Space Industry Bill [HL]

Debate between Lord Rosser and Lord McNally

3rd reading (Hansard): House of Lords
Tuesday 28th November 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, this amendment is the result of unfinished business at the end of Report. Basically, there has been an argument throughout this Bill, and there will be in other Bills that come before us, about the worrying nature of the use of secondary legislation that is vaguely promised and vaguely described in primary legislation. In this respect, Clause 67(1), which is vaguely written, refers back to Clause 1(1) which again makes vague commitments. The amendment merely suggests that there should be crisper and more tightly drawn references which avoid blank cheques and abuse of secondary legislation.

I do not intend to press this to a vote this afternoon, but to leave it as a bit of business still to be considered. The other place will need to look at it, because it should be as worrying to them as it is to this House.

I put on record my appreciation for the removal from the Bill of the Henry VIII clause, and I hope that will be a guide for other Bills that are coming before us. I am very grateful to the noble and learned Lord, Lord Judge, who is not in his place, who has made it quite clear that Henry VIII clauses were to be avoided, and that this example of putting in Henry VIII clauses and vague “blank cheque” secondary legislation was a problem that needed to be addressed. That is not to deny the fact that we also need to be able to future-proof Bills as best we can, particularly a Bill such as this. It is a matter of getting the balance right between future-proofing and ring-fencing them in terms of the powers that we write in.

As the noble and learned Lord, Lord Judge, emphasised in his lecture at King’s College in 2016:

“This is not an attack on delegated legislation”.


However, in that lecture he quoted one of his distinguished predecessors as Lord Chief Justice—Lord Hewart—who, in 1929, warned against,

“the increase of bureaucratic, departmental authority over the citizen”.

The moving of power from Parliament to the Executive is one of the ironies of the Brexit process.

We believe that if we do not heed the warnings of the noble and learned Lord, Lord Judge, and others, we face a constitutional car crash. At the very least, future-proofing should be tightly drawn. The super-affirmative process should be used where necessary, as should sunset clauses. I believe that we need to look at the case for making certain types of secondary legislation amendable by both Houses. That is the thinking behind this amendment—a billet-doux to send down the Corridor to the other place. I beg to move.

[Lord Rosser (Lab)]

I assume that when she comes to respond the Minister will talk about the wording of the amendment and, if she is not going to accept it on behalf of the Government, will indicate why it is not acceptable. Therefore, my brief comments and questions are based on the assumption that she will talk about the wording of the amendment and what it would mean if it were included in the Bill, because obviously I share the concerns that have been expressed. I hope that if the Minister is not prepared to accept the amendment on behalf of the Government, she will at least indicate a willingness to reflect further on this matter prior to its being considered in the House of Commons.

In her response, perhaps the Minister could say what the Government envisage they might want to do through regulations under Clause 67(1) as it stands that they consider they would not be able to do through regulations under Clause 67(1) if it were amended in line with this amendment. Or, to put it the other way round, what do the Government consider they would not be able to do that they might want to do through regulations under Clause 67(1) amended in line with this amendment that they would be able to do through regulations under Clause 67(1) as it stands?

Space Industry Bill [HL]

Debate between Lord Rosser and Lord McNally

Report stage (Hansard): House of Lords
Tuesday 14th November 2017 Lords Chamber

[Lord Rosser]

The noble Lord, Lord McNally, spoke eloquently in Committee on the issue of his party and pavement politics, before referring to his concerns about space debris and the need to bring it back safely—although he did not say whether he was looking for weekly or fortnightly collections. If the noble Lord, Lord McNally, considers that the Government’s amendments address the legitimate concerns he raised, they will of course have our support.

[Lord McNally]

My Lords, I welcome the amendments. They are a first step in the right direction. Although I may have rather light-heartedly introduced the issue at the last stage, we have only to look at what we have done to the sea and to Everest to see how easily important places can be polluted. For that reason, it is important that this is on the agenda.

As was indicated in our last debate, work is being done about this problem by British technology companies. Although it may be the less glamorous end of space travel, clearing up space debris may well be another cutting-edge area that we can exploit as this expands.

The IADC is a representative body. Its membership includes all the big players—Russia, the United States, China, ourselves, the European Space Agency, India, Italy, France, Japan, Ukraine. It is the right body to take these matters forward and the amendment is welcome.

--- Later in debate ---

[Lord McNally]

My Lords, I see that the noble Lord, Lord Callanan, is in his place. I would like to say that he was sorely missed this afternoon, but unfortunately I cannot—we did not miss him at all. I can see that his popping in occasionally in the afternoon to this House of concord and agreement must be a pleasure, away from the hell of the Brexit department. It is good to see him. I do not know whether it was my eloquence or the fact that a former Lord Chief Justice—the noble and learned Lord, Lord Judge—applied his powerful arguments, but we welcome the Government’s concession.

I will not go into a great deal of detail on Amendment 33A. I will read out the section we want to delete:

“Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in section 1(1)”.


Subsection 1 is equally catch-all. It states:

“This Act has effect for the purpose of regulating—(a) space activities, (b) sub-orbital activities, and (c) associated activities, carried out in the United Kingdom”.


That is far too wide-reaching.

I make one last plea to the Minister: perhaps we could have further talks involving the opposition—the Official Opposition as well, who put their names to this—to see whether we can get some different wording. We have done a lot of good work on this, but the wording is far too wide. I give her this Gypsy’s warning: if we send the Bill down to the other place with this subsection, it will cause just the same trouble. Parliament has to be very jealous of its privileges during the passage of Bills such as this. This is a bridge too far for anyone who cares about the need to keep powers within these two Houses. I am not going to press the amendment—it would be jarring to the spirit of the whole debate to have a Division at this stage—but if the Minister would agree to meet us and have one more go before Third Reading, that would be helpful.

[Lord Rosser]

The noble Lord, Lord McNally, said that widespread concern was expressed in Committee about Henry VIII powers in the Bill and the power they would give the Government to bypass Parliament when amending or repealing primary legislation. I too am grateful that the Government have changed their position. I suspect they were concerned that they would lose a vote on this in this House, and were probably far from sure they could put the Henry VIII clause back in the Bill when it got to the Commons. They would also have had the consideration that, at their behest, the Bill started in the Lords rather than the Commons, which is not the normal procedure for Bills containing potentially controversial clauses, as this one did until the government amendment was tabled. Henry VIII may be turning in his grave at these government amendments, but we welcome them.

On Amendment 33A, like the noble Lord, Lord McNally, I hoped the Government would be able to give some rather more convincing reasons than they gave in Committee for this catch-all regulation-making power being in the Bill. I am afraid the obvious conclusion is that once again, there is no movement because the Government have brought forward this skeletal Bill for their own party management reasons, one year before discussions on the regulations and nearly two years before those key regulations are placed before Parliament. As a result, frankly, the Government do not know what regulations will be needed. Even though this is a difficulty of their own making, they clearly think it quite acceptable to expect Parliament to agree to the wide-ranging regulation-making power Amendment 33A seeks to delete.

I share the view that it would help if this issue could be further discussed before the Bill leaves this House, which means before Third Reading. I also share the view that the subsection that Amendment 33A would delete will, if it remains in the Bill, be the subject of much discussion when it gets to the Commons. If the Government will not agree to delete it, it would be a lot better if it could be amended in some way. I hope they will think again on this issue.

--- Later in debate ---

[Lord Rosser]

In Committee, we expressed our concerns about the extensive use of secondary legislation to bring in provisions under this Bill due to the Government’s insistence on taking a skeletal Bill through Parliament literally years before the all-important regulations appear.

We also expressed our concern, as did the Delegated Powers and Regulatory Reform Committee, about the Government’s intention, in respect of many regulations, that the affirmative procedure be used only for the first regulations and not for subsequent regulations under the same relevant section of the Bill, which would instead be covered by the negative procedure.

The Government said in Committee that the development of the first sets of regulations would be subject to a stakeholder engagement process over the coming months and that they would then issue a full and wide-ranging consultation on each initial draft statutory instrument prior to their being laid. They also said that if there were any material change to the original instruments, there would be further consultation.

Government Amendment 35 seeks to put some of those undertakings in the Bill. While it does not address the concern about the negative procedure being used for subsequent regulations after the affirmative procedure for the first regulations, it provides a statutory requirement for a public consultation before regulations are made to which Clause 67(6) applies and for a report to be made by the Secretary of State about the consultation when a draft of such regulations is laid before Parliament. To that extent, and it is not a minimal extent, the government amendment represents progress and we welcome it.

[Lord McNally]

Amendment 35 shows that some fertile minds have been at work since these issues were raised. Therefore, while I welcome the amendment, I suggest that the Minister puts those same fertile minds to work on Amendment 33A; then we might have an equally happy outcome at Third Reading.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Lord McNally

Monday 25th March 2013 Lords Chamber

[Lord Rosser]

My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.

The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,

“in providing strong leadership on delivery of our strategic priorities”.

However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?

It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,

“relatively small number of female offenders presents particular challenges”.

Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.

Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.

The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,

“women-only groups, where run, were often successful”.

It found that,

“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.

At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.

If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.

[Lord McNally]

My Lords, I thank all noble Lords for their various contributions to the debate. It is very interesting that the noble Lord, Lord Rosser, said that there had been 10 previous reports and that the noble Baroness, Lady Howe, spoke about the various bits of information. It is not information that we need, nor reports or statutory commitments in a Bill. It would be very easy to accept it and go on just as before. Part of my problem with the interventions of the noble Lord, Lord Ramsbotham, is that he always seems to think that a new structure or reporting method would solve these things. As with the noble Lord, Lord Hurd, every women’s prison I have visited has depressed me profoundly; and yes, if you ask my opinion, at least half the women we have in our prisons should not be there. However, it is no use the other side making pious observations now they are in opposition. The fact is that they were in office for four years after the report of the noble Baroness, Lady Corston.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Lord McNally

Monday 10th December 2012 Lords Chamber

[Lord Rosser]

My Lords, in her report a few years ago my noble friend Lady Corston drew attention to the reality that existing provisions, both in prison and in the community, are largely geared to male offenders and the needs of male offenders. The Corston report called for separate services, locally available, geared to the needs of women offenders in order to reduce as far as possible the disruption to family life and the impact on children The needs of their children and families have a considerable bearing on the ability of women offenders to attend programmes and avoid breaches of the order, and on the effectiveness of those programmes in having a positive impact on reducing reoffending. My noble friend’s report also drew attention to the number of female offenders in prison who had been, or were, the victims of domestic violence and sexual abuse, which are not normally issues that have to be taken into account by providers of services, or addressed by the skills they have to provide for male offenders.

A recent joint inspection report on alternatives to custody for women offenders highlighted the lack of women-specific provision for unpaid work and offending behaviour programmes, though it also said that women-only provision where available was often very successful. Investment in credible and appropriate alternatives to custody for women is essential. Programmes should be specifically designed for female offenders and address their needs. As well as reducing reoffending, community sentences designed specifically for women should help reduce the rate of breach as they should be capable of better fitting with women’s needs and responsibilities.

Schedule 16, dealing non-custodially with offenders, actually makes no specific provision or reference to women. The amendments seek to address these concerns by ensuring that probation trusts are required to make appropriate provision for the delivery of services to female offenders that will include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour with the particular needs of women in mind. I hope the Minister will accept this group of amendments and recognise the significant gap created by the absence of specially tailored arrangements for dealing with women offenders, most of whom, as has already been said, have committed non-violent offences, and whose sentences if they end up in prison can lead to the break-up of families, with potentially disastrous consequences for all concerned, not least the children who can end up having to go into care.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, we are fully aware of the point that the noble Lord, Lord Rosser, made in closing. One of the special factors about women in the criminal justice system and in prison is that the impact of their incarceration is an impact not only on themselves but also on their children and their families. For that reason, the Government have taken the Corston report of 2007 very much as the template of their approach to women. I have benefited from having a number of conversations with the noble Baroness, Lady Corston, over the past couple of years about the implementation and carrying forward of the report. I know that my colleague Helen Grant has also met the noble Baroness to discuss these issues.

It is interesting to note that the Government accepted 40 out of the 43 recommendations in the Corston report and made a range of commitments across government departments to take them forward. There have been real improvements in the past five years under successive Governments, including significant investment in women’s community centres to address holistically the underlying causes of women’s offending such as drug and alcohol addiction, mental health issues and histories of abuse.

The female prison estate was reduced by 400 places with the closure last year of HM Prison Morton Hall. We have about 4,000 women still in prison. However, the cross-government strategy includes: piloting and, subject to business case approval, rolling out liaison and diversion services in police custody and the courts by 2014; the piloting of drug recovery wings for drug and alcohol-misusing prisoners at three women’s prisons—New Hall, Askham Grange and Styal—and the development of intensive treatment-based alternatives to custody for offenders with drug or mental health problems, including four women-only services at Wirral, Bristol, Birmingham and Tyneside. In addition, there is the implementation of particular provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with regard to remand and breach, which are expected to reduce the number of women in custody, and the delivery of the Home Office-led Call to End Violence Against Women and Girls, which will address the high levels of abuse experienced by female offenders. The commissioning of women’s services, including women’s community services, has been devolved to local probation trusts to ensure that provision is integrated into local services. This year’s £3.78 million of funding is now embedded in NOMS’ community budget baselines to allow for continued support of provision for women.

As I indicated in Committee when we last considered the issue, I fully agree with noble Lords that it is important that the criminal justice system is properly responsive to the needs of female offenders. I share the view that it is also essential that we take account of women’s experiences and needs. That is why I am pleased that the National Offender Management Service is still rolling out the Women Awareness Staff Programme, currently with a focus on training the trainers, so that they can provide support to staff and voluntary and community sector partners working with female offenders. This covers issues such as self-harm, relationships and abuse, and is complementary to the Women’s Aid best practice framework, Supporting Women Offenders Who Have Experienced Domestic and Sexual Violence.

I am also pleased to confirm that the National Offender Management Service has been working to develop the evidence base around what works with female offenders. Over the coming year, this work will support the strategic approach to female offenders as set out in the National Offender Management Service’s Commissioning Intentions discussion document, published in October of this year. All probation trusts are required by the National Offender Management Service’s Commissioning Intentions document to make appropriate provision for women in the community to address factors associated with their reoffending, using third sector and private sector services, where appropriate.

The National Offender Management Service has also published information on the specific needs of women to support the commissioning of relevant offender services for this group as part of the commissioning round for 2012-13. Already probation trusts across the country are coming up with innovative, new approaches to working with women that reflect the local situation. There are many good examples of women-only provision in the community. For example, Nelson Probation Office in Lancashire has a women-only reporting day. In Durham in the Tees Valley, the trust provides women-only reporting centres in each of the six local delivery units, with community based support and childcare provision located at these points. In Derby, there is a women-specific programme addressing violent behaviour.

--- Later in debate ---

[Lord McNally]

My Lords, I am not sure I shall be able to help the noble Lord, Lord Rosser; he asks lots of questions, most of which do not have a great deal to do with the Bill but have a lot to do with the Government’s declared intention to reform the probation service. We have certainly made no secret of that; indeed, he will be familiar with our consultation paper, Punishment and Reform: Effective Probation Services. He will be aware that this was the first step in determining our approach to how reform is delivered. Further consideration is under way to determine how best to meet the requirements of a probation service that delivers rehabilitation outcomes. We are in the process of carefully considering the way forward and will announce further details of our plans shortly. As I indicated previously, we will be keen to engage with probation staff, representative groups and all those who can make a contribution to the success of this important area of work.

It is interesting—I think I have explained this before to the noble Lord—that the reason why the powers to do all this are not in this or any future Bill is because they are within the powers of the Offender Management Act 2007. During the passage of that Act, there was a debate on the merits of parliamentary scrutiny when establishing, amending and dissolving probation trusts. In the Bill as originally published, no parliamentary procedure applied to the power in Clause 5(1) to establish, alter the name or purpose of, or dissolve a probation trust. The Delegated Powers and Regulatory Reform Committee noted that precedents existed for that, but felt that it lacked sufficient information about how trusts were to be established to make a recommendation about its appropriateness in this context. The committee therefore drew the matter to the attention of the House. In light of the debates on this subject, the previous Administration accepted on the floor of the House that this important power should be subject to parliamentary procedure. The noble and learned Baroness, Lady Scotland of Asthal, asserted that the affirmative procedure would be excessive but tabled a government amendment introducing a negative procedure, which was accepted by this House. On that basis, the Government believe that the parliamentary scrutiny set out in the Offender Management Act 2007 is adequate and we share the view taken by the previous Administration that the affirmative procedure would be excessive. I therefore ask the noble Lord, Lord Rosser, to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that reply. He started off seeking to suggest that the issue raised in the amendment is not really relevant to this Bill, but it certainly is. The Bill seeks to make significant changes to community sentencing and the delivery of those services will be dependent on an effective and properly resourced probation service. It will not be particularly easy to deliver those changes in relation to community sentencing—of course the changes also cover restorative justice and the role of rehabilitation in reducing reoffending—if at the same time it is the Government’s intention to, metaphorically speaking, turn the probation service upside down. That must clearly be a relevant issue in the Bill. Is the probation service geared, both at the present time and in future, to delivering the objectives and changes that the Government wish to make in community sentencing?

The Minister made reference to the 2007 Act. I appreciate that it is his prerogative if he wishes to express an alternative view, but I do not think that the kind of transfer or apparent transfer of responsibilities away from the probation service that seems to be envisaged at the moment was envisaged at the time of the 2007 Act. Obviously, it is the potential implications of what the Government may be putting forward that have led to this amendment calling for the affirmative procedure to be used. I am sorry that the Minister has not been able to give any assurances at all about the extent to which the existing probation service will continue in being. He has not been able to give any assurances about what responsibilities may or will not be transferred away from the existing probation service. Indeed, put bluntly, he has not really been prepared to say anything at all, which will certainly do nothing to damp down some of the concerns over what the Government’s real intentions are. I appreciate that the Minister is not going to say any more so I have little alternative but to leave it at that. I beg leave to withdraw.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Lord McNally

Tuesday 13th November 2012 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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[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.

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[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.

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[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.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Lord McNally

Tuesday 30th October 2012 Lords Chamber

[Lord McNally]

All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.

[Lord Rosser]

As long as we are clear—I think we are; and I am not accusing the Minister of being otherwise —that, whatever happens now, if the amendments are in some way agreed, it will be open to us to have effectively a Committee stage next month where amendments to these government amendments can be put down, debated and voted on, if votes are called.

[Lord McNally]

I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.