regards the other place and even in your Lordships’ House, and progress continues to be made—although only slowly as regards appointments to public bodies and the senior Civil Service.
The one thing that the two campaigns have in common is that women do not want to be refused appointments to company boards simply because they are women, but equally they do not want to be appointed only because they are women. They do not wish to be the token woman on the board to make it look good. Neither of those actions is in the interests of the shareholders. It is true, as the former Equalities Minister, the Member for Hornsey and Wood Green, is reported as saying in today’s Daily Telegraph, that having children—and worse still, the possibility that they may do so—is an impediment to some women’s careers. But still I am hopeful, if not confident, that women are on the edge of a breakthrough—it sounds as though they might very well be—and that they will simultaneously shatter the glass ceiling and put an end to the malign influence of the old boys’ network. Given that so many men have spoken in this debate, I hope that they will forgive me for that one little remark.
I hope that today’s debate will come to the attention of shareholders, especially the institutional shareholders of public companies, and that they will use their influence to ensure that the vast talent of 50% of the population is put to its fullest and best use. That is all I want to say other than to look to my noble friend and thank her once again for having called for this most interesting debate, one that has encouraged so many gentlemen to speak so well about our sex.
Lord Giddens
My Lords, unlike other noble Lords who are speaking in this debate, I am a strong supporter of obligatory quota systems for gender equality, and certainly at the national level. They create a platform for advance that no other approach can rival. We have a lot of evidence on this. Voluntary approaches by and large do not work, no matter how ambitious they are. After more than a century of struggle for women’s rights, 86.5% of board members in the EU are still men—that is almost 90% after such a long period. That shows that we are dealing with very deeply embedded forces. Radicalism of all sorts is required on the issue, not only for reasons of social justice but because of the need to tap an unused reservoir of human capital. We owe the EU Commissioner, Viviane Reding, a debt of gratitude for putting the issue so forcefully on to the EU 2020 agenda, even if her original proposals do not look as though they will go through.
I have two questions for the Minister. First, what plans do the Government have not just to implement the recommendations of the Davies report but to go beyond it, especially to introduce some form of sanction? Without sanctioning mechanisms, we are not going to get near the targets. Secondly, does the noble Baroness agree that only those countries that have introduced enforced quota systems have made fast and substantial progress? We know the famous case of Norway, but in a whole string of other countries there has been a dramatic change in the course of even a year or two after the introduction of such legislation.
Lord Smith of Clifton
My Lords, the situation is not improving. In the past year there has been a reduction in the number of female FTSE 100 CEOs from four to two. The recent reshuffle has seen a reduction in the number of women Cabinet Ministers. Furthermore, to add insult to injury, job for job, women are paid £400,000 less over their working lives than their male counterparts. They also receive less than half the average amount in bonuses than men in the same positions, and women directors are twice as likely to be made redundant. Increases of women directors in FTSE 100 companies have invariably been in the non-executive category. Among the FTSE 250 firms, the situation regarding women directors remains dire. Some 94 out of the FTSE 250 companies have no female board members.
The Government remain opposed to quotas, preferring to encourage a voluntary code. “Nudging” is not effective, as the noble Lord, Lord Giddens, has just said. Both major companies and the Cabinet will fail to meet the 25% female participation targets by 2015, as set by the noble Lord, Lord Davies. Mandatory quotas merit the most serious consideration.
I am saddened by the number of women who, against all the odds, have achieved commendably high positions in the corporate world but nevertheless decry the introduction of quotas. They seem to feel they have to be more macho than the boys, who self-servingly reject quotas. The fact is that these protestations fly in the face of the evidence: quotas do work, and not just in Norway. Within the UK quotas have worked very well. Following the Patten report, the Police Service of Northern Ireland was required to apply quotas over a 10-year period to improve the recruitment of Roman Catholics. The target was achieved well before the 10 years had passed and, what is equally significant, it led to a marked increase in the recruitment of women from both communities, up from 12.6% to 26%. That is a fact, and will the Minister in winding up the debate please confirm that?
Lord Moynihan
My Lords, I ask the Government to reflect on the themes in the European Union Committee report in the context of the boards and committees that provide governance in the specific sector of sport and recreation in the United Kingdom.
Last week in your Lordships’ House, I called for an end to the ban on women members in certain golf clubs, including the Royal and Ancient in St Andrews. Today I broaden the theme to focus on the wider role of women in British sport administration. Maria Miller, as Secretary of State in the Department for Culture, Media and Sport, also has responsibility for women in society, and I urge her to address this issue as a priority. Where are the women sports editors? Why are women so underrepresented on the boards of British sport’s governing bodies?
Following the London Olympic and Paralympic Games, which so vividly demonstrated the impact of girl power, the number of women on the international sports federations and the International Olympic Committee—with its 118 men and 24 women, a ratio reflected on many of our governing bodies of sport—falls short of where we should be in the 21st century. As the Times editorial on 27 October stated:
“There are not many sports whose governing structure would withstand the pressure of scandal. The governance of sport is one of the few institutions where the disinfectant of scrutiny has not yet been applied”.
I call on the Secretary of State to initiate an inquiry into why women are so underrepresented in the running of British sport. These are golden days for British sports men and women, able-bodied and disabled. It is time that the role of women in the administration of British sport was afforded the priority it deserves. The fact that governing bodies are overwhelmingly funded by the quangos that operate through government appointments, as well as the influence of Whitehall, makes this an area in which the Government can take action. I urge the Secretary of State to do so now.
Lord Kakkar
My Lords, the strong arguments for broad female membership of company boards has been very powerfully made by the noble Baroness, Lady O’Cathain. I will focus on the areas of legality with regard to the proposals that have been made, or may be made, by the European Commission, and the question of competence with regard to this area of legislation. We heard reports in late October that the EU legal service challenged the Commission over the legality of strict quotas being imposed on publicly quoted companies. The report suggested that it would be impossible under current EU treaties to impose quotas or to apply strict sanctions to companies that failed to meet those quotas.
During this investigation, your Lordships’ European Sub-Committee B also covered the area of competence with regard to the EU in this area. Legal advice available to the committee indicated that the EU was indeed competent to act in this area, but evidence received by the Minister, Jo Swinson, giving oral evidence on 15 October, indicated very clearly the view of Her Majesty’s Government that the EU did not have competence in this area. I have two questions for the Government. When entering negotiations once these proposals are finally presented, will their position be that the European Union is or is not competent to proceed in this area? Secondly, do they consider the imposition of quotas legal or illegal under European law?
Baroness Noakes
My Lords, I congratulate my noble friend Lady O’Cathain on her report and on this debate. I support getting more women on boards but I want to achieve that through merit not discrimination. The effort to get women on long lists is fine, but that is where discrimination should end. The debate often equates diversity, which is a good thing on boards, with more women. This is wrong. Female board members are not automatically more diverse than their male counterparts. Concentrating on gender diversity risks losing sight of what real diversity can contribute to board success. The report is brave to say that the economic case for more women on boards has not been made. The enthusiasts have confused correlation with causation, and I hope that Ministers, including my noble friend on the Front Bench this evening, will stick to the evidence in future and not make assertions about improved performance and productivity.
I believe that focusing on the proportion of board membership achieves diversity box-ticking without achieving sustainable change. Because the proportion of executives on boards has declined from around one-half to around one-third over the past 10 years, the focus has therefore been on non-executive appointments. However, in my view the debate needs to shift decisively towards the much more difficult issue of women executives. Why is it that management boards still look unbalanced? Why are the women who are there are often in functional roles rather than general management ones? This is partly about working practices, as the report suggests, but also about culture—as the report also suggests—and the hidden barriers in workplaces and the implicit assumptions about career patterns. These are not areas that board percentages can tackle.
Lastly, I cannot support even a reserve right of Brussels to legislate on quotas. The report should have used a little more Anglo-Saxon directness in telling the Commission where it should put its quotas.
Lord Clinton-Davis
I thank the noble Baroness, Lady O’Cathain, for all she has done to advance this cause. Arriving at a more equitable situation between men and women on boards is ultimately desirable. However, it depends on being able to recruit women of real ability. It must be done within a limited time and satisfy the requirements of all the members of the EU. I have no doubt that to impose quotas at this stage would be a mistake. Some member states prefer legislation while some combine both. Others, such as ourselves, prefer a voluntary approach.
But what if insufficient progress is made? The sub-committee said that the voluntary approach must be given a fair time to work. That is entirely right, but at the end of the day, if it does not work, quotas should be applied. Two issues are absolutely vital. First, the EU should preferably act in concert. Secondly, there is no place for backsliders.
Lord Freeman
My Lords, first, I congratulate my noble friend Lady O’Cathain on this very interesting and important debate. I will share with your Lordships my limited experience over the past 15 years in the private sector.
Mandatory quotas in France, where I have served on a major company board, have been accepted and work. In Norway, quotas have been working, to the best of my knowledge, for five to six years now. However, I do not believe in mandatory quotas applying to the United Kingdom at this stage, for a number of reasons. The excellent and energetic work of the noble Lord, Lord Davies of Abersoch, in trying to encourage professional services firms, particularly the big accounting firms and the merchant banks in the City, to recruit more women to the board seems to working. If that does not work, I withhold judgment as to whether there should be legislation, although I am not in favour of that at present.
The public sector has got a major example to set in encouraging more women to stand for or apply for positions, whether that is on the advisory boards of different departments or serving in the other parts of the public sector. We have not done enough, and Ministers should take responsibility for what I call the “pull”. As far as internal promotion is concerned, within management below boards, that is where we are failing and I very much agree with my noble friend’s comments just now. We are seeing a glass ceiling, certainly in professional firms, which is nothing to do with women deciding to leave to have families and come back later on. It is important that they are regarded as qualified candidates to rise right to the top. However, at the moment, I am not in favour of legislation in the United Kingdom.
Baroness Thornton
My Lords, I start by thanking the noble Lord, Lord Moynihan, for his comments. The noble Baroness, Lady Grey-Thompson, was worried that she would not be able to be here to make the points that he so adequately made, so I am sure that she will be extremely pleased by his remarks. He was quite right. I wondered how I could possibly squeeze any of those sporting remarks into my two minutes.
Lack of women on boards is a waste of talent and potential. It is a terrible waste of talent and potential right now. I congratulate the committee on its work, although it is a shame that it set its sights against quotas so completely. It is also a shame that the newly appointed Minister for Women and Equalities, Maria Miller, instead of taking a positive stance on this matter, as most noble Lords have done, chose to attack the Labour Party as being obsessed with quotas. We have not said very much recently about them. Instead of celebrating successes achieved and talking about how to make progress, she decided instead to have a go. That is a great shame.
My understanding of what is to come out of Europe in the next 24 hours or so is that member states already taking action will be exempt from quotas if they get up to 40% of non-execs by 2020. That is eight years away. Does the Minister think it possible for the UK, with the progress that we have made so far, to reach 40% by 2020? We should be able to.
I am proud that Labour took action to ensure that women are better represented in Parliament and politics, for example. We now have more women than all the other parties in Parliament put together. That does not mean that there is not a long way to go. How will the Government put their own house in order on these matters? I draw attention to research published in Sunday’s papers, secured by my honourable friend Luciana Berger MP. It is about government departments and their appointments at a senior level. I will share with your Lordships’ House the bottom five. BIS is the fifth bottom. It managed to recruit 25% of women in the last tranche of senior appointments that it made. Fourth from the bottom is Defra with 23.5% of women. Third from the bottom is the Department for Transport: 16.6% of its recent appointments were women. Second from the bottom is the Treasury, with 14.2%, or two out of 14, of the last senior appointments that it made being women. At the bottom is the Department of Energy and Climate Change, with one out of 15 appointments, or 6.6%. That is simply not good enough. It seems that the Government need to get their own house in order.
Earlier this year, the Prime Minister said that he did not rule out going further and using quotas as a way to get women into top executive jobs. This weekend, we saw the Minister for Women and Equalities say that that was absolutely out of the question. Perhaps the Minister in this House would clear up whether it is Ms Miller who is right or the Prime Minister.
Baroness Stowell of Beeston
My Lords, first I congratulate my noble friend Lady O’Cathain on securing this debate so swiftly after publishing the committee’s report on Friday and ensuring that it is possible for us to discuss this important issue in a timely fashion. I also congratulate all noble Lords on their contributions today. Perhaps it is a reflection of the lack of time available to noble Lords that no one else mentioned this, but I thought it striking that in this debate about women on boards we have had contributions from nine men and seven women. That is interesting in itself.
On a topic such as this, lots of statistics have been mentioned and I will mention more in the course of my response, but with the exception of the remarks just made by the noble Baroness, Lady Thornton, it was also interesting that it was noble Lords rather than noble Baronesses who spoke in support of quotas. The noble Lord, Lord Giddens, as one of those noble Lords, referred to representation in the European Parliament. It is worth noting that, in the Commission, of the 26 Commissioners 17 are men and nine are women. I am not here to speak for them, but it is none the less worth mentioning.
As my noble friend acknowledged, the Government will want to consider the report’s findings carefully and respond in detail. Our immediate reaction is that the report is thorough and comprehensive and we welcome it. I am pleased that the committee concluded that quotas are not the way forward in bringing about change and that the voluntary business-led approach that we are taking in the UK is a much more effective way of achieving long-term, sustainable change.
Noble Lords raised a wide set of issues. To respond, it is probably best to start with the Government’s position on the proposed EU action. As we all know, a proposal was put forward by Vice-President Reding in October which was not voted on. As has been mentioned, it is expected that a formal proposal will be put forward tomorrow. I will not—I am sure noble Lords would not expect me to—respond to any speculation about what might come out tomorrow, although I acknowledge, as has been mentioned, that there is a report in the FT today speculating on what might be said. Our basic position is that we welcome a discussion at the EU level about the best approaches to increase the number of women on boards. We welcome the efforts by Vice-President Reding to keep this issue high on the political agenda. We want more women on boards and in senior positions.
My noble friend Lady Scott of Needham Market was the first to raise the question of competency in the remarks today. There is a role for the European Union to ensure that good practice is shared and data are collected. There is also competency for the EU under its responsibilities to ensure equality in member states. However, we do not agree that quotas are the answer to our desired objective to have more women on boards and we will resist any effort by the European Commission or European Union to impose them. We take that position and do not support quotas because many member states have recognised the need to take action and are doing that in ways that they think best suit their own national needs. In many cases they are making progress.
The noble Lord, Lord Giddens, mentioned the success of quotas in Norway. That is right and, if it works for those in Norway, who am I to stand in their way if they think that adopting quotas is right for them? We do not think that quotas are the right approach for the UK. It is also worth noting that, while they have had success in Norway in terms of non-executive appointments, they have not had a correlation in the success of executive appointments. Because we think that member states are best placed to take action, we therefore question whether, under the principle of subsidiarity, there is a case for the Commission to impose quota legislation. The noble Lord, Lord Kakkar, asked about that and I hope that I have been able to clarify the difference. He also referred to evidence that my honourable friend Jo Swinson gave to the committee. When she talked about competency, she was talking about the role of the EU in terms of governance arrangements on boards. As to his direct question about whether imposing quotas would be illegal, that is premature. We do not know what the Commission will propose and I would not want to set out what we might do until we know exactly what it will put forward.
We do not accept that quotas are right for the UK. Member states, like business, need to be able to respond to the changing environment and varying needs of the business community. An inflexible, one-size-fits-all quota system is not the answer. That point was also made by my noble friend Lady Scott of Needham Market. If countries decide that they want to adopt quotas, that is a matter for them. When there are different types of governance arrangements for boards in different countries, one size across all areas would not work. In this country, the majority of women are not in favour of quotas. Certainly we in the Government feel that quotas address the symptoms and not the cause of women’s progress. As mentioned by other noble Lords, women want to be appointed to senior positions based on their skills and experience, not because of their gender.
The representation of women on boards and in positions of authority in all sectors is important. At this point, I pay tribute to my noble friend Lady Miller of Hendon for all her work in promoting the cause of women in Parliament. She is right to remind us that it is not just in the public sector that it is important to have women in positions of authority. This point was also made by my noble friend Lord Freeman. I take on board his point that the Government and public sector need to take the lead in this area. As to what the noble Baroness, Lady Thornton, also said about the Civil Service, clearly there needs to be progress. However, although I do not have the statistics to hand, over the last 15 years there has been quite a significant improvement in the number of women in senior roles. While I would not suggest for a moment that this progress should not continue and that more cannot and should not be done, we must not believe that when a woman moves out of a post we are taking a backward step.
As much as we believe that it is right to have women in positions of power, we need to be clear why we believe that businesses would benefit from more women in senior positions. My personal view is that women need to hear that they are wanted. We are more likely to widen the pool of talent if we can spell out to women who perhaps would not naturally put themselves forward why having them in these positions is something that we want. We agree with the findings of the committee’s report that there is no causal link between more gender diversity on boards and stronger financial performance. It is difficult to find conclusive evidence for the economic impact of increasing the number of women on corporate boards. However, the correlation between strong business performance and women’s participation in management is striking. I noted the example given by the noble Lord, Lord Bilimoria, and his experience on the board on which he sits.
The report of the noble Lord, Lord Davies, has been referred to on several occasions. It is clear that the case for greater diversity hinges not only on the link with improved corporate performance, but also on ensuring that companies access the widest talent pool, are as responsive as possible to the markets that they serve and look to improve corporate governance. My noble friend Lady O’Cathain referred to other issues, including dealing with groupthink.
The Davies report is the approach that we are following here in the UK to try to improve the representation of women on boards. We believe that it is right to take the voluntary business-led strategy set out by the noble Lord, Lord Davies, in his report. As noble Lords know, he set out 10 recommendations aimed at increasing the number of women on boards and, 18 months on, women now account for 17.3% of non-executives in the FTSE 100 and 11.3% of FTSE 250 board positions, which is real progress. There are now only eight all-male boards remaining in the FTSE 100, which is down from the 21 of 18 months ago.
The voluntary code of conduct written by the executive search firms has played a key role in the progress that we have seen in the numbers of women attaining boardroom positions. It ensures that women are treated fairly within the recruitment process. In terms of our own learning, this is certainly something that we seek to share with other member states. However, a lot more still needs to be done if we are to meet the Davies target of having 25% on FTSE 100 boards by 2015.
I will make a couple of additional points on this. The noble Lord, Lord Haskel, pointed to the suggestion in the committee’s report of a target of 30% by 2020. In response, I would say that the report of the noble Lord, Lord Davies, was very much about minimum targets. That 25% is a floor, not a ceiling. Furthermore, the noble Lord and his committee went to great lengths to set a target that was both stretching but achievable by 2015. However, that does not rule out the possibility of going further. I would certainly not want to give the impression that that would be the end of the matter.
The noble Lord, Lord Clinton-Davis, asked whether quotas should be used if targets do not work. He is right to ask that—I think that the noble Baroness, Lady Thornton, also raised the question. It has been said both by the noble Lord, Lord Davies, and by the Prime Minister that there remains a last resort if all else fails. However, we want to pursue this voluntary approach and there is evidence that it is working. The most important thing is that if ever this country decided that it wanted to set targets, we should take that decision for ourselves and not have it imposed on us by Brussels. The noble Lord, Lord Giddens, asked whether there would be sanctions if the 25% target was not reached. My response is that, once we start imposing sanctions, we are inevitably introducing quotas by another name.
The pace of change needs to be accelerated. What has been acknowledged is that, while we are making real progress in the non-executive ranks of boards, we need to see much greater change among the executive director roles. That was mentioned by my noble friends Lady Noakes and Lord Freeman. Currently, women account for only 6.6% of those at executive director level of FTSE 100 companies, which is very disappointing. Addressing this issue is complex and it will take some time to see actual progress. However, the 30% Club and the Women’s Business Council—a group put together by this Government—are looking at this issue.
I went to a press launch today where the Conservative Women’s Forum announced that it would be looking into the barriers preventing more women from reaching senior executive positions. I think that we all want to understand which common barriers get in the way of allowing women to get into those senior management roles. As the Deputy Prime Minister announced today, initiatives such as greater choice around flexible working and flexible leave are issues that will have a positive effect once we are able to make progress in that area.
Because I am running out of time, I will just acknowledge that my noble friend Lord Moynihan mentioned women in board positions in sport. I will of course raise that with my right honourable friend the Secretary of State. I also want to make the point that transparency and monitoring are a very important part of ensuring that we make progress. I note what the noble Baroness, Lady Ford, said about seeing whether the new reporting requirements could be extended to search firms. I am not able to commit to that, but it is an interesting idea.
We will continue to work with businesses, investors, directors and chairmen to spread the word that diversity makes economic sense. Some success has been achieved, but we need to increase the pace and gain greater momentum. My noble friend Lady Miller said that women are on the edge of a breakthrough. I hope that that is the case. Certainly, boards can change, and they can and will change without regulation. If I have not been able to cover any point that has been raised today, I will write to noble Lords.
Crime and Courts Bill [HL]
(12 years, 1 month ago)
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Lord Marks of Henley-on-Thames
My Lords, I shall speak also to Amendments 35, 45, 46 and 47. These amendments would broadly remove the restriction of deferred prosecution agreements—DPAs—to corporate bodies, partnerships and unincorporated associations by permitting DPAs to be entered into with individuals and would instead restrict DPAs to cases where a sentence of imprisonment would not be likely on a guilty plea. The later amendments in my name, along with the amendment in the name of the noble and learned Lord, Lord Goldsmith, would widen the offences for which DPAs might in future be permitted beyond the range of financial or economic crimes.
To put these amendments in context, I welcome the innovation represented by the introduction of DPAs into this country by this Bill for two principal reasons. First, they are an effective device to ensure that criminal behaviour—sometimes very complex criminal behaviour—is met by a sanction. The compulsory imposition of a financial penalty, which is the subject of an amendment in my name in the next group, would ensure that that was the case. They bring about a saving of trials which in this country are, and have been, notoriously uncertain of outcome, as well as extremely expensive, so that they have used up a very large part of the criminal justice system’s overall budget. Secondly, they offer an opportunity for prosecutors to agree a programme of compliance requirements with offenders, and thus offer a chance to change behaviour, so they are part of the toolkit of the rehabilitation revolution, about which we have heard so much in the context of the Bill.
DPAs are for use only in suitable cases. It is important to avoid the worst excesses of such arrangements in the United States where it has been said that they have been used as the rich man’s route to plea bargaining. I suggest that they can and should be used to achieve voluntary compliance in the future with the requirements of the law across a range of fields. The limit on that is that it should not be acceptable for DPAs to be agreed where otherwise a sentence of imprisonment would be appropriate.
It follows that Amendment 23 removes the requirement that a DPA may not be agreed with an individual. In support of that amendment, I ask rhetorically the question, why the distinction? Why should it be that a criminal offence by a corporation, a partnership or an unincorporated association should be treatable by a DPA, but not an offence by an individual? As I suggested in the Second Reading debate we had in Committee, the question is not whether an offender is an organisation or an individual but whether the nature of the offence is suitable for a DPA. The distinction has been drawn that an individual can be imprisoned and an organisation cannot. But I suggest that that distinction is artificial because it is of course possible to provide that DPAs will be entered into only in cases where imprisonment would be unlikely in the case of an individual.
At Second Reading, my noble friend Lord Phillips of Sudbury suggested to me that nothing in the Bill explicitly stated that DPAs were not appropriate for an offence warranting imprisonment. The answer is that in the Bill as it stands such a provision would be unnecessary because it applies only to corporations, partnerships and unincorporated associations. But if it were extended to individuals, I suggest that it would be necessary to make it clear that it was not to be seen as an alternative to imprisonment.
I quite take the point made by the noble and learned Lord, Lord Goldsmith, at Second Reading, that, because of the behaviour-changing arrangements that can be made in DPAs, they might in some circumstances be suitable for drugs offences and the like which would otherwise warrant a sentence of imprisonment. At this stage at any rate, with this very new procedure, I would be wary of introducing a system that could be seen as allowing offenders effectively to buy their way out of a sentence of imprisonment.
Hence, under Amendment 35, we confine DPAs to offences not warranting such a sentence even if the limit to individuals were to be lifted. That would happen at the preliminary hearing where, on the application by a prosecutor for a declaration that a DPA might be appropriate, that would not be able to be granted were a sentence for imprisonment to be appropriate.
Amendments 45, 46 and 47 in my name and Amendment 44 in the name of the noble and learned Lord, Lord Goldsmith, concern the types of offences that might be made the subject of DPAs. The noble and learned Lord’s amendment would effectively allow the addition of any offence by removing the restriction to economic and financial crime. I should make it clear that my amendments are sample amendments only. They are not intended at all to be exhaustive and I have not attempted to conduct a trawl through the statute book to look for appropriate offences. They are intended to be probing and to give examples only of the way in which categories of offences might be usefully made broader.
Amendment 45 suggests that,
“a breach of regulations which is not punishable by imprisonment”,
taken at its broadest, might be an appropriate amendment. Amendment 46 deals with environmental offences under the Protection of the Environment Act. Some of those are punishable by imprisonment as well as by fines but, were the restriction to be only to those offences which would not be likely to warrant a sentence of imprisonment, that would be appropriate.
Similarly, health and safety offences seem to me—as indeed they seemed to be to the noble and learned Lord, Lord Goldsmith, at Second Reading—to be an appropriate area for such broadening of the offences. I have some experience from practice of the way in which the Environment Agency operates in respect of cases of environmental pollution. In fact, it has been operating for some time on the basis that it will agree not to prosecute offenders in circumstances where the offenders agree to pay compensation to clean up pollution and to put in place with the Environment Agency programmes of compliance with legal requirements for the future. That system works well and I suggest that it could be extended on a formal basis, as is suggested in the schedule, far more widely.
I ask noble Lords to support these amendments, and for the Minister to consider taking them back and doing something with them.
Lord Phillips of Sudbury
I am not getting at my noble friend because he referred to my intervention last time, but I hope that he will forgive me if I am misunderstanding this. Perhaps other noble Lords are also unsure as to the impact of the removal of the words, in paragraph 4 on page 261, line 32,
“but may not be an individual”.
Does that not mean that the only persons who may enter into a DPA with a prosecutor are the ones mentioned, namely,
“a body corporate, a partnership or an unincorporated association”,
so the removal of the words in his amendment will not actually make any change?
I see that my noble friend has tabled Amendment 24, which does refer to individuals. However, I wonder whether that is not, so to speak, negatived by the removal of those words; but, as I said, I may well have got this wrong.
Lord Marks of Henley-on-Thames
My Lords, my noble friend is, as always, entirely on the ball. My amendment is wrong in exactly the way that he mentioned. It should be “or an individual” rather than,
“but may not be an individual”.
So the words that ought to go are, “but may not be”, to be replaced by the word, “or”. For that, I apologise, and I hope that I will be allowed to alter my amendment accordingly. I am not proposing to press it in any event, but we can bring it back on Report if necessary, in a better form.
Lord Goldsmith
My Lords, I will speak to Amendment 44 standing in my name, but I want to speak to Amendment 23 as well. Before I do that, and so that I do not have to repeat this on later groupings, I want to repeat the declaration of interest that I made on 30 October at col. 575. I also want to repeat my belief that this is a very useful addition to what the noble Lord, Lord Marks, has described as the armoury for prosecutors and for law enforcement agents. I think that that is absolutely right. On 30 October, I explained how I had been thinking about this when I was in office and, indeed, I introduced at the other end of the scale of offending something that was equivalent: conditional cautions. I believe that this is worth while and I think that the former Solicitor-General, Sir Edward Garnier, deserves credit for having pushed this forward. I had the benefit of talking to him about this before these amendments came forward into this Bill. So I do support them in principle. The few amendments that I have put down are designed to try to make it as workable as possible, given that the principle is there—others may take a different view about the principle—and to make it as useful as possible.
There are some technical amendments but also one or two that relate to the scope of DPAs. I want to underline the fact that I am very grateful to the noble Lord, Lord Marks of Henley-on-Thames, who has made this point. The important issue about a DPA is that it is not just punishment. It can become punishment, but it is about changing behaviour and about compliance. It is a carrot and stick approach.
On the point raised by Amendment 23 about whether this should be capable of being extended to individuals, I repeat what I told the Committee on the previous occasion, that it was actually in the context of individuals that I first saw the benefit of arrangements of this sort. The noble Lord, Lord Marks, has referred to drug offences, and he is quite right. I saw in operation in the United States deferred prosecution agreements being used as a powerful tool to change the behaviour of people who were drug offenders and who seemed incapable of holding down a job and therefore living a life beneficial to themselves, their family and the general public. This was achieved by the combination of a strong statement that if they did not comply in particular ways—taking drug tests regularly, staying clean, following the advice of probation officers or the equivalent—they would suffer serious imprisonment, and the inducement that if they did comply, not only would they not go to prison but they would not have a conviction either. That could be very important to them in terms of getting jobs in the future. On more than one occasion, I watched judges who were speaking on a very direct basis to offenders, reminding them of their obligations and saying, “This is what you have got to go through. This is how you have to comply if you want to get the benefit of this arrangement”. So I think that this is potentially very valuable for individuals, and I ask the Government to think again.
The noble Lord, Lord Phillips of Sudbury, is of course right about the technical issues on the amendment, but I think that the purpose behind it is very clear and, if the principle were accepted, I am sure that the Government would sort out the precise wording to make it work. I do not think that the noble Lord can change the amendment while on his feet.
In the same context, I turn to Amendment 44 in my name.
Lord Phillips of Sudbury
I am most grateful to the noble and learned Lord for giving way. Does he not have a residual concern that if one allows individuals into this plea-bargaining regime it could give rise to the sort of scandal that my noble friend Lord Marks referred to of rich, powerful and well lawyered individuals escaping the opprobrium of prosecution and appearance in court that might otherwise be the way forward?
Lord Goldsmith
I am not concerned about that for this reason. There are two very powerful safeguards in the Bill that should prevent that. First, the DPA has to be agreed by a prosecutor and, as the debate on the previous amendment demonstrated, not just any old prosecutor but either the Director of Public Prosecutions or the director of the Serious Fraud Office—or, possibly, a person designated by the Secretary of State. I leave aside the locum tenens that might come in; the Minister will tell us at some point how likely that will be. First, the prosecutor has to decide whether it is appropriate. Having spent, as the Committee will know, a lot of time with prosecutors when I was in office, I had a high regard for their understanding of what the public interest and public reaction is. They know when people need to go to prison, if they are convicted, and they know when it is appropriate for them not to do so. We can rely a great deal on them to decide which cases are appropriate and which are not.
There is then a second safeguard. Under the Bill as it stands, it has to go to court twice, and the court has to be satisfied that it is appropriate and proportionate for such a step to be taken. Those safeguards mean that one can be much more relaxed about the risks to which the noble Lord, Lord Phillips of Sudbury, refers. Of course, I would entirely agree with him that if we had a situation in which the system operated only to the benefit of the rich it would be wholly unsatisfactory. That is one reason why I think that extending the ability of DPAs so that they cover the sort of offence that I have referred to and individuals would meet part of that concern. If anything, I am worried that by limiting this to economic crimes for companies and partnerships one sends the very message that the noble Lord, Lord Phillips of Sudbury, does not want to be sent. I invite the Government to think very hard about that.
Those are the two safeguards. My personal preference would be not to add any other barriers. I would not add the barrier of the offence being likely to carry a sentence of imprisonment. As the noble Lord, Lord Marks, recognised, if this was extended to cover the sort of case with which I have been concerned it would rule those cases out. I would leave it to the good sense, judgment and sense of public interest of the prosecutor and the court to limit the cases. For the same reason, I would leave the ambit of cases that could be covered open. I would not try to cherry pick through the statute book to find other offences that might be appropriate. I would leave that to the prosecutor and then to the court to say whether it was appropriate to use it for this sort of environmental offence or that sort of health and safety offence. I predict that fairly soon we will have a code giving guidance, and no doubt there will be debates in this House and in other places from time to time as well, and we will see the sort of offences that are appropriate. It is a very useful tool. Other dispositions are not normally limited in this way to particular offences, individuals or specified periods in prison. When I move my amendment, I will invite the Government to consider those points very carefully.
Lord Beecham
My Lords, at Second Reading I expressed misgivings about the introduction of this new concept which were shared by other Members of your Lordships’ House. However, it is clear that the proposal will go ahead. It is certainly possible for us to live with that and, indeed, to seek to improve the legislation on the way.
I listened with great care to the reference of my noble and learned friend Lord Goldsmith to the desirability of extending the DPA process to individuals. However, I am still not quite persuaded about that. I certainly would like to see how the original intentions of the Bill are carried out and what effect they have on what I take to be the basic approach of the Government, whose rationale is that in serious cases, which take an inordinate amount of time and cost an inordinate amount of money to pursue, adopting this measure might achieve a swifter resolution of the problem and, as the noble and learned Lord rightly reminded us, help to pursue the desirable objective of changing behaviour. One particularly looks to that approach being applied in the corporate field. Only today we have seen across the pages of the Guardian an apparent example of the kind of corporate misconduct that could well lead to a massive investigation. One might think that that is an ideal case for the application of this new principle. However, the new principle departs from the traditions of our jurisprudence—as do other things that we shall discuss shortly, but not in connection with this Bill—and is not something to be embarked on lightly. In particular, we need to continue to bear in mind the state of public opinion as it might develop.
I quite take the point that it is not necessary or desirable to confine the scope of this new procedure to economic and financial crime, although I suspect that that is what has triggered it. I am particularly attracted by the references of the noble Lord, Lord Marks, to environmental issues. I think of some of the cases that we have debated in other contexts that involved damage to the environment. Those cases can also be formidably expensive and, almost by definition, difficult to pursue. The noble and learned Lord, Lord Goldsmith, is right. We cannot list every conceivable item. There has to be an element of discretion. It would be sensible for this matter, and its extension, to be the subject of orders and therefore subject to parliamentary approval. I agree with the noble and learned Lord that Amendment 35 in the name of the noble Lord, Lord Marks, probably goes too far.
I want to touch briefly on Amendment 48 in my name which seeks to establish a sunset clause. This is one of three amendments which are partly designed to reassure the public that this measure is not undertaken lightly by the Government and Parliament and that, novel as it is and potentially almost offensive as it could be to some people’s sense of justice, it will be subject to very careful review which is more extensive than the post-legislative scrutiny now available. My amendment would compel a proper parliamentary review of the whole issue if, in the light of experience, it is thought appropriate to renew the provisions. I suggest a five-year period because by definition many of these cases take a long time and it will take time to see how the new system beds down.
The Minister was not oversympathetic to that suggestion on the previous occasion we discussed this matter. However, I hope that it will be given consideration because we cannot lightly embark on this massive change, with the implication that people—corporations rather than individuals—can buy their way out of difficulty. I will return to that thought in relation to other amendments. I hope that the Government will look sympathetically at some of the points that have been made, notably about the extension beyond simply economic and financial crime, and in particular at the possibility of a sunset clause as proposed in my amendment.
Lord Goldsmith
The noble Lord referred to someone buying themselves out of trouble, or whatever it may be. It is the same sort of idea that the noble Lord, Lord Phillips of Sudbury, raised. Would the noble Lord agree that as well as a financial penalty, a DPA could well provide an obligation to comply in particular ways in future? That is not the same thing as buying your way out of trouble. It is accepting a form of conduct in future that hopefully would be beneficial to the public and everyone else and is not just a matter of pounds in your back pocket.
Lord Beecham
I am talking about public perception, which might well be less grounded in those more fundamental objectives than we might give it credit for when debating it in this environment, dominated as it is—looking around the Chamber—by lawyers. We have to carry the public with us. The noble Earl, Lord Attlee, is aghast: unfortunately for the legal profession, perhaps, the lawyer gene apparently did not pass from his grandfather. We have to take public perception on board and it is in that sense that I use the term.
Lord Phillips of Sudbury
My Lords, forgive me for speaking after the noble Lord, Lord Beecham, but I hope to add a few words to what he said because I was slow on the uptake and did not realise that the last amendment on this schedule is in this group. I endorse 100% the argumentation of the noble Lord, Lord Beecham, for the five-year review. I think I am alone in this House in being fiercely opposed to the whole schedule on principle. I understand the extremely persuasive arguments advanced by all who have spoken tonight—shortly to be enlarged upon by my noble friend Lord McNally—but I am profoundly concerned that we are stepping into a realm that we have no past experience of and which could work out to be far from the hopes of the Government in advancing this proposed plea-bargaining regime.
There are a number of unknowns here that could, in the event, show that, overall, Schedule 17 works against the public interest. There should be a pause after five years so that that can be looked at very clinically, impartially and clearly so that we can take stock of what is a revolutionary change in our criminal law. Let us make no bones about it: this is one of the greatest revolutions in our criminal law system in 100 years. It is not a change that has been signalled well to the public. There has been extraordinarily little comment in any of the broadsheets, magazines or television programmes. In fact, I have not seen reference to this innovation anywhere. For those reasons and many others, I hope that my noble friend the Minister will accede to the amendment. After all, if the Government are right in their arguments for Schedule 17, they have nothing to fear in a five-year review.
Lord Ahmad of Wimbledon
My Lords, I welcome the broad support for the introduction of DPAs. I align myself with the words of the noble and learned Lord, Lord Goldsmith, about my honourable friend Edward Garnier in terms of the work he has done in this field.
My noble friend Lord McNally and I have listened very carefully to the arguments and discussions that have taken place on the amendments in front of us. I can assure your Lordships’ House that this Government are about listening and hearing about experiences. While the proposals are quite specific at the moment, this does not rule out returning in future to the extension of the remit of DPAs, particularly where issues beyond economic crime are concerned.
Lord Goldsmith
More than once in this debate it has been said that this is an entirely novel approach. I invite the noble Lord to consider the fact that we already have deferred sentences, under which judges say, “If you do certain things”—and they are supposed to say what they are—“over the next three or six months, I will take a different course”. We have suspended sentences. I have already referred to the fact that we have conditional cautions. I challenge the proposition that the Government’s proposal is so novel, and invite the noble Lord and his office to consider that.
Lord Phillips of Sudbury
That applies in a case that has been tried in open court and a conviction has been made. It is vastly different from the plea-bargain situation where there is no open-court hearing, no obloquy and no public shame.
Lord Ahmad of Wimbledon
I thank my noble friend for his intervention. As I said in my opening comments, it is not something that the Government are entirely ruling out, but it is the Government’s view at this stage that because this is something new to our justice system, the provision would be focused on organisations. However, I hear very clearly and my ears have not been closed to the points made by the noble and learned Lord. It is a matter that we will examine at some future point in time when this particular DPA scheme is reviewed, as I am sure it will be.
Generally speaking, the law on corporate criminal liability is such that, in order to achieve a conviction, a prosecutor must show that the “directing mind and will” of the organisation satisfies the necessary fault element for the offence. This is often difficult to show, especially in increasingly large, globalised and more sophisticated organisations. Cases can often involve lengthy and protracted investigation, with associated high financial and resourcing costs, with no guarantee of success.
Our proposals will not change the law on corporate criminal liability. However, they will offer an additional route for holding to account organisations that are willing to engage in the process and might otherwise face prosecution. These issues are not present to the same extent in relation to prosecuting individuals. However, I have noted with great interest what the noble and learned Lord, Lord Goldsmith, has said about his personal experience and the experience of the United States in this regard.
Furthermore, one of the elements that the Government considered as regards prosecuting economic crime committed by organisations is perhaps not the same as that which applies to other areas such as health and safety. Therefore, an extension of the proposals to other forms of offending does not appear necessary at this time. In particular, we are not persuaded that a DPA would be the appropriate response where direct physical harm has been caused to an individual by the organisation’s wrongdoing.
As this process is new to our criminal justice system, the Government would like to tread carefully. Our view is that a narrow, targeted approach is the best course of action to begin with. As I have already assured the House, I shall keep the points raised by my noble friend and the noble and learned Lord, Lord Goldsmith, under review. At a future time, should a case be made for applying deferred prosecution agreements to individuals, or for applying them to a broader range of offences, as the noble Lord, Lord Marks, has mentioned, it is right that we come back to Parliament with the necessary primary legislation to extend the scope of the scheme rather than seeking to do it through secondary legislation.
The noble Lord, Lord Beecham, spoke to Amendment 48. The Government’s view is that that amendment is unnecessary. We have already provided an undertaking that we will review the operation of the scheme following its introduction, which is of course essential given the novelty of DPAs in our criminal justice system. Returning to a point that was raised by my noble friend, the Government are in any event committed to reviewing all new primary legislation within five years of Royal Assent. That was the previous Government’s policy on post-legislative scrutiny. We do not need to put such a review on a statutory footing or to sunset the scheme provided for in the Bill. If, following the review, changes to the scheme are necessary or desirable, we can of course bring forward further primary legislation at that stage.
The noble Lord, Lord McNally, and I have listened very closely to the compelling arguments that have been made. With the assurances that have been given to ensure that the matter is reviewed, I would be grateful if my noble friend Lord Marks and the noble Lord, Lord Beecham, would agree to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, I hear the assurances that the Government are listening and I beg leave to withdraw the amendment.
“( ) A DPA must impose on P a requirement to pay to the prosecutor a financial penalty broadly comparable to the fine that a court would have imposed on P on conviction for the alleged offence following a guilty plea.”
Lord Marks of Henley-on-Thames
My Lords, I shall speak to Amendments 24, 25, 26 and 27. That suite of amendments has one purpose which is to make a financial penalty compulsory as a requirement of a DPA.
I suggest that there is an anomaly in the Bill as drafted. There is no compulsion to agree a financial penalty. It is one of a series of optional requirements. However, if a DPA contains a financial penalty, that penalty has to be broadly comparable to the fine that a court would impose on a plea of guilty. Therefore, the DPA has to have either no financial penalty at all or a full financial penalty comparable to the penalty that would be imposed by a court. The reason why I suggest that a financial penalty should be compulsory is to maintain public confidence in the new system and to prevent DPAs being seen as a soft option. That is particularly important if they are to be used only for economic and financial crime by corporations rather than more widely. At the moment, if a DPA can be agreed between an offender and a prosecutor without being subjected to the penalty that a court would impose, the innovation runs the risk of being tainted by the allegation that it amounts to no more than plea bargaining, the sort of suggestion made by my noble friend Lord Phillips of Sudbury.
I entirely accept that there might have to be an exception allowed for cases of genuine inability to pay, either at the agreement stage or at the stage when a breach or possible variation is considered under paragraphs 9 and 10, or at both stages. Subject to that qualification, I suggest that a financial penalty comparable to a court fine in lieu of prosecution should be at the heart of the new arrangements. I beg to move.
Lord Goldsmith
My Lords, I will make some observations about the noble Lord’s amendments in this group. I shall speak also to Amendments 28 and 29 in my name. It is worth reminding ourselves what the requirements of a DPA may be, as set out in paragraph 5(3). We have spoken as if the only requirement is likely to be a financial penalty. We talked about paying the price and buying one’s way out of trouble. However, a number of requirements may be included, not just the payment of a financial penalty. The words “financial penalty” appear in paragraph 5(3)(a). Paragraph 5(3)(b) refers to a requirement,
“to compensate victims of the alleged offence”.
Paragraph 5(3)(c) refers to a requirement,
“to donate money to a charity or other third party”.
Paragraph 5(3)(d) refers to a requirement,
“to disgorge any profits made by P from the alleged offence”—
no doubt to the person from whom they have been made, not to the prosecutor.
Paragraph 5(3)(e) refers to a requirement,
“to implement a compliance programme or make changes to an existing compliance programme relating to P’s policies or to the training of P’s employees or both”.
I wish to underline that that can be a very powerful tool for changing behaviour, but also an onerous tool. Frequently in cases where such a system exists, a monitor is required. The company then has to pay for an individual—the noble and learned Lord, Lord Woolf, was such a person—who will have full access to what it is doing and whose job it will be, from inside, to see that it is complying with the programme. That can be a very powerful tool for making sure that it changes its behaviour—but, as I said, also an onerous one.
Paragraph 5(3)(f) refers to a requirement,
“to co-operate in any investigation related to the alleged offence”,
and paragraph 5(3)(g) to a requirement,
“to pay any reasonable costs”.
I invite the Government to reconsider even their proposal, whether or not they accept the amendment of the noble Lord, Lord Marks. Possibly this is one of the more important amendments being considered tonight. I looked back at the Government’s response to the consultation on this offence. I noted from page 28 of the paper that more than half the respondents to the consultation did not agree that there should be a fixed minimum payment for a financial penalty. I wish to understand why, given that the majority of respondents took a different view, the Government have committed to this.
I am concerned about several things. First, if we impose this restriction, the DPA may be used in fewer cases, because it will become unattractive to agree to it. I recall that in a previous debate, in answer to a question from me, the noble Lord, Lord McNally, confirmed that the Government saw DPAs being used even in cases where the defendant did not admit guilt. In those circumstances, it becomes surreal to start talking about the financial penalty that would have been imposed on a defendant if they had pleaded guilty when they have not.
Secondly, the cost of the compliance programme—in terms not just of money but of obligation—can be sufficiently significant that it justifies saying, “No, you do not have to pay the same financial penalty”. I will also ask a question about financial penalties. That is why I read out the list. “Financial penalty” is only one requirement on it. I fear that by imposing this obligation, we may create a distorted view. For example, somebody may say: “What about the victims?” The answer may be: “I am afraid that I cannot afford to compensate them because you are making me pay a financial penalty which is commensurate with what I would have been fined, so there is no more money, or at least I am not giving you any more”. That is quite contrary to the principle in the criminal law that where financial measures are made, you treat the fine as the second thing, and if there is money for compensation, you try to get that paid first. I am concerned that this will have a counterintuitive and unsatisfactory effect.
I would avoid this sort of perverse incentive. I would avoid putting on the straitjacket. Of course I take the point about public confidence—although the more in this debate we invite the public not to have confidence, perhaps the more they will not have confidence. Perhaps we should start looking at this in a different way. My answer to this—as it was to the previous amendment—is that there is a double lock on a DPA in the form of the most senior prosecutors and the court. That is sufficient to ensure that what comes out of the DPA is satisfactory. I therefore do not support the amendment of the noble Lord, Lord Marks. My Amendment 28 is designed to have the effect that the financial penalty should not be more than the fine would have been, which is obviously perfectly reasonable.
Amendment 29 deals with a somewhat different but equally important point. It seeks to change the provision in sub-paragraph (5) that a,
“DPA may include a term setting out the consequences of a failure by P to comply with any of its terms”,
and convert it to an obligation not a permission. This is on the basis that the DPA should state what will happen to you if you do not meet its terms—that is what this is all about—in the interests of both the public and the person who is on the receiving end of the DPA. It is an amendment of a different order but I invite the Government to consider it.
Lord Beecham
My Lords, I broadly sympathise with the amendments of the noble and learned Lord, Lord Goldsmith, on this part of the Bill. In particular, it is important to recognise that there needs to be some incentive—this is the American experience—for potential defendants to come to terms, and the noble and learned Lord’s formulation is in line with that. However, given that the Bill refers to the penalty being broadly comparable to a sum that might be levied by way of a fine on conviction for an alleged offence following a guilty plea, there is an implicit assumption that there will be a one-third discount from what would be the fine after a conviction. That is the way in which the system appears to work, so we are perhaps not terribly far apart in any event.
I am less clear about the attraction of Amendment 26. I do not quite follow why the payment to the prosecutor of a financial penalty should be taken out of the Bill. The prosecutor is not personally going to pocket the money, I assume.
Lord Marks of Henley-on-Thames
Perhaps I may help. Amendment 26 is part of a suite of amendments. Amendment 24 provides for the compulsory imposition of a requirement to pay the prosecutor a financial penalty broadly comparable to the fine a court would have imposed. The amendments can only be read together. If you have Amendment 24, you do not need paragraph (3)(a).
Lord Beecham
I will not take the time to check that. I shall accept the noble Lord’s remarks and leave it to the Minister to respond.
Lord Marks of Henley-on-Thames
On this occasion I am certain that I have got the drafting right.
The Minister of State, Ministry of Justice (Lord McNally)
Dear, dear, dear. I noticed that my noble friend Lord Ahmad at one point referred to the noble and learned Lord, Lord Goldsmith, as his noble and learned friend. In some ways, both Front Benches are grateful for the noble and learned Lord’s interventions and draw on his experience in this area. In that spirit, I shall take another look at both of his amendments and take advice on them.
Paragraph 5 of Schedule 17 sets out both mandatory elements that every deferred prosecution agreement must include—namely, an agreed statement of facts and an expiry date—and a number of optional elements set out as a non-exhaustive list of potential terms.
As my noble friend Lord Marks has explained, Amendments 24 to 27 would require a financial penalty to be agreed and imposed in every case; whereas, under the Government’s proposals, that is a matter to be agreed by the parties depending on the particular circumstances. The Government have taken the view that, for the purposes of this approach to dealing with alleged criminal wrongdoing by organisations, there must be flexibility to deal with each case individually. As such, our intention has been, as far as possible, to limit the mandatory elements of a deferred prosecution agreement. I defer to the noble and learned Lord, Lord Goldsmith, on whether it is a wholly new approach. As he says, there are at least some areas of our law that are pathfinders for this. However, I think that it is a new approach to economic crime.
It is important to remember that this is a voluntary process and that the outcome will be an agreement between the prosecutor and an organisation, as distinct from court-imposed sanctions. It is essential, therefore, that the parties are able to negotiate terms in an individual case that are tailored to the particular type and extent of the alleged wrongdoing, as well as to the wider circumstances of the case and the organisation, including its financial circumstances. Ultimately, the package of terms will be the subject of judicial scrutiny and the judge will consider whether, taken as a whole, they are fair, reasonable and proportionate. If the judge is not of that view, he or she will not approve the agreement.
A financial penalty is just one of the potential terms of a deferred prosecution agreement, and is one of five of the suggested terms which are monetary in nature. While the illustrative terms in paragraph 5 are not listed in order of priority, it is the view of the Government that any terms of an agreement relating to compensating or making reparation to victims should take priority over the other monetary terms, including any financial penalty. Not all of the suggested monetary terms would be appropriate or desirable in all cases. In addition to, or instead of, monetary terms, an agreement may include obligations to improve corporate governance and compliance and to provide for implementation of the agreement’s terms to be monitored, the cost of which would fall on the organisation, or indeed anything else which the parties can agree is an appropriate response to the alleged wrongdoing. It will be for the parties to negotiate, and ultimately for the courts to approve, a range of terms that are fair, reasonable and proportionate. While a financial penalty is very likely to be imposed in the majority of cases, we do not consider it necessary or desirable to require a financial penalty to be agreed and imposed in every case.
Amendment 28 concerns the level of financial penalty payable under the terms of a deferred prosecution agreement. Where such terms are to be included in an agreement, the sum payable should be broadly based on the fine that would have been imposed for the alleged offence on a conviction following a guilty plea. Where available, the court would follow relevant offence-specific sentencing guidelines, as well as guidelines on general principles of sentencing, including the reductions in sentence for a guilty plea, as the noble Lord, Lord Beecham, pointed out. When considering a financial penalty term of a DPA, it is expected that both the parties and the court would have regard to the same guidelines, as well as the balance of other monetary terms of the DPA. This is to ensure as far as possible that any financial penalty under a deferred prosecution agreement would be broadly comparable to a fine likely to be imposed by a court following a guilty plea.
The effect of Amendment 28 would be to place a cap on the maximum financial penalty that could be negotiated under a deferred prosecution agreement. Given that it will be impossible in any particular case to estimate accurately the likely fine the court would impose, it would in practice be undesirable to seek to limit the freedom of the parties to negotiate the amount of a penalty in this way. In any event, the amount arrived at will have to be agreed by both parties before seeking the court’s approval and the court would need to be satisfied that any financial penalty is fair, reasonable and proportionate, such that we do not think specific further provision is necessary. But as I said to the noble and learned Lord, Lord Goldsmith, I will look at both of his amendments.
Amendment 29 relates to the provisions we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with a deferred prosecution agreement. We have included this provision as a way of dealing with non-compliance capable of being objectively determined by the parties, for example, where the organisation has made a late penalty payment. The aim is for the parties to remedy the non-compliance without recourse to the court, for example, by way of punitive interest in relation to the late payment. Such a term would be negotiated alongside all of the other terms of an agreement and approved by the judge. We do not envisage that such a term will be appropriate in all cases. Whether or not a deferred prosecution agreement includes such a term, paragraph 9 provides a formal procedure for breach and non-compliance which will be the most appropriate way for most instances of non-compliance to be dealt with.
I hope that the Committee will agree that it is desirable to ensure that agreements are tailored to individual cases, with judicial scrutiny of all of the proposed terms to ensure that they are fair, reasonable and proportionate, and that it would be inappropriate to make any of the terms of deferred prosecution agreements mandatory in all cases. And as regards setting the amount of a financial penalty term and inclusion of a consequences term, I trust that my explanation has reassured noble Lords. But I shall read in Hansard what the noble and learned Lord, Lord Goldsmith, has said, and perhaps he will look at what I have said. We can see how they match up or where we should move.
Lord Goldsmith
Perhaps I may say a sentence because it may help the noble Lord and his officials. I had in mind in Amendment 29 that the DPA should say, “And if you fail to comply with this, then the prosecution can take place and you may be proceeded against”. That is the sort of consequence I am thinking of. I understand that the noble Lord is talking about something else. So with that expansion of my meaning, I am grateful that it will be looked at again.
Lord McNally
That is extremely helpful. With my advisers, I will look at the points that the noble and learned Lord has made. We do not go behind the Chair in this House, but he knows what I mean. I shall see if we can match up. I have found his remarks very helpful.
Lord Marks of Henley-on-Thames
In relation to my amendments, I understand what the Minister has said. The only point I would make is that it is possible to take the middle position, which is really the position that the noble and learned Lord, Lord Goldsmith, has put and which my noble friend has said he will look at. As the noble and learned Lord suggests, the anomaly is where you can have an all-or-nothing financial penalty that still exists, so it must be sensible to have a variable penalty if the noble Lord does not accept my Amendment 24.
Lord Beecham
“( ) Prior to the implementation of the provisions under Schedule 17, the Sentencing Council shall lay before Parliament its proposals for the setting of financial penalties, which must be approved by each House of Parliament.”
Lord Beecham
My Lords, I am of course short, and I will now be brief. The amendment echoes the concerns that some of us have about the introduction of this new concept and the public reaction to it. It is designed to reassure the public that financial penalties, which as the Minister has just reminded us will not apply in every case, and nor should they, will nevertheless be a salient feature of the new regime and, I suspect, the one that will attract the most media attention. In contrast with subsequent amendments, the suggestion here is that there should be only one occasion on which the proposed financial penalty guidelines should have to be approved by Parliament. In his letter to me the Minister confirmed that guidelines will be laid before Parliament. That does not imply a vote, although it might imply a discussion. But on this first occasion, and only this first occasion, given the novelty of the concept it would be sensible and would help to ease the transition into the new system and reassure the public if there were specific parliamentary approval of the guidelines—not, of course, for specific penalties for particular cases, but the broad parameters of how matters might be taken forward.
In respect of other matters, which we will come on to later, I will be arguing for a more regular system. Parliament does not normally intervene in the workings of the Sentencing Council, and nor should we, but these are special circumstances. On that basis, I beg leave to move the amendment.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord for his opening remarks where he said he was short so would be brief. I suppose I can replicate those comments. This amendment seeks to provide for parliamentary scrutiny, as the noble Lord, Lord Beecham, said, for Sentencing Council guidelines in setting financial penalties.
Schedule 17 provides that the amount of any financial penalty payable under a DPA must be comparable to that which a court would have been likely to impose on conviction. In determining that amount, sentencing guidelines will be relevant. The Sentencing Council, as the Committee may already know, has already indicated that it will produce sentencing guidelines to cover the offences likely to be encompassed by DPAs when committed by an organisation, including fraud, money laundering and bribery offences.
The Sentencing Council is responsible for preparing and monitoring sentencing guidelines with the aim of ensuring greater consistency in sentencing and is of course under a statutory obligation to consult a number of parties when preparing draft guidelines. In response to the noble Lord, Lord Beecham, this of course includes, as he may well know, the Justice Select Committee. As such, the Government do not think it necessary to introduce a further requirement for parliamentary scrutiny of any guidelines that may be relevant to DPAs in this way. I therefore invite the noble Lord, Lord Beecham, to withdraw his amendment.
Lord Beecham
I am disappointed with the Minister’s response, although it was commendably brief, as he promised. I do not think the response will go in any way to allay what I anticipate will be public concern over this. However, in the circumstances, I beg leave to withdraw the amendment but reserve the right to return to it on Report.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving Amendment 30, I will also speak to Amendment 32. Amendment 30 deals with the code to be issued and proposes that it should give guidance on the circumstances prosecutors should consider rather than the general principles to be applied. On first reading the paragraph, I thought there should be parliamentary oversight, but then realised that the paragraph is about the application of the general principles not about the principles themselves. However, it seems to be not wholly clear and I invite the Minister to confirm that the words in paragraph 6(1)(a) are intended to be about the circumstances that the prosecutor should consider. The Prosecution of Offences Act 1985 provides for the DPP, in other matters, to issue a code,
“giving guidance on general principles”.
I could not find whether there is any parliamentary oversight of that. I think the answer is probably that it is included in the DPP’s annual report. Something novel and major is being brought into our law and there should be no room for doubt as to the extent of the remit of the DPP and the Director of the Serious Fraud Office in this.
Amendment 32 would substitute the provision that prosecutors must “take account of” the code with “have regard to”. I want to understand whereabouts in the hierarchy—or perhaps on the spectrum—this is intended to be. I could not find in the legislation whether prosecutors are to take account of the current code under the 1985 Act, have regard to it or do something entirely different. The Minister may well be about to tell me that the words used here replicate words used elsewhere on the code. I beg to move.
Lord Goldsmith
I have a short but important point to make on Amendment 31 which stands in my name. As it stands, paragraph 5(2) requires that there should be an expiry date in any DPA but gives no guidance as to what its length should be. There needs to be some end point. This should not hang on for ever—in any event, it is unlikely that it would do so—but it is difficult to specify what that length should be. It could be different depending on the circumstances. The point of my amendment is simply to say that some consideration should be given to how one determines the length of the DPA. The best way of trying to get some guidance about that seemed to be to suggest that it should be included in the proposed code. There may be other ways to do it. I am completely open to what the mechanism is. My concern is that it is undesirable to leave it as it stands with apparently infinite or perpetual DPAs in existence.
Lord Beecham
My Lords, I certainly endorse my noble and learned friend’s remarks and support his amendment. I also support Amendment 32 standing in the name of the noble Baroness, Lady Hamwee. I shall speak to Amendments 31A and 31B, which again would provide effectively parliamentary oversight and approval of the code of practice to be drawn up by the Director of Public Prosecutions and the director of the Serious Fraud Office.
In his letter to me that other noble Lords may have seen, the noble Lord, Lord McNally, indicated that of course the Government believe in,
“the fundamental principle of prosecutorial independence”.
We certainly affirm that. The Minister went on to say that it is therefore appropriate for the code to be issued by the DPP and the director of the Serious Fraud Office,
“rather than it being put on a statutory footing in regulations laid by a Government minister”.
In my judgment, prosecutorial independence merely applies to the way in which a case can proceed, whether it should proceed and the like, but not necessarily the framework.
This is a novel framework being established for this purpose and, I reiterate, it will need to command public support. I do not refer to the individuals currently holding those offices or necessarily to those previously holding them, but neither of those departments has, shall we say, an unblemished reputation among the public over a series of quite different matters over the years. I have every respect for the current holders of those offices. As it happens, they both seem to be doing a very good job but the history is somewhat difficult in both cases. After a consultation process, the holders of those offices would have effectively the final word without any real intervention or guidance by Parliament. That is inappropriate in the particular circumstances of this case. What I propose would not interfere with their prosecutorial discretion, but it would allow the public to have confidence that the framework being established, within which prosecutorial independence would be exercised and maintained, is one that has Parliament’s support. It would not simply be left to Parliament to debate, without being able to influence it, following consultation carried out under the provisions of the Bill. For what it is worth, I have the support of the noble and absent Lord, Lord Phillips. The noble Lord, Lord McNally, looks to the heavens in gratitude. I shall direct the noble Lord, Lord Phillips, to Hansard tomorrow. There is a serious point here and I ask the Government to reflect upon it.
Lord Ahmad of Wimbledon
My Lords, in providing for a code of practice for prosecutors in relation to deferred prosecution agreements, the Government have sought to ensure consistency with other statutory provisions relating to guidance for prosecutors on operational matters. As I have said before, the scheme for DPAs is a new concept for our criminal justice system and as such does not fall within the scope of any existing guidance for prosecutors.
I will turn to specific amendments and refer first to Amendment 30. The Government consider that there should be a code for DPAs comparable to the code for Crown prosecutors issued by the DPP under Section 10 of the Prosecution of Offences Act 1985. The code for Crown prosecutors sets out the general principles that prosecutors should follow when undertaking their functions. My noble friend Lady Hamwee referred to paragraph 6(1)(a) of Schedule 17, which reflects Section 10 of the Prosecution of Offences Act 1985 as to the general nature of the guidance to be set out in the code of practice for DPAs. However, unlike Section 10 of the Prosecution of Offences Act, paragraph 6 of Schedule 17 sets out in further detail the matters that must be covered in the code of practice for DPAs. Let me be clear: the key elements of DPAs are clearly set out in the Bill. The code of practice will provide guidance to prosecutors on the exercise of their discretion on operational matters. As such, the code is fundamentally an operational document and seeks to preserve prosecutorial discretion in operational matters. This approach will ensure that the code provides guidance in relation to key procedural matters for DPAs and decisions to be made by prosecutors.
Amendment 31 would add to paragraph 6 a further matter on which the code of practice may give guidance by adding to the list, as the noble and learned Lord, Lord Goldsmith, said,
“the choice of expiry date for a DPA”.
The Government’s view is that paragraph 6(2) is already clear that the code may give guidance on any relevant matter. If prosecutors consider it necessary and desirable to have guidance on the duration and expiry of an agreement, they would have the power to issue such guidance under that paragraph. We do not therefore see any particular or specific need to highlight this issue, although, again, the points of the noble and learned Lord, Lord Goldsmith, have been noted on this matter.
Amendments 31A and 31B seek to make the DPA code of practice for prosecutors subject to the affirmative resolution procedure. The noble Lord, Lord Beecham, referred to the letter issued by my noble friend Lord McNally. He is correct that the fundamental principle of prosecutorial independence means that it is appropriate for the code to be issued by the DPP and the director of the Serious Fraud Office. The code is an operational document, as I have already said. As such, we do not consider that it is either necessary or appropriate to make this code subject to parliamentary scrutiny. This approach is consistent with that under Section 10 of the Prosecution of Offences Act 1985 in respect of the code for Crown prosecutors. I should add that a supplementary delegated powers memorandum has been provided to the Delegated Powers and Regulatory Reform Committee, which has not raised any concerns about the approach taken in Schedule 17.
Amendment 32, referred to by my noble friend Lady Hamwee, relates to the duty on prosecutors to take account of the code of practice for DPAs when exercising functions under Schedule 17. It is essential that there is transparency and consistency in the way DPAs operate. The code of practice will play an important part in meeting these requirements. Requiring prosecutors to “take account of” the code throughout the deferred prosecution agreement process will ensure that it is considered and applied in relation to making decisions and exercising functions. Parties to the agreement, the judge and the public can be confident that each agreement will be approached and made in a consistent manner. We do not consider that requiring a prosecutor to “have regard to” rather than “take account of” the code would make any material difference to the extent of its use by the prosecutor.
In conclusion, there is a strong case for ensuring parity between the legislation providing for the deferred prosecution agreement code of practice and the code of practice for Crown prosecutors issued under the Prosecution of Offences Act 1985. I hope that, in light of the explanations I have given, my noble friend Lady Hamwee, the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, will agree not to press their amendments at this time.
Baroness Hamwee
My Lords, I thank the Minister for that. In view of the hour, I beg leave to withdraw the amendment.
Lord Goldsmith
Lord Goldsmith
I will also speak to Amendments 34, 36, 37, 39 and 40, which are all in my name. This group covers three topics and I will deal with them shortly. Amendment 33 is really a probing amendment, relating to why there is a double court approval. I have previously talked about the importance of the court approval and nothing that I say now takes away from that. A court approval is important. I was looking forward to explaining to a packed Chamber how the Bill is structured. Sadly, we seem to have reached a moment when it is not as full as I was hoping.
Lord Goldsmith
The quality, as my noble friend says, is however very high. The way the Bill is structured is that there are two court approvals. Under paragraph 7, there has to be a court approval before a DPA is entered into and then a court approval, described as a final hearing under paragraph 8, afterwards. My question is: why is it necessary to have both? I am really not clear what the advantages are because it is plain, under paragraph 8, that a DPA does not come into effect and cannot be entered into unless there is the court’s approval. Why does one need the prior approval under paragraph 7? I do not see the advantages; that is why it is a probing amendment.
I also see disadvantages. There are costs and court time, both of which are precious commodities—particularly for the ministry that the Ministers represent. I am concerned that it is also unnecessarily cumbersome. May it also distort the negotiating process? Might a defendant who is a potential agreer to a DPA say, “I know you want more, Mr Prosecutor, but let us go and ask the judge whether what I have offered so far is enough”. I am not very happy with that proposal. Above all, why is it necessary to have a double process? That is the question. Amendments 37 and 39 are consequential to that amendment.
The next point, which I imagine can be dealt with very quickly, is in Amendments 34 and 36. These amendments are designed to ensure that whatever process there is, whether it is preliminary or final, it is clear that the defendant is to be present when that takes place. I have little doubt that that is what is intended but I would like reassurance on it, and that there is not to be any form of ex parte application by the prosecutor to the court—something to which the defendant is not a party.
Amendment 40 raises a more substantial point. As it stands under the scheme of the Bill, when a DPA comes to an end certain things are to happen. Paragraph 11(8), to which this amendment applies, requires that at that stage there should be details of the compliance. It says that:
“Where proceedings are discontinued under sub-paragraph (1)”,
which I apprehend is when the DPA has come to an end,
“the prosecutor must publish … the fact that the proceedings have been discontinued, and … details of P’s compliance with the DPA”.
I am rather concerned about why that is necessary. It cannot be for the purpose of checking whether there has been compliance because that must be for the prosecutor to do. Indeed, if the public say, “We don’t like this compliance”, there is no procedure for the DPA somehow to come back into existence, so I do not see why it is necessary. If, to take a different case, a prison sentence is reduced for good behaviour, the behaviour that has led to the reduction is not published.
I am concerned for one reason in particular. If there is a lengthy DPA, and the company, which it seems it is simply going to be, has complied and done what was necessary, the publication of the details of its compliance—and I do not know how detailed that will be—would result in the whole thing being revived. That is a little against the spirit of the idea that you make an agreement, it is sanctioned by the court, you comply with its terms, and then your record does not get sullied again. I am concerned that the consequence of this may be to raise the matter again to the disadvantage of the defendant who has done all that was required of him or her. If it is necessary because there is a real point in publicising the details of compliance, that may be one thing, but because I cannot, at the moment, see the benefit of it in the scheme of the provision, I question its desirability. I look forward to hearing what whichever noble Lord responds will say about it. I beg to move.
The Lord Speaker (Baroness D'Souza)
I must advise your Lordships that if this amendment is agreed to, I cannot call Amendments 34 and 35 by reason of pre-emption.
Lord Marks of Henley-on-Thames
I shall speak briefly to Amendments 38 and 41. Amendment 38 is about public final hearings. Just as there are absolutely sound reasons for the preliminary hearing considering a DPA to be in private to avoid prejudicing any subsequent prosecution, if no DPA is entered into, and to avoid prejudicing negotiations for a DPA, so the final hearing should generally be in public unless there is still at that stage a substantial risk of prejudice. I suggest that that is essential for the public administration of justice and to build and maintain public confidence in these new arrangements. That is the point of Amendment 38.
Amendment 41 is on a similar theme. Under paragraph 12, the court may postpone publication of the terms of a DPA or of a decision on a breach, variation or discontinuance of a DPA if it appears to the court that postponement is necessary to avoid a substantial risk of prejudice to the administration of justice in any legal proceedings. This amendment limits any such postponement to the period of such continuing risk, so that as soon as the risk disappeared, publication would follow. Again, I suggest that that must be in the interests of the public administration of justice.
Lord Beecham
I have a good deal of sympathy with the amendments in this group tabled by my noble and learned friend and the noble Lord, Lord Marks, and I will be interested to hear the Government’s response. Both aspects seem to be matters that they should consider before Report.
Lord Ahmad of Wimbledon
Transparency and openness are key to the operation of the new deferred prosecution agreement process. In designing this process the Government have sought to strike a balance between the need for the parties to be able to negotiate without prejudice and to discuss a proposed agreement with a judge openly, with the imperative to avoid the perception that this is justice behind closed doors. Certainly, it is not to give the impression of cosy deals being struck in private.
Amendments 33, 37 and 39, in the name of the noble and learned Lord, Lord Goldsmith, would remove the preliminary hearing element from the process for entering into deferred prosecution agreements. The Government’s strongly held view is that the preliminary hearing is an essential feature of the process for entering into a DPA. It is at this stage that the prosecutor and the organisation are able to discuss the potential for an agreement and its outline terms openly with the judge.
Judicial scrutiny at this early stage is very important to determine whether an agreement, first, is likely, in principle, to be in the interests of justice, and, secondly, whether its proposed terms are fair, reasonable, and proportionate. More importantly, the preliminary hearing allows greater judicial involvement and judicial influence on the outcome, which critics say perhaps is lacking in the model used in the United States. After all, it is the doctrine of UK law that not only should justice be done but it is seen to be done.
Participation by organisations in the DPA process will be voluntary, as has been said previously. Some 93% of respondents to our consultation agreed that the preliminary hearing should be held in private in order to limit any potential prejudice to an organisation’s commercial interests and to prevent jeopardising a future prosecution.
Amendments 34 and 36, also proposed by the noble and learned Lord, Lord Goldsmith, probe the requirement that at the preliminary hearing and the final hearing the prosecutor must apply to the Crown Court for a declaration that entering into a DPA is in the interests of justice and that the proposed terms are fair, reasonable and proportionate.
It is clear from the legislation as drafted that the hearing and the declaration sought will relate to an agreement which both parties have been negotiating. While the schedule does not state explicitly that the organisation can or will take part in the proceedings we think that this is very much implied. We are clear that while the prosecutor is the party to initiate the court process leading to the declaration, the organisation will be entitled to take part, as a separate party, in those proceedings. The detail of the criminal procedure relating to such hearings will be set out in criminal procedure rules. Adding the suggested words will not in our view clarify either the purpose of the hearing or the organisation’s role in it and we do not, therefore, think that they are necessary.
Amendment 38, in the name of my noble friend Lord Marks, relates to provisions setting out the approval process of an agreement at a final hearing. During a preliminary hearing held in private, the judge will have indicated whether an agreement is likely to be in the interests of justice and whether the proposed terms are fair, reasonable and proportionate.
Before the final hearing. there will be further scope for the parties to refine the agreement, such that the agreement may not be identical to that before the court at the preliminary hearing. The provisions in paragraph 8 of Schedule 17 therefore allow for the final hearing to start in private to give the parties and the judge a final opportunity to ensure in a confidential setting that everything is as it should be before the agreement is approved in an open court.
It must be remembered that there is always the possibility that even at this late stage, either party can decide whether the process should not go forward, or the judge may not be satisfied that the agreement should be concluded. If the agreement is not made, the confidentiality of discussions between the parties should be protected to protect any potential jeopardy to the organisation’s interests and to avoid potential prejudice to any other prosecutions. Restricting the ability to hear the case in private only to situations where there could be a substantial risk of prejudice to the administration of justice is, therefore, too restrictive. It is not expected that the final hearing would need to start in private for all cases, but we make provision for those presumably limited cases where this may be deemed to be necessary.
Importantly, where a DPA is made and approved the prosecutor must publish any declarations and reasons, including any initial decisions not to approve the DPA, so that there will be transparency once the DPA has been made. I hope that the Committee will agree that it is desirable for the parties to have a final opportunity for further discussion with a judge, should they consider this necessary, about an agreement in private, ahead of moving into open court for an agreement to be formally approved. I suggest that it is neither necessary nor desirable for a judge to determine whether the first part of a final hearing should be in private, solely based on the criteria suggested by Amendment 38.
On Amendment 40, if the terms of a deferred prosecution agreement are complied with, the agreement will expire on the expiry date set therein. Under paragraph 11 of the schedule, the criminal proceedings that were instituted and suspended will then be discontinued by the prosecutor by application to the court. The purpose of this is to bring the criminal proceedings to an end clearly and transparently.
Once the proceedings have been discontinued, the prosecutor will publish that fact and will additionally publish details of how the agreement was complied with. Amendment 40, as tabled by the noble and learned Lord, Lord Goldsmith, seeks perhaps to probe further as to why it is necessary to publish this.
Lord Goldsmith
My Lords, I am grateful to the noble Lord for that detailed reply. I want to study carefully in Hansard what he said, as I want to study what was said by him previously on other amendments and by the noble Lord, Lord McNally, and then decide what I would like to bring back on Report. Nevertheless, I am grateful for his reply, as I was grateful for the detailed letter that came from the noble Lord, Lord McNally, which dealt with questions that I raised on the previous occasion. Subject to that, and given the hour, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, paragraph 13 of the schedule provides for the use of material in criminal proceedings. Sub-paragraph (4) states that certain material,
“may only be used in evidence … on a prosecution”,
either for the same offence or for an offence as it says in the paragraph—I will not take up the Committee’s time in reading it. The material in question is,
“material that shows that P entered into negotiations for a DPA, including in particular”.
I was concerned by the phrase “in particular”. The way I have dealt with that in the amendment to probe this is to insert “any” so that it is “any material”,
“that shows that P entered into negotiations for a DPA”.
I hope that the Minister can assure me that the items listed are merely the most obvious examples and that this is not an exhaustive list. It seems to me that it could be interpreted that way. I beg to move.
Lord Ahmad of Wimbledon
My Lords, this amendment relates to paragraph 13 of Schedule 17, which deals with the use of material arising from DPAs. In particular, it seeks clarification about what can be relied upon by a prosecutor in future criminal proceedings when a DPA has not been approved by the court and made. The Government’s intention is to provide necessary protections and safeguards as regards organisations voluntarily entering into the process towards the making of a DPA in the event, for whatever reason, that an agreement is not finalised. Without these safeguards, some organisations might not voluntarily engage and co-operate with the prosecution.
On the point raised by my noble friend Lady Hamwee, I can give her the assurance that paragraph 13(6)(a) is a non-exhaustive list of materials that are likely to be produced during the process towards the making of an agreement, which would show that negotiations had been entered into. They are the most obvious documents, and the use of the words “including in particular” makes it clear that they may not be the only materials that might show that negotiations had taken place and would not be capable of being used other than in the limited circumstances referred to in paragraph 13(4). I suggest that inserting “any” at the start of, or removing “in particular” from, paragraph 13(6)(a) would not make the position any clearer.
I trust that with the assurance that I have given to my noble friend she will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I think that that amounted to a yes in response to my request for assurance. I beg leave to withdraw the amendment.
Baroness Hamwee
“Treatment of money paid under a DPA14A Money paid to satisfy a requirement under paragraph (a), (b), (c) or (g) of paragraph 5(3) shall not be treated as a deductible expense for the purposes of taxation.”
Baroness Hamwee
My Lords, a number of requirements may be made under paragraph 5, including imposing a fine or asking for compensation, a donation of money to a charity and reasonable costs. I was particularly concerned that the donation to a charity should not be treated by P as a deductable expense for tax purposes. In normal circumstances it probably would be, but that seemed to me to be offensive.
The HMRC has confirmed on its website that a fine is not,
“incurred wholly and exclusively for the purposes of the trade”,
but I do not think that it would do any harm to confirm this in the legislation. I have not included disgorging profits because, presumably, tax was paid on them in the first instance, so I can see an argument that they should be deductable. But I am interested in particular in hearing what the Minister has to say about payments to charity. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lady Hamwee for drawing the Committee’s attention to this issue. The Government firmly believe that wrongdoers should not be able to profit or otherwise benefit from their offending behaviour; that is why DPAs will require organisations to comply with tough terms and conditions. These terms may include financial elements such as requirements to pay compensation to victims, a financial penalty, and the reasonable costs of the prosecutor, as well as a requirement on the organisation to disgorge the proceeds of criminal wrongdoing. However, it should also be remembered—as it was in discussions on a previous amendment, as pointed out by the noble and learned Lord, Lord Goldsmith—that DPAs can include other non-financial requirements, such as updating anti-corruption or fraud policies and retraining staff. Those are important attributes.
Deferred prosecution agreements are intended to ensure that organisations recognise and are held to account for their wrongdoing and take steps to mend their ways. Fulfilling the terms of an agreement should not be seen as simple entries in an organisation’s financial book-keeping records. The harm inflicted on the victims of economic crime and innocent third parties should not be seen simply as a cost of doing business.
It will come as no surprise to your Lordships that my noble friend referred to tax. The tax obligations of organisations relating to financial penalties and compensation payments can be, and are, complicated. These obligations have been very carefully developed over many years to ensure the right balance is struck. Although I welcome my noble friend’s efforts to clarify taxation arrangements under a DPA, the question of whether and which financial elements might be tax deductible is, and should continue to be, determined by finance legislation so that all relevant matters and consequences can be taken into consideration. That also avoids a piecemeal and haphazard approach to tax matters which might set an unhelpful precedent or have unintended consequences. Matters in respect of taxation are properly a matter for the Finance Acts and not for legislation such as this.
In light of these points, I would be grateful if my noble friend Lady Hamwee would agree to withdraw her amendment. In conclusion, I say to the Committee, and in particular to the noble and learned Lord, Lord Goldsmith, that I think it would be beneficial to arrange a meeting with officials so that we can address some of the issues more specifically in advance of Report stage. But for now, I hope that my noble friend Lady Hamwee will agree to withdraw her amendment.
Baroness Hamwee
My Lords, of course I will withdraw the amendment. I understand that tax is complicated and that the Government prefer to deal with it in specific legislation. Nevertheless, I think that at the moment there is the very real possibility that a donation to charity made under this provision would be treated as deductible. I hope that the Minister will arrange for that to be confirmed to me or otherwise so that I can consider what to do on the next occasion. I beg leave to withdraw the amendment.