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.
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
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.
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.
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.