Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Tuesday 20th March 2012 Lords Chamber

Moved by

[Lord Beecham]

144A: Clause 54, page 39, line 29, at end insert “and in either case, the regulated person and the person by or to whom the business is referred, each act in the course of a business carried on for profit”

[Lord Beecham]

My Lords, there has been widespread condemnation outside the House, and unanimous condemnation inside it, of the activities of parasitic claims farmers and claims management companies that engage in the process of securing referral fees simply to generate profit. A major objection to the activities of those concerns is that they foster the myth of the compensation culture. People who see advertisements on the streets or in newspapers which invite claims may get the impression that hordes of people are succumbing to the temptation to make wholly bogus claims. In the field of whiplash claims, it is acknowledged that there is some truth in that perception. However, in general terms, as the noble Lord, Lord Young of Graffham, pointed out in his report, there is no substance to the suggestion that there is a widespread compensation culture.

The amendment deals with the position of not-for-profit organisations. We are entirely at one with the Government in seeking to ban referral fees made to commercial organisations simply for the purpose of making profits. However, some organisations—be they charities or membership organisations—receive referral fees from firms of solicitors and perhaps from others whom they appoint to panels on the basis of their expertise and record of service, and whose contributions help those organisations carry out their main purpose. That might be service to members or, in the case of charities, the furtherance of the charitable objectives of the organisation. For example, among the charitable organisations are the Spinal Injuries Association, Headway and Action against Medical Accidents. There are others, too, which receive referral fees and use the proceeds to benefit those whom their organisation was set up to help. Other membership organisations and trade unions do likewise.

When we debated amendments of a similar nature last week, the Minister referred to the main—and understandable—objective of the Government, which is to restrict the cost of litigation. We share that objective. In the case of referral fees, it is perfectly achievable. It does not constitute a cost to the system. If a referral fee is effectively charged to the client, of course that is a cost to the client, and that ought to be avoided. On general costs, costs payable by a losing party to another are either agreed or assessed by the court. Obviously, the court can base its assessment of costs on what the normal tariff would be. I have appeared before the courts many times in 35 years of practice as a solicitor—endeavouring to justify the very modest costs that my firm sought—to explain and justify those fees. In fact, a kind of tariff is applied locally by the courts. In any event, if this were thought to be a danger in the system, it would be possible to allow the courts to deal with any such referral fee, to require it to be disclosed and to make it an irrecoverable disbursement from the paying party. So the question of additional costs can be satisfactorily dealt with.

In last week’s debate, the noble Baroness, Lady Deech, made some interesting points, one of which was incorrect. She said that the referral fees received by some trade unions find their way into the coffers of the political party with which I and others in this House are associated. That is not the case. Payments by trade unions to political parties of any colour come out of the political fund, not the general fund. The noble Lord, Lord McNally, who was once more closely involved with these matters than he is now, confirmed that.

However, the noble Baroness also referred, understandably, to the situation that arose in respect of compensation claims by miners regarding pneumoconiosis —a whole raft of cases over many years. Many law firms and others spent considerable time and money researching these cases and it was a very long time before they were settled and a scheme developed. The abuse in that case was actually rather different from what we are now debating. It was not so much the question of referral fees; it was the fact that some firms of solicitors—happily, not many—not only were paid by the Government under the compensation scheme but had the effrontery to deduct some payments from their clients. That was absolutely outrageous and many of the firms involved were severely disciplined, and rightly so, by the Law Society. But that is a separate issue from that which this amendment and the whole topic of referral fees address.

There is a world of difference between the use of referral fees by claims management companies and the like—simply to generate profit and at the same time perhaps to promote invalid claims on the off-chance that some of them may succeed—and that by other organisations genuinely endeavouring to assist their members and receiving funds which in turn are used for the benefit of the members or the non-commercial purposes, charitable or otherwise, of the organisation. I beg to move.

[Baroness Deech]

My Lords, I will try not to repeat myself, because I spoke about referral fees last week.

Briefly, in response to the noble Lord, Lord Beecham, the evil of referral fees is threefold. First, if the law firm can afford to pay a couple of hundred pounds for each case, then it stands to reason that the case could have been handled more cheaply. Secondly, when work goes to a particular firm of solicitors, it encourages that firm not to compete and not to do its job properly because, no matter what, the work will come to it. The case of the miners to which the noble Lord, Lord Beecham, referred and which I described last week did not arise directly from referral fees, but one can see the risk. If a firm knows that 23,000 cases will come its way willy-nilly, why should it try very hard? Why should it not take short cuts?

Thirdly, referral fees arrangements deprive the consumer of choice. The argument for referring consumers to a particular firm is that they would not otherwise know where to go. These charitable organisations, to which the noble Lord referred, could do the job just as well by listing a few firms and helping their clients to go to those firms without expecting money to come their way. As far as I can make out from research on the web—I stand to be corrected—on its web page on legal services the Labour Party says that clients who are members of the Labour Party will be referred to a particular firm of solicitors if they have a problem. If one continues to click through the pages, the firm says in very small print, buried deep in the internet, that for every case that comes to it from the Labour Party website several hundred pounds will be paid to the political party.

To make things even worse, referral fees, some of which may well come from legal aid, could be channelled inter alia to a political party. There is no case for referral fees. I encourage the House not to be wooed into any set of exemptions, even where worthwhile charities are concerned, because the bad nature of referral fees spreads throughout the system, regardless of who uses them. I hope that your Lordships will reject this amendment and any similar ones. Now is the time to end the practice of referral fees.

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

My Lords, this proposal is not in any way union bashing and I am sorry that it has been caught up like that. I was pleased that when the noble Lord, Lord Beecham, opened the debate he joined with the Government in our general desire to ban referral fees. It is of course right that injured people should be able to pursue claims and under our reforms they will be able to do so. Costs will be more proportionate and the damages they receive will be increased.

However, it is wrong for third parties to be able to profit from referral fees for personal injury cases in this way. I found the intervention of the noble Baroness, Lady Deech, last Wednesday extremely powerful and I recommend noble Lords to reread it. The noble Lord, Lord Beecham, is right: it is not four-square with referral fees but it illustrates the danger of sweetheart relationships in this area. The Law Society was quite right—but rather belatedly so—to deal with a great injustice to miners who had already suffered much in their industry.

On the question of political funding, yes, I understand the difference between union general funds and the political fund and that it is the political fund that goes to the Labour Party. However, again, the noble Baroness, Lady Deech, explained that she was referring to the party itself acting as a referee. Even as I speak, I wonder whether this merry thought has occurred to any other political party. I know political parties look for ways to earn funds and, if this has been thought up by the Labour Party, it is, at the moment, within the law. However, we do not think it is right.

I also welcome the intervention of my noble friend Lord Phillips. I do not always welcome his interventions but this time he has put his finger on it: we are not preventing solicitors taking on a case at reduced rates or for free; nor are we preventing solicitors from making donations to charities or other not-for-profit organisations. Charities representing injured people will still be able to offer advice and recommend the best law firms. However, they should do that in the claimant’s best interest, not on the basis of what fee they can get for that claim. The amendment would not only allow an exception for charities and unions but for all not-for-profit organisations. I fully appreciate that trade-union, charity and political-party referral fees can be nice little earners, but that kind of relationship is not in the best interests of the consumer.

I say to the noble Lords, Lord Monks, Lord Brooke of Alverthorpe and Lord Martin, that I am well aware of the record of trade unions in legal advice and the help that they give to their members. I have no doubt of the accuracy of the figure of 50,000 a year given by the noble Lord, Lord Monks. However, I also take the point—which I did not know—that only two trade unions use referral fees. This suggests to me that this is not the universal attack on trade unions that anybody has suggested. We simply say that whether it be political parties, trade unions or charities, it is not healthy or in the consumer’s interest to have sweetheart deals between unions, charities or political parties and individual law firms.

The amendment goes further than earlier proposals. Some claims management companies are currently not-for-profit organisations and others could become not-for-profit bodies in order to get around the ban. In Committee, the noble Lord, Lord Bach, tabled an amendment that would have made an exception for charities only. This amendment now makes a wider exception which would exempt unions, political parties and not-for-profit claims management companies as well.

We believe that referral fee arrangements are wrong in principle. Under the cloak of support for charities, the amendment would allow payments for the referral of personal injury cases by a wide range of organisations. This amendment would make a mockery of the ban on referral fees, which the Opposition have claimed to support in principle—and I believe they do support it in principle. I really think—and the more I listen to this debate the more I think it—that for the Opposition to press this amendment is simply wrong-headed. I hope that the noble Lord will withdraw the amendment.

[Lord Beecham]

My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.

That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.

I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.

The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.

Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.

I feel strongly about this—

[Lord Thomas of Gresford]

My Lords, drawing on his long experience, can the noble Lord tell us when referral fees first reared their head? I do not recollect them 20 or 30 years ago. Does he know when they began?

[Lord Beecham]

To the best of my recollection, they have appeared in the past 10 to 12 years. I have not myself been heavily involved in the practice in which I was a senior partner for the past nine years, much to its relief and mine. Having had our debate and despite the pleas of the Minister, I wish to test the opinion of the House.

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[Lord Clement-Jones]

My Lords, first, I declare my membership of the Law Society. As we have discussed both in Committee and on Report, referral fees are one of the major causes of the public’s perception that a compensation culture exists in this country. We have heard some powerful speeches across the Benches on the subject of referral fees. My noble friend Lord Thomas called them insidious and I agree. For that reason I strongly support Clauses 54 and 55.

Although there has been some difference of views on the provisions for referral fees set out in Clauses 54 and 55 as they impact on charities and trade unions, generally there seems to be a common view that although these clauses are useful, if they are to catch all the abuses they need to go further—perhaps not as far as the right honourable Jack Straw would want to go in terms of making it a criminal offence, but covering the full range of malpractices. For instance, there is nuisance marketing in personal injury—specifically, advertising in hospitals, cold calling and spam texts; financial incentives to claim; selling contact and case details of personal injury victims without their consents; and auctioning claims to the highest bidder. Mr Simon Burns the Health Minister recently told English NHS hospitals that it was not acceptable to display advertisements for law firms encouraging no-win no-fee compensation claims. That was a firm and wise action, and I commend it.

In our debate in Committee, my noble friend Lord Carlile of Berriew, on the subject of text messaging immediately after an accident without injury even taking place, made a powerful speech in support of extending Clause 54. My noble friend Lord McNally expressed sympathy with the intention behind the amendment and said that the Government would consider it further. I hope that he will tell us today where the Government have got to. Can we expect white smoke on Report or Third Reading or, indeed, a text message? I beg to move.

[Lord Beecham]

My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.

I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.

[Lord McNally]

My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.

Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.

On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.

I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.

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[Baroness Howe of Idlicote]

My Lords, I support the amendment. The noble Baroness, Lady Linklater, knows so much about the probation service and the magistracy. She draws attention to very little of which we should not take a great deal of notice. What my noble friend Lord Ramsbotham has just said about what is happening in the probation service is alarming. I hope that someone will be able to explain what has happened in a way that makes sense. I go back a long way within the areas of the magistracy and probation and the tremendous work that they do with offenders over very many years. I was a juvenile court chairman. I was horrified when I read the report by the noble Lord, Lord Carter of Coles. At that moment, I said to myself that if I were a probation officer, I would leave the service because I knew it had no future. It is, therefore, even more worrying to me that the whole of the very effective work that it still carries out is under this kind of threat. I hope that the Minister will be able to reassure us that this is not the way forward.

[Lord Beecham]

My Lords, as a signatory to the amendment, I am pleased to say that the Opposition is more than happy to support it and should the noble Baroness not receive a satisfactory answer from the Minister—we live in hope—and wish to press the amendment, we will certainly endorse it. I was particularly impressed by the remarks of my noble friend Lord Ponsonby, who speaks from direct and daily experience of these matters in a busy court in the capital. We are already 25 minutes into this debate and there is much more to come, so I am content to rest the Opposition’s case at this point.

[Baroness Northover]

My Lords, this amendment returns to issues raised by my noble friend Lady Linklater in Committee. I very much welcome the contribution that she has made on this issue during the passage of the Bill. My noble friend has considerable experience, to which other noble Lords have referred, in bringing magistrates and probation together and building trust in alternatives to custodial sentences. She is very much to be applauded for that. Like her, I pay tribute to the work that magistrates and probation trusts do.

We agree with the noble Baroness that it is important that probation trusts provide information to sentencers about the services they provide in delivering community sentences. We encourage that sharing of information. We agree that such liaison is beneficial both to magistrates and probation. We also agree that it is important that magistrates see for themselves the work of probation trusts. We agree with the intention behind the amendment, but we would point out that the current provisions in legislation already allow for this kind of liaison between probation and magistrates to take place. The noble Baroness is seeking to get two sets of people to talk to each other and that can already happen. There is no statutory barrier to it, but I hear what she says about trying to ensure that this happens, and we are certainly in favour of promoting best practice. We will look to see if there is more that we can do to ensure that best practice is brought to the attention of probation trusts. We are also ready to work with the Magistrates’ Association and others to ensure that we have practical arrangements in hand to encourage magistrates to take part in meetings so that information can be exchanged. We can, however, do this without changing primary legislation. I also note that the amendment does not ensure that magistrates attend these meetings—which would, of course, not be appropriate—it instead places the duty on probation trusts to provide information. As my noble friend Lord McNally said in Committee, we are not aware of a problem in the provision of information but would welcome further information on it if one exists.

I understand what the amendment is trying to achieve. It provides two illustrative examples of what regulations might cover. They include guidelines for liaison and a scheme for magistrates’ expenses. I would like to point out to my noble friend that both of these are, in fact, already covered by existing arrangements. Guidelines for liaison meetings are set out in a protocol issued not by the Government, but by the senior presiding judge. We think it is right that the protocol should set out the process so that there is no suggestion that magistrates should be unduly influenced in sentencing by consideration of a local probation trust’s priorities, rather than what they see as the appropriate sentence in an individual case. That is why the senior presiding judge issues guidance, not the Government. We agree that there should be guidance on these meetings, but we think that the current system is more appropriate and that the guidance—especially since it applies to the judiciary—should come from the senior judiciary, not the Government.

The second example which the noble Baroness gives relates to the payment of expenses. It is true that Her Majesty’s Courts and Tribunals Service does not routinely pay expenses for meetings between magistrates and probation. That does not, however, mean that magistrates can not claim expenses. They can, in fact, claim expenses from the probation trusts in attending these meetings. This is an area where the Government might assist by doing more to publicise the process if magistrates are unaware of it. We will certainly consider, as a practical approach, encouraging better liaison by publicising this.

The noble Lord, Lord Ponsonby, referred to a statutory committee. The amendment would not create a statutory committee; it would merely provide a regulation-making power to promote such arrangements if that was what was decided. On the questions of the noble Lord, Lord Ramsbotham, about ordering the probation service out, we are not aware of the detail of that situation. We would welcome further details, and I will then write to the noble Lord with our reaction to what sounds like a very concerning incident.

I hope that the noble Baroness is reassured that we are committed to best practice regarding liaison and that we will look at practical solutions. We welcome her input on guidance and expenses under the current legislation. I hope that, on that basis, she will feel able to withdraw the amendment.

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[Lord Brooke of Sutton Mandeville]

My Lords, I shall be exceptionally brief. Like my namesake, the noble Lord, Lord Brooke of Alverthorpe, I congratulate everybody who has made possible what has happened in the course of the last three or four months. I was a roughrider in the column of the noble Baroness, Lady Finlay of Llandaff, when she originally raised the South Dakota project. I have no intention of repeating anything that I said on the police Bill, except that I am extremely grateful to her for letting me know, after I remarked in the police Bill proceedings that the South Dakota legislation had been transferred into California, that although the Californian legislation is permissive, the Sacramento experiment is going forward. I am wholly delighted by this turn of events. Having had a very minor part at an earlier stage, I find it very satisfying to see the momentum that has gathered.

[Lord Beecham]

My Lords, I am not sure what the correct collective noun is for a group of persuasive Baronesses, but whatever it is, we—the House, and indeed society—are greatly indebted to this particular group of persuasive Baronesses, supported as they have been by the occasional male Member of this House.

I would like to join other noble Lords in congratulating the Government on responding so positively and readily to the proposals to carry forward the pilot scheme and to come forward with a legislative framework to adopt the proposals. These have been pushed very hard by the Mayor of London and, indeed, by London Councils as an organisation. There has been complete unanimity politically in London, and in this House too, about the merits of this scheme.

Coming as I do from a city where, unfortunately, alcohol consumption is particularly high—leading generally to low-level crime and a low level of violence which is nevertheless a disturbing social phenomenon—I am very glad that we are beginning to see an approach here that we hope will make a difference. As has been pointed out, however, an alcohol strategy is still awaited. This is perhaps only a first instalment in what may need to be a major review of how we deal with these problems.

The noble Baroness, Lady Finlay—who has been so much the moving spirit, if I can be forgiven the use of that term, in these matters—mentioned one particular matter: domestic violence. There has been consultation about this, as the noble Baroness rightly said. At a meeting held in May 2011, all the violence-against-women agencies present expressed,

“high levels of concern about this scheme operating in relation to domestic violence”.

They gave as reasons that tackling alcohol in itself,

“does not tackle domestic violence … implies that domestic violence behaviour is driven by alcohol, which is not the case … domestic violence can occur when men are sober”—

or when women are sober, as it is not always one-sided—and,

“implies that physical assault (which is linked with alcohol) is the main/only form of domestic violence”,

as that is not correct either. There was,

“general consensus that the additional elements which would need to be considered for DV”—

domestic violence—

“cases, including risk assessment and support”,

would make the matter very complex.

That is not in any way to derogate from the proposals being made, but it does emphasise the need to look carefully, in the context of the pilot, at what will be run as part of the experiment, and to look very sensitively at the concerns of the organisations that work most closely with women as the principal victims of domestic violence, to see whether this is necessarily the most appropriate way of dealing with those problems.

I certainly have an open mind about that, and I assume that the Government would as well. I am therefore just uttering a word of caution. It should not necessarily be assumed that domestic violence is an appropriate topic for inclusion in a scheme of this kind. It is a matter that needs to be tested. The American experience might be helpful in that respect, of course, but the culture is not necessarily the same here as it is in South Dakota or other parts of the United States. I think that we have to be a little careful about jumping to conclusions.

With that single reservation—it is only a note of caution—I very much endorse the principle and the Government’s amendments. I would also like to endorse what the noble Lord, Lord Avebury, has said about costs. I assume that the Government would cover the cost of pilots as they take place in localities. In local government parlance, this would be a new burden, and the convention is that such new burdens are funded by government. As it is a pilot, it should not be too expensive to run—and ultimately, we hope, the public purse will benefit significantly from any savings that accrue, not least in the health service, where such savings would be extremely desirable. I mean savings not only in financial resources but in the time and skills of staff.

The Opposition strongly support this principle. With that note of caution, we congratulate the Government and look forward to taking matters further. Perhaps I may also ask whether the Minister or her colleagues would be prepared to meet before the pilots are instituted with representatives of the organisations concerned with violence against women to explore their concerns and to see whether, perhaps together, a joint approach might be worked out to test the scheme in practice or to see how it might be modified to reflect the real concerns they have expressed. We certainly support the Government and these amendments.

[Baroness Northover]

My Lords, I thank the noble Baroness, Lady Finlay, and my noble friend Lady Browning for their incredibly kind words to me. However, it is they who have been the doughty fighters who have brought us to this position. I should also like to thank my right honourable friend the Secretary of State, Ken Clarke, for his help in taking forward this innovative idea.

The noble Baroness, Lady Finlay, and the noble Lord, Lord Beecham, mentioned domestic violence, and as both noble Lords emphasised, these are complex issues which require multifaceted approaches. We will need to see how, in tackling the abuse of alcohol, there might be a beneficial effect in this area as well. The provision is not targeted at domestic violence, as noble Lords will appreciate, but we will need to see what we can learn from its possible effects. I would be extremely happy on behalf of the Government to meet the organisations to which the noble Lord referred. I know that the noble Baroness, Lady Finlay, expressed an interest as well. I really appreciate that and look forward to taking that further forward. It is extremely important that we discuss what is suggested here with such groups.

We agree with the noble Baroness, Lady Browning, that alcohol treatment is extremely important; as a spokesperson for health, I hope that I can reassure noble Lords that we fully recognise that. I want to reassure the noble Baroness that we believe that the pilots are there so that we can learn from them. We need to learn what works elsewhere and see how it might need to be adapted within our own legal, social and economic situation. However, we are optimistic that these are interesting proposals to take forward.

My noble friend Lord Avebury asked about the funding for the pilots and the noble Lord, Lord Beecham, also flagged that up. Existing resources will be drawn on for some of the work with breathalysers, but the Government are indeed providing funding for the pilots and this will be announced shortly. My noble friend Lord Avebury asked about the areas for conditional caution pilots. I hope he will be pleased to hear that this will be announced in the alcohol strategy next week.

Above all, I thank noble Lords for their support for the government amendments, and especially for the work of the noble Baronesses, Lady Finlay and Lady Browning, and others in bringing us to this point. I look forward to our learning from these pilots.

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[Lord Ramsbotham]

My Lords, I rise briefly to support the noble and learned Lord, Lord Woolf. There was an extremely useful conference last week by the Thames Valley Partnership which has been pioneering restorative justice for many years. It was interesting to hear exactly how far the National Offender Management Service has gone in preparing for restorative justice to be administered in every prison and every probation area around the country. Indeed, staff are being trained to do it. In addition, the police have trained the all-important committee supervisors and people who run the committees which make it work. Therefore, it would seem logical if this effort is to be overseen and able to come to fruition that it should be backed up by the statutory recognition in the Bill if at all possible.

[Lord Beecham]

My Lords, I strongly support the amendment moved by the noble and learned Lord, Lord Woolf. We are entirely in agreement that restorative justice represents a significant way forward. It is calculated, as the noble Lord, Lord Dholakia, said, to save public funds, reduce reoffending rates and prove acceptable to the wider community, which is not as hard-line in these matters of penal policy as sometimes people imagine. Restorative justice has been shown to be welcomed by 80 per cent of the victims who participate in it. That in itself is a testimony to its effectiveness. I hope, therefore, that the Minister will feel able to accept the amendment but, if she is not, I hope that she will undertake to meet the noble and learned Lord and other colleagues before Third Reading to allow a further and final opportunity to discuss the way forward to improving this part of the Bill, recognising that it will contribute to the intentions of the Government.

[Baroness Northover]

My Lords, these amendments from the noble and learned Lord, Lord Woolf, and my noble friend Lord Dholakia return to the question of restorative justice. The noble Lords have been outstanding exponents of the importance of restorative justice and we appreciate the contribution that they have made in the House, nationally and internationally in this matter. The Government support the principle of restorative justice as part of an effective response to crime. It offers a crucial opportunity, not only to assist in the rehabilitation of offenders by making them face the consequences of their actions and seek to make amends for the damaged inflicted on others, but to give victims a greater stake in the resolution of offences and in the criminal justice system as a whole. Indeed, victim satisfaction rates have been extremely positive. Additional work in this area will enable us to realise the benefits of restorative justice further. We already have encouraging evidence around its impact on reoffending rates and anecdotal evidence that it encourages offenders to seek further necessary interventions, such as drug and alcohol treatment.

As I mentioned in Committee, we are committed to delivering greater use of restorative practices across the criminal justice system and we are putting a great deal of time and effort into building up the capacity of youth offending teams, probation trusts and prisons to provide restorative justice services, investing over £1 million in order to do so. We just heard reference from the noble Lord, Lord Ramsbotham, to the Thames Valley restorative justice partnership. It is developing training materials and guidance for using restorative justice in the adult system as part of our response to more serious offences. Its experience is invaluable.

These amendments take a three-pronged approach to adding restorative justice to the current legislation. The first would make restorative justice a statutory purpose of sentencing alongside the existing purposes of punishment, reduction of crime, rehabilitation, protection of the public and making reparation to offenders, as set out in the Criminal Justice Act 2003. The second would create a new restorative justice requirement for a community order or suspended sentence order, while the third would add the words “restorative justice” to the existing activity requirement.

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[Lord Ponsonby of Shulbrede]

My Lords, as I sit as a magistrate in both the youth and adult courts, I make one simple point. In the youth courts, we routinely say to youths, “You must behave. If you do not behave, you may come back to the adult court and of course that is a much more serious matter.” What we do not tell them is that the reason that it is a much more serious matter is because there is much less support for them in the adult court system. Everything that the noble Lord, Lord Ramsbotham, said is absolutely right. We see a huge, disproportionate, number of young men from 18 to 24 years old. There are attendance centres, which do good work. I have been to a number. However, it is very minimal compared with the support that this group needs.

[Lord Beecham]

My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.

I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.

[Lord McNally]

My Lords, we keep coming round to these amendments from the noble Lord, Lord Ramsbotham. As he said, we have had debates in this House and bilateral meetings about them. There is a certain disagreement. The noble Lord, Lord Ramsbotham, seems to think—and I am sure that this will provoke him to get to his feet to say that I have got it wrong—that we have to have a strategy and a command structure and, after that, all will be well. I am old fashioned enough to believe that the buck stops with the Minister. The constant desire to have strategies is not a real substitute for doing things.

Having said that, I said earlier today that you do not have to be in this job long before you realise that we have too many women in our prisons. Neither do you have to be in this job very long to see that the 18 to 24 year-old age group among males is a key area for criminal behaviour. Therefore, we have to think very hard about how we break this cycle of criminality. The noble Baroness, Lady Linklater, acknowledges that this is a difficult group. I cannot quite agree with her about regretting that she is no longer a teenager. I would like to be a teenager again, but knowing what I know now. It is a pity that life does not give you that particular deal.

[Lord Beecham]

Does the noble Lord want to revert to membership of the young socialists a little bit?

[Lord McNally]

I said that if I knew then—let me get back to the speech. The noble Lord, Lord Ramsbotham and the noble Baroness, Lady Linklater, acknowledged that the group we are discussing is a difficult one but that many of the ideas for dealing with it are extremely expensive. We are trying to deal with it but the Government’s view is that it is not appropriate to prescribe in detail from the centre processes which purport to improve outcomes. Such a way of working would lead to inflexibility and take up resources which are better deployed elsewhere. We are looking wherever possible to empower local decision-making and delivery by prison and probation trusts so that they use resources in a way that responds to local priorities. That also fits with our policy for the management of young adult offenders as individuals based on an assessment of risks and needs rather than their age.

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[Lord Thomas of Gresford]

Amendment 154YUA would add the need for reports to the amendment moved by the noble Lord, Lord Ramsbotham. Although I welcome the abolition of IPPs, I am still concerned about those who have served their tariff but have not been released. The best way of dealing with that is to keep a very close eye on what happens to them. Under my amendment we would know every six months the number of IPP prisoners remaining in custody after their tariff date has expired, the arrangements made for them to complete their courses, the proportion of such prisoners who have already completed their courses, and the number of outstanding applications to the parole board for release. One would hope that within a foreseeable period, perhaps two years, one would see that there was no need for a report because there were no IPP prisoners left in this category. That is the purpose of my amendment, and I look forward to my noble friend’s response.

[Lord Beecham]

My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.

Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.

Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.

[Lord McNally]

My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.

The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.

In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.

I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.

On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.

On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.

My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.

Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.

I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.