Police, Crime, Sentencing and Courts Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - part two & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Rosser (Lab)]

This issue was also raised by my colleague, Ben Bradshaw MP, in the Commons. As has been said, exceptional hardship is the plea a person can use when charged with road traffic offences to avoid losing their licence if not being able to drive would cause them exceptional hardship. Obviously, as we have heard, the concerns about the system are that exceptional hardship is being agreed to too frequently for repeat offenders and in spurious cases.

What has quite clearly been asked of the Government —that is, what is being sought—is a tightening-up of the definition of exceptional hardship. I ask the Government to say in their response, first, whether, in their view, there is an issue with exceptional hardship being agreed to rather too frequently. Do the figures show that the number of times exceptional hardship is being agreed to is going up year by year? As I understand it, between 2011 and 2020, there were more than 83,500 cases where drivers did not receive a driving ban by pleading exceptional hardship. Do the Government have a feel for whether it is the case that instances of exceptional hardship being agreed to are increasing? Are they aware of any areas, perhaps in relation to courts, where there is what they regard as best practice, where the system is working well?

I remember once being told that “exceptional hardship” was something that people suffered, for example, at times of war. When it comes to the loss of a licence, perhaps we are talking more about a form of inconvenience than necessarily about hardship. Even in the more extreme case where somebody was able to persuade you that they would lose their job, presumably it is relevant to ask, “Well, that may be the case, but if it is for a short period of time, will the employer be prepared to live with it and give out other duties that do not involve driving?” Perhaps, if they are going to lose their job, it would suggest that the employer is not necessarily highly enamoured of their performance. But, even in a case where you might lose your job, it must surely be assessed against “exceptional hardship”: what would the individual’s prospects be at that time of getting another, completely different job that did not involve driving, if a ban would cause them to lose their job that involved driving?

I know that there are other instances where people come out with examples of it being almost impossible to get to work but where it turns out that, if they were prepared to get up an hour and a half earlier in the morning, they might be able to get there by public transport—but somehow it is regarded as an “exceptional hardship” to have to get up so much earlier to get there by public transport and it taking longer to get home. So I am aware of the way these arguments get used and put forward, and we need to be careful to draw a clear distinction between what is “exceptional hardship”, with a proper definition of “hardship”, and what may be closer to “exceptional inconvenience”.

I simply repeat what I asked earlier: do the Government have a feel for this one? Do they have any information on the extent to which “exceptional hardship” is being used and accepted more as an argument? Do they have any examples of where the wording is being applied in perhaps a more realistic manner, and are they looking to take action in this area? What is being asked for in this amendment is that we should tighten up the definition of what constitutes exceptional hardship. I await the Government’s response with interest.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords, and particularly the noble Baroness, Lady Randerson, for her explanation of this amendment, which seeks to define the term “exceptional hardship” that applies in the context of a court’s decision on whether to impose a driving ban.

I reassure the Committee that the Government take road safety extremely seriously. Drivers who reach 12 points should automatically be disqualified from driving, to protect themselves and others. However, sentencing, including the imposition and length of a driving disqualification, is properly a matter for our independent courts, based on the facts of each case—we have heard of a number of interesting and diverse cases this evening. Courts have the discretion not to disqualify, or to impose a reduced disqualification, if they are satisfied that there are mitigating circumstances justifying a claim of “exceptional hardship”.

This amendment to introduce a definition of “exceptional hardship” is unnecessary, detrimental to judicial discretion and of questionable utility in assisting a court in applying the “exceptional hardship” test. It would introduce a narrow definition that would not be able to account for all circumstances that were presented to the courts and would remove the courts’ freedom to use their experience to reach decisions accordingly.

It might assist the Committee if I read out the sentencing guidance that is already in practice—from my mobile phone. It says:

“When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following … It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn … Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence … Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive … If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account … Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable.”


It concludes by saying:

“Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.”


I hope the Committee found that guidance helpful.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was interested in the explanation of this amendment by the noble Lord, Lord Paddick. As he rightly said, there are all sorts of potential issues—one can think of electric cars—and reasons this may not be workable as it has been drafted. Nevertheless, the noble Lord made the point about the vulnerability of police officers when they are in this situation, and of course the vast majority of cars do use conventional engines at the moment.

The other point made by the noble Lord is that a driver is under no obligation to get out of the vehicle. I have to say that, in the current circumstances, if there was a lone woman in the vehicle and a lone police officer asked her to step outside, that may be problematic. Nevertheless, that is not the burden of the noble Lord’s amendment. He has raised an interesting point; we want to protect police officers in vulnerable situations, and I look forward to the Minister’s reply.

[Baroness Williams of Trafford (Con)]

My Lords, if I understand the noble Lord, Lord Paddick, correctly, this amendment is aimed at improving the safety of police officers at the roadside. I share his concerns and want to reassure him that the safety of police officers is vitally important to this Government, as is demonstrated by our programme of work on the police covenant. I will not echo the arguments made to the noble Lord by the noble Baroness, Lady Randerson, on the defects of his amendment, but I want to say that we are committed to ensuring that the police have the powers that they need to protect people.

The British model of policing is based on consent, and the exercise of police powers, including the Section 163 power, needs to be transparent, fair and legitimate to ensure that the public can remain confident in policing. I am supportive of the intention behind the extension of this power, but more evidence and consultation are needed to demonstrate that it would provide benefits to officers’ safety and build support for the effectiveness and legitimacy of the proposal to extend the power. I can say to the noble Lord that we will work closely with the National Police Chiefs’ Council, the College of Policing and the Police Federation to explore these issues further and consider what more can be done to improve officer safety at the roadside. On that basis, I hope that he will withdraw his amendment.

[Lord Paddick (LD)]

I thank the noble Lord, Ponsonby of Shulbrede, for his support in principle. I think it would be problematic if the lone female driver was asked to get into the police vehicle, but I am not sure that the female driver would be in danger by getting out on to the roadside.

I am very grateful to the Minister for her support for the intention behind the amendment. As I acknowledged, more consultation is required, and I am very grateful that the Government are prepared to discuss these issues further with the National Police Chiefs’ Council and the Police Federation. On that basis, I beg leave to withdraw the amendment.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my right honourable friend Ben Bradshaw spoke to his amendment, which was along similar lines, in the other place, to increase the sentences for this type of offence from six months to a possible 14 years. I agree with most of the points made by the noble Baroness, Lady Jones, and particularly her opening point: in general terms, I do not like sentence inflation. This is a very large potential inflation in sentences. Nevertheless, I take the point that she and other noble Lords have made, that a maximum of six months in custody for failing to report a serious or fatal injury during a road traffic accident seems like an unduly light sentence for the most extreme cases.

We have heard reference to the petition; I understand that it will be debated in the House of Commons later this month. I have a question for the noble Lord, Lord Paddick. I would be interested to know how this would interact with existing sentences. For example, if a person has committed an offence causing serious injury or death by dangerous driving, would the expectation be that they would also be sentenced to a number of years for not reporting the accident? How would the two charges work in combination with each other? I have an open mind on these amendments, and I look forward to the Minister’s response.

[Baroness Williams of Trafford (Con)]

My Lords, as noble Lords have explained, Amendments 161 and 166 relate to the offence of drivers failing to stop. We know that in a small number of cases, the failure to stop might be related to an event that leads to the death of, or serious injury to, another person, but in the vast majority of cases, convictions involve low-level traffic incidents. In an extremely small number of cases, there may not be any other evidence to connect the death or serious harm with the driver who fails to stop, meaning the only offence they have committed is that failure to stop. I understand the concerns raised, but these amendments potentially risk providing for a maximum custodial sentence of 14 years for failure-to-stop offences resulting in serious or fatal injuries in circumstances where there would not have had to be evidence of a causal link between the failure to stop and the death or serious injury.

What is more, these amendments cut across the basis for the current offence. I must stress that the offence of failure to stop and report is designed to deal with the behaviour relating to the failure to stop. The offence is not to provide an alternative route to punish an offender for a more serious but unproven offence.

Where there is evidence that the driver caused harm, there are a range of other offences, including causing death or serious injury by dangerous or careless driving, with which the driver can be charged. In these cases, the courts can treat the failure to stop as an aggravating factor that adds to the overall seriousness of the offending. Where there is evidence that the driver knew about the incident and took steps to avoid detection, they may be charged with perverting the course of justice, a common law offence that already carries a maximum sentence of life imprisonment.

Linking death or serious injury with a failure to stop as the cause would risk creating an unnecessary and unfairly severe offence. To take an example, where there was evidence of causing death by careless driving and failure to stop, the offender would face a maximum penalty almost three times higher for failure to stop than they would for causing death by careless driving—14 years compared to five years— even though the causing death offence requires proof of a fault in the standard of driving.

The law already imposes severe penalties for vehicle offences that lead to death or serious injury, but when doing so, a clear causal link must be proved between the driver’s behaviour and the outcome. The proposed amendment would essentially be equating, or in some cases exceeding, the seriousness of failure to stop with actual culpability for causing death or injury. That, as I have said but want to repeat, causes serious anomalies with other offences that could result in potential injustices, and it is why the Government cannot accept the amendment.

In relation to Amendment 166, which also seeks to amend the current offence, we are concerned by the potential impacts on what is a complex area of law. For example, it is unclear what impact replacing the word “accident” with “collision” would have; it might exclude incidents that are currently and rightly within scope of the existing version of this section. We also reiterate our objections set out above to the creation of the offence of failing to report where the collision caused foreseeable serious or fatal injury.

We are of course aware of the traumatic effects of such incidents, however rare. From what I have already said, it should be clear that this is a complex area, and any change to the law has to fit within the current driving offence framework. However, let me assure noble Lords that my ministerial colleagues at the Department for Transport understand the concerns that have been raised. I can assure the Committee that the Department for Transport is exploring options that could be pursued in this area, including but not limited to the available penalties and how the offence operates as part of long-term and wider work on road safety. I hope that, with those assurances, the noble Lord, Lord Paddick, will withdraw his amendment.

[Lord Paddick (LD)]

My Lords, I thank noble Lords for contributing to this debate, including the noble Baroness, Lady Jones of Moulsecoomb, who contributed twice. I thank her for her support. I agree in principle with what the noble Baroness and the noble Lord, Lord Ponsonby of Shulbrede, said about sentence inflation; we are not in favour of that. However, the Minister talked about anomalies and this clearly is one—where someone causes death or serious injury and fails to stop after an accident but where no other offences are disclosed.

This is from memory, but in the case of the MP whom the noble Lord referred to, I think the incident in his part of the world in the south-west was a case of somebody who hit something, someone wandering in the road for example, and therefore an offence of careless, reckless or dangerous driving was not appropriate. However, the driver knew that they had hit something or somebody and still failed to stop or call the emergency services.

This is not about punishing the manner of driving that has caused death or serious injury, but about the dishonesty of knowing that you have hit somebody and knowing, from the speed that you were doing, that the person is likely to have received serious injury and, because you have failed to stop, what could have been survivable injuries become fatal injuries, because medical aid is not provided immediately or within a short space of time. As the noble Lord, Lord Berkeley, said, almost everybody who has a car has a mobile phone, and with the extensive coverage of mobile phone signals there is no reason why immediate assistance cannot be summoned in most cases. As the noble Baroness, Lady Jones of Moulsecoomb, said, failing to stop after an accident of this kind can mean the difference between life and death.

In my opening remarks I said that I was not sure that 14 years was the right punishment, that it needs to fit within the framework of punishment. In answer to the question asked by the noble Lord, Lord Ponsonby of Shulbrede, there could be circumstances, such as the one that I have referred to, where offences other than failing to stop were not present. In those circumstances—for example, if somebody in foggy conditions wearing dark clothing in the middle of the night stumbles on to a roadway and is hit by a car, and the person driving knows that they have hit that individual but fails to stop—the only offence could be the failure to stop, yet it could have fatal consequences for the pedestrian involved.

I am grateful to the Minister for saying that colleagues in the Department for Transport will be looking at this issue, but it goes to the heart of the previous group on how there needs to be an overall look at road traffic offences in the light of changes that have taken place. The Minister also talked about difficulties that might be created because the amendment refers to collision versus accident, whereas other parts of road traffic law refer to accidents, but I did say that throughout road traffic legislation “accident” needs to be changed to “collision”, because some of the incidents are not accidents. However, it is encouraging that the Minister’s colleagues in the Department for Transport have agreed to look at this. On that basis, for the time being I beg leave to withdraw the amendment.

--- Later in debate ---

Let me add just one other point about the so-called scrutiny that is now going on: there is not one official in the Box to provide assistance to the Minister. I have no complaint about that, but it is in my experience unprecedented.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

Just for the record, and because the officials have worked extremely hard, I have a WhatsApp group with them. In fact, I have been doing all this work without officials there. They are on the ball; they are online; they are providing assistance.

[Lord Falconer of Thoroton (Lab)]

I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials.

To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this:

“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”


In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given.

The Government put forward a memorandum to justify this approach which said as follows:

“The list of offences which may not be suitable for”—


a community caution—

“is likely to change regularly”

and

“will be subject to continual updating and changing which makes it more suitable for secondary legislation”.

The Delegated Powers Committee report states:

“The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’.”


The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not.

The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them.

The Delegated Powers Committee report says:

“We consider that the Government’s justification for its approach”—


applying only when penalties are increasing and not when they are decreasing—

“is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns.”

Again, we agree with that. The committee continues at paragraph 75:

“Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny”.


That is simply to quote what the Delegated Powers Committee says.

The final group relates to Clause 129 and Schedule 13, which gives the courts power

“to review community and suspended sentence orders, and … to commit an offender to custody for breach of”

such orders. The memorandum that the Government presented to the committee says that

“the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community”.

The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country.

The committee report points out:

“The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process”—


and it sets out certain things they can take into account in relation to it. The report continues:

“Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’.”


That is what the Government said in their memorandum.

The Delegated Powers Committee disagreed with that, saying that

“the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.”

That is what our third set of amendments does in relation to that.

I apologise for taking so long to go through this, but these are important issues.

[Lord Paddick (LD)]

My Lords, I agree with the noble and learned Lord about the importance of this part of the Bill. Although the noble and learned Lord has just apologised for the length of his opening remarks on this group, I must warn the Committee that that was nothing compared with my opening remarks on the next group, if the Government wish to go there this evening.

The noble and learned Lord, Lord Falconer of Thoroton, is right to demand that the list of excluded offences for which the police cannot give a community caution is in the Bill. This is yet another example of why this Bill is a shell, lacking in sufficient detail for noble Lords to give their consent to it. The Delegated Powers Committee agrees, as the noble and learned Lord has said.

He is also right that any changes to the maximum number of hours of unpaid work or attendance, or the maximum financial penalty that may be attached to a diversionary or community caution, should at least be subject to the affirmative resolution. But as the noble and learned Lord has said on previous groups, the House still has no ability to amend such an order. I will have more to say on that issue in a later group. Again, the Delegated Powers Committee agrees, as the noble and learned Lord has said.

Amendment 214B is about community orders and suspended sentence orders, and has, as far as I understand it, nothing to do with police cautions—I look for reassurance. I have no idea why it is in this group of amendments, other than that it is also covered by the Delegated Powers Committee’s report. I have no doubt that the noble and learned Lord is absolutely right about that as well, and the Delegated Power Committee agrees.

We support these amendments, mostly because they are right, and, in the case of Amendment 214B, because the noble and learned Lord is usually right.

[Lord Wolfson of Tredegar (Con)]

My Lords, I recognise that this group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton, has come about because of recommendations from the Delegated Powers and Regulatory Reform Committee in its sixth report of the Session. It is a pleasure to discuss this matter, even at this hour. As to timing issues, I am sure the noble and learned Lord knows better than me with whom to take that matter up; I am not sure I am the correct post box for that.

I can assure the Committee that, even as the noble and learned Lord was speaking, I received a WhatsApp—I am not waiving privilege on all my WhatsApp messages—from the Bill team: “To reassure, we are here.” The team cannot answer back, but I can. I regret the way that the team’s their work ethic was impugned, unintentionally, I am sure.

[Lord Falconer of Thoroton (Lab)]

I made it absolutely clear that I was not for one moment impugning the Bill team’s work ethic. I was saying, quite legitimately, that they are not here because it is so late at night. My learned friend the Minister makes a poor point in suggesting that I was impugning them. I have nothing but the greatest admiration for that Bill team, and he should not try to distract attention from the problems of debating this at this time of night with a remark like that.

[Lord Wolfson of Tredegar]

It has nothing to do with the hour. On every Bill I have done, I have had the Bill team on WhatsApp, whether it was the Domestic Abuse Bill at 3 pm or this Bill at 11.29 pm. The fact they are on WhatsApp and I deal with them remotely has nothing to do with the hour.

[Lord Paddick (LD)]

If I can adopt a previous role that I had as a police officer and come between the two parties to try to assist, I noticed that earlier this afternoon when the Minister was leading on a group of amendments, there was nobody in the Box. I assumed that that must have been because the officials were working remotely. I have to say that on this occasion I agree with the Minister. Even at—I do not know what time it was, perhaps 4 pm this afternoon—there was nobody in the Box when it was an MoJ issue.

[Lord Wolfson of Tredegar (Con)]

We can move on. We do not need to raise the temperature at 11.30 pm. We have other things to argue about.

Let us get to the substance of this. The committee proposed a number of changes relating to the cautions and problem-solving courts measures in the Bill, as elaborated by the noble and learned Lord and the noble Lord, Lord Paddick. I shall make the central point that I want to make, because it goes to all the points that have been put down. I can assure the Committee, and in particular the noble and learned Lord, that the Government are looking at all the committee’s recommendations, which underpin these amendments, as part of our wider response to the committee, and we will revert to it in due course. I therefore hope that as time goes on, if I can put it that way, these issues will be highlighted, and I hope resolved to the noble and learned Lord’s satisfaction, but, if not, we can continue to discuss them.

I shall highlight just one matter, because I want to leave time for the noble Lord, Lord Paddick, to give us his full oration on the next group, if we have time for it. On Amendment 169D, on excluded offences in respect of community cautions, the committee, as the noble and learned Lord explained, recommended that these offences are listed in the Bill rather than set out in regulations. As he explained, regulations would then be made where further amendments became necessary.

With respect to the committee, we maintain the position that the offences that are to be excluded for the purposes of community cautions are to be made by regulations. We point out that this approach of using regulations to identify excluded offences mirrors the approach taken in the Criminal Justice and Courts Act 2015, which sets out that the simple caution, if I can call it that, may not be used in respect to offences specified by order made by the Secretary of State by secondary legislation. Just as there, so also here we believe that secondary legislation is the appropriate place for setting out the list of excluded offences, as the level of detail required may not be appropriate or suitable for the Bill. We suggest that that approach also allows sufficient time for essential engagement with stakeholders to identify those offences and to enable future changes to be incorporated without primary legislation.

I point out that the secondary legislation that we are talking about here is subject to the affirmative procedure, so the transparency that comes with that procedure will be maintained. I suggest that it would be a little bit clumsy and rare to use primary legislation for what has to be a fairly flexible approach to listing offences that should not be cautioned. We will of course discuss this carefully with stakeholders. The aim will be to bring an SI to Parliament that will be acceptable. I apprehend that I have not responded to the underlying point made by the noble and learned Lord, because I said that we will respond to the committee, but I hope he understands the thrust of my response and that for present purposes he is able to withdraw the amendment.

[Lord Falconer of Thoroton (Lab)]

First, in the light of the evidence given by the noble Lord, Lord Paddick, I unreservedly withdraw the suggestion that we are in any way disadvantaged by the officials not being in the Box. I thank the noble Lord, Lord Paddick, for bringing that to our attention.

What a disappointing response that was on the substance. First, I am grateful to the noble Lord, Lord Wolfson, for saying that there might be something more coming, although he did not indicate what that might be. We have had the report since September. Why has it taken so long to get to this? Secondly, in relation to the point which the noble Lord, Lord Wolfson, did address—about the offences that would be excluded from community cautions—the Delegated Powers Committee is saying, “Put your initial cut in the Bill”.

The noble Lord, Lord Wolfson, gave no reason why that was not to be done. He referred to the 2015 Act to which the Government had not referred when they put their memorandum to the Committee. I have not had a chance to look at the 2015 Act. It has only been mentioned now. Changing defence, as the noble Lord is doing, is always an indication of shambles on the part of the Government. What is the reason for not giving the Commons and the Lords the opportunity to debate the initial cut? It does not make the Bill too cluttered. It would not add much more than half a page. It is a ridiculous defence.

I hope that the Minister will have the time to think about it for when he comes back with the Ministry of Justice’s conclusions on this absolutely damning Delegated Powers Committee report. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am very much obliged to my noble friend Lord Ponsonby of Shulbrede for that intervention, which goes to an incredibly important point raised by the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which is that there needs to be proper scrutiny of the police being given a power to, in effect, punish people and impose conditions. There are two aspects to that, which the noble and learned Lord identified in his speech, so beautifully read by the noble Lord, Lord Paddick, even though it is so late: first, that the code of practice is complied with and, secondly, that there is consistency throughout the country in relation to the application of out of court disposals. I would be very interested to hear what the Minister has to say on how that point will be dealt with. We support the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd.

I also agree with Amendments 170, 171 and 190, which seek to ensure that a person may be authorised to give a discretionary or community caution only if they have been authorised by a prosecuting authority for those purposes and a prosecuting authority must be satisfied that that person has received adequate training and is suitable to carry out those functions. Amendment 190 is a consequential amendment on that. I support these amendments and am very interested to hear what the Ministry of Justice has to say about them. I cannot think that it would not agree with this; some level of quality must be required for somebody who is going to give that caution.

Finally, the noble Lord, Lord Paddick, made points to the effect that this will be more expensive. He did not mention, because he is too kind—or he may have done, but I missed it—the additional £13 million that the Commons paper identifies for the cost of introduction, in addition to the £105 million and £15 million. We are going to spend all this money to achieve no greater victim satisfaction and without any evidence that it reduces reoffending. Why?

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments we are talking to cover a little area and I will take them in turn if I may. I start with Amendments 170, 171 and 190. They remove the authority of a constable or investigating officer to be able to give a diversionary or community caution and in turn propose a set of preconditions that require that a prosecution authority be satisfied of the suitability, capability and training of a person before they are designated to issue a diversionary or community caution.

The position at the moment is that cautioning is mostly but not, it is fair to say, exclusively carried out by police constables. Cautioning by police dates back nearly 100 years and the police have become experienced in the application and use of cautions. At the moment, there are statutory restrictions around the use of simple cautions by the police and an existing statutory framework for their use of conditional cautions.

The framework provides a role for the DPP to authorise the use of cautions in particular circumstances. Police and prosecutors share responsibility for dealing with out of court disposals. The noble Lord, Lord Paddick, already knows this, but where police decide that an indictable-only offence should be dealt with by means of an out of court disposal, the case must be referred to a prosecutor to determine whether there is sufficient evidence for a realistic prospect of conviction and that it is in the public interest to deal with the case in this way.

These clauses do not change the approach set out in the director’s guidance and we believe this provides a necessary safeguard to the use of cautions for more serious offences. We believe that the police should be empowered as professional decision-makers, while being given clear statutory guidance as to the use of cautions. The question of the adequacy of training to fulfil those functions, which underpins these amendments, is really one for the policing authorities.

In that regard, coming to the point made by the noble and learned Lord, Lord Falconer of Thoroton, we believe that the code of practice is the appropriate place to set out any safeguards, checks and balances that should be in place before any caution under the new two-tier framework is given.

[Lord Falconer of Thoroton (Lab)]

What is the method of scrutiny of that code of practice by Parliament?

[Lord Wolfson of Tredegar (Con)]

I will come to that point. I will try to answer that question, but if I do not, I know the noble and learned Lord will remind me. However, I think I will come to it. I was just making the point that there will be safeguards, checks and balances under the new two-tier framework, an example of which may be a review by an officer of a higher rank before a decision to issue a caution is made.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

If the noble Lord will give way, the point I was making is that there is an inconsistency in the scrutiny of out of court disposals, not just the out of court disposals themselves.

[Lord Wolfson of Tredegar (Con)]

Absolutely. Let me deal with the out of court disposals themselves. I hope I have answered that point. There will, we hope, be a greater consistency of approach, but there will be differences. As for the scrutiny, as I said earlier, the code of practice will, we hope, provide a level of consistency of scrutiny that we also want to make sure is part of this structure. As I said earlier, that will be subject to an affirmative SI.

I am conscious of the time. I think we have drifted into Tuesday, so perhaps I should just conclude by thanking the Committee for contributions and invite the noble Lord to withdraw the amendment, although I am sure the discussions will continue. I also beg to move that the clauses stand part of the Bill.

[Lord Paddick (LD)]

My Lords, it is completely unacceptable that the noble Lord has said on numerous occasions that, because of the hour, he is not going to go into detail in answering the issues that I have raised. We either scrutinise this Bill properly or we do not. I do not care what time of night it is; we will scrutinise this Bill effectively. That is the first point to make.

[Lord Wolfson of Tredegar (Con)]

To be clear, the only reason I made that point is because I have a very long answer—I am happy to read it—explaining the different ways particular police forces have responded to the point. Apart from that, I gave exactly the answer I would have done had it been four o’clock in the afternoon. I assure the noble Lord that I have not deleted one sentence from my notes on the answer.