Clause 5 — Standard powers and duties of community support officers

Orders of the Day – in the House of Commons at 8:00 pm on 24th October 2006.

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Lords amendment: No. 5.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I beg to move, That this House
disagrees with the Lords in the said amendment.

The amendment removes clause 15, which would allow punitive conditions such as a fine to be attached to a conditional caution.

Conditional cautions have been operating in a number of areas and have been successful in dealing with offenders who would otherwise have had to be prosecuted in the courts. The scheme's merit in dealing with petty offenders has been recognised both in this House and in another place. However, the usefulness of the conditional caution has been limited by the requirement for conditions that are either to make reparation or for some form of rehabilitation. They cannot at present punish the offender. The Government believe that there are considerable advantages in extending the scheme to allow punitive conditions, including fines, to be attached. That is why we want to remove the amendment agreed in the other place.

The conditional caution scheme was introduced in the Criminal Justice Act 2003 as a way of dealing quickly with low-risk offenders who admit committing relatively less serious offences. They will be diverted from prosecution, subject to certain important conditions. The first is that the conditional caution can be offered only when there is sufficient evidence to charge a person with an offence and when the prosecution has decided that that offence could be prosecuted in the public interest. Those criteria must be fulfilled.

Secondly, the offence itself must be appropriate for a conditional caution. The caution is offered by the Crown Prosecution Service, in consultation with the police, in cases where the offender would probably have received a fine, been ordered to pay compensation or given a conditional discharge if the matter were prosecuted in a magistrates court.

Thirdly, the defendant must admit the offence. Fourthly, they must agree to be cautioned. Crucially, at no time does the defendant lose the right, if he wishes, to have his case dealt with by the magistrates court in the normal way. He can go to the magistrates court, enter his plea and receive a sentence in the normal way. That right remains open to him at all times until he has agreed. Indeed, he may wish in due course to go back to that court. The defendant will also need to agree to fulfil the conditions attached to the conditional caution.

All those conditions must be complied with. If they are not, the defendant will be brought back and sent to the magistrates court, which will deal with the defendant for the original offence. No extra penalty will be offered for the failure to comply with the conditional caution. That is the process.

The scheme will help to free up capacity in the magistrates courts so that they can deal with more serious and contested cases. I am a great believer in the idea that the magistrates court is a forum in which contested cases can best be determined, and also in which serious cases can be dealt with well. A programme of conditional cautions has been running already in a number implementation areas and we are now ready to roll it out across the country.

The magistrates courts' own statistics show that the average time taken for a non-motoring guilty plea to be dealt with is 113 days—that is three and a half months. In addition, the court normally gives further time to pay a fine or compensation. Some guilty pleas can require four hearings. Conditional cautions can be much quicker in most cases, although not all. It is sometimes necessary, for example, to identify whether a condition to attend a drug rehabilitation centre can be complied with, and so various reports and agreements to take someone may have to be undertaken or addressed. So, it can take more time to deal with a conditional caution, on occasion. However, the aim is that, by and large, when the scheme is properly rolled out, we should be able to deal with most conditional cautions within about 48 hours. In many cases, the time may be much shorter than that. In those circumstances, the outcome should enable compensation to be paid much more quickly, for example.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

I apologise—I was not present in Committee—but what is the incentive for someone to choose a conditional caution over appearing before the magistrates court?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

There are a number of incentives. One is that the matter will usually be dealt with much more quickly. An offer is made and, in a sense, the defendant then has to choose whether to accept that offer or to take the matter to the magistrates court, with all the time that that may take. There is a greater degree of certainty, because the defendant knows what the offer is, whereas he does not really know what the magistrates court may do. He will be able to determine whether he can afford to pay the fine—or whatever it is—there and then. There are also limitations on the level of fine that can be imposed as a result of a conditional caution. The limitation is about a quarter of the maximum in a particular case or £500. The penalties will be constrained, in terms of what can be done, if we get all the proposals that we want through. So, there are some advantages to the defendant in choosing a conditional caution. He will get free legal advice.

Let me take the hon. Gentleman through what would happen. Let us say that a defendant has just been arrested, is brought to the police station and is being charged with driving away from a garage without paying for the petrol. He has got a few previous convictions, but nothing major. He is not a long-term recidivist offender. I will describe how we would like to see things operate. They have not always operated in this way in the pilot areas, because we have been looking at how we can get things to develop, but the aim is that the scheme would operate in the following way. The offence would be considered and a decision would be made about whether this was an appropriate matter to be dealt with by a conditional caution. The police would telephone the Crown prosecutor, or the Crown prosecutor may well be in the police station in some of the charging centres. The question would then be the conditions that needed to be imposed. When the conditions were agreed by the prosecutor, an offer would be made to the defendant. In such circumstances, it would be of key importance that the defendant had admitted the offence and that there was no doubt about his culpability.

After the prosecutor made the offer, the defendant could ask for free legal advice. He would then decide whether to accept the offer, and a number of things could then happen. For example, it might take a short time to find out how much compensation should be paid. In the example that I cited, for instance, it could be straightforward to calculate the compensation, if the cost of the petrol was known, but if the offence was a form of criminal damage, it might take some time to obtain quotes to determine what the value of the compensation should be. If the defendant did not agree to comply with the conditions, he would end up going back to the magistrates court to be dealt with in the normal way.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 8:45 pm, 24th October 2006

The Solicitor-General has described how the system will apply to an offence of dishonesty. Will he remind the House of the classes of offence to which the conditional caution may apply? For example, I would be very concerned if it applied to classes of burglary.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

Essentially, we are looking at petty offences, although some of them, such as theft, concern people a great deal. We are certainly considering shoplifting and some aspects of criminal damage. We are also considering disorderly and antisocial behaviour.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

It would not be our intention that burglary, especially residential burglary, would be dealt with by way of a conditional caution. My view, for what it is worth, is that residential burglaries deserve custodial sentences, although the courts do not always impose them. The conditional caution would thus be singularly inappropriate in such circumstances. At this stage at least, we do not think that a conditional caution would be an appropriate way of dealing with offences such as actual bodily harm, carrying a knife and causing knife injuries.

The system would be used to deal with the 75 per cent. of cases that are dealt with in the magistrates court by way of a fine. Sometimes such fines are relatively small—£25, £50, £100, or perhaps £150. Of course, costs can be claimed against a defendant, but it can take a long time to get that money out of them. We are looking for a way of ensuring that the magistrates court, which is one of the best ways of dealing with petty offences, is able to deal with contested cases—when someone disputes their guilt—and more serious cases.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

The Solicitor-General outlines the way in which the police will contact the CPS and how the CPS will make decisions. It seems ambitious to think that that will all be done in 48 hours. Have the pilots achieved that?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

By and large, the pilots have not been an attempt to achieve that. The pilots have allowed us to test various ways of doing things. Several of the pilots have shown that it can sometimes take about 14 days for the process to be completed and a conditional caution agreed. The negotiation process between the police and the CPS has been a learning exercise. The aim is to move beyond that. As the hon. Gentleman will know, prosecutors often work in police stations, and particularly in charging centres, so they are certainly available during the day. It is envisaged that they will be able to make decisions about conditional cautions, there and then. It is also envisaged that, in due course, there will be a telephone system so that the prosecutor can be telephoned for a decision on what the conditions should be. That will speed up the decision-making process.

Where conditional cautions have been granted, the response of victims has, by and large, been positive. Their compensation was paid quickly, and they found that the matter was dealt with much more expeditiously than it would have been by the court system. By and large, the system works well, but there are some problems. Before discussing them, I want to make one further point to Mr. Walker, who asked about the advantages of the scheme. One advantage, of course, is that such cautions are not registered as a conviction, which can be a considerable advantage for particular individuals.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

I hope that the Solicitor-General will not think this churlish, but he has been speaking for 15 minutes, and we have to complete discussion on all the amendments by 10 o'clock. On Report, the House was unable to debate any of the amendments on the prisons inspectorate, and many of us are concerned that the concessions that the Government are making on that subject are conditional. I would be grateful for his guidance: is it the Government's intention that we will have an opportunity to discuss the next group of amendments this evening, or is it the business managers' intention that this debate will run until 10 o'clock, so that once again we will not have the opportunity of discussing—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. The hon. Gentleman knows that his intervention must be related to the Lords amendment under discussion.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I sought to be helpful to the hon. Gentleman's colleagues who have asked me questions. If I can make progress, we should be able to deal with the matter under discussion and move on to others.

The scheme has worked well, as I said, but the conditions that can be attached must have the objective of either rehabilitating the offender, or ensuring that he makes reparation—for example, by paying compensation for the offence. The petrol thief would pay compensation for the cost of the petrol, or could do something by way of rehabilitation, such as writing a letter of apology. Such conditions are undoubtedly useful, as they provide the offender with an opportunity to take part in rehabilitative programmes, especially to deal with alcohol or drug abuse. For example, a drug-using prostitute might be given the condition of attending a drug clinic, and that might help them to deal with the real cause of some of their problems.

Offenders have widely accepted the opportunity to pay compensation to the victim for the damage caused by their offending behaviour. The important result is that the victim typically receives compensation without experiencing the usual delay associated with the court process. However, that restricts the scheme only to those cases in which there is an identifiable victim who has suffered quantifiable loss, or in which the offending is linked to an underlying personal problem that can be the subject of an order. A fine or punishment, such as some form of work in the community, is not currently allowed. The petrol thief, for example, could benefit from learning a lesson by having to pay a fine as a deterrent, but at the moment we have to go to the expense of going to court to ensure that that happens.

During the implementation and operation of the scheme, we identified some limitations in the legislation. For example, the term "reparation" implies putting right the specific harm or damage that the offender caused, but there are occasions when that is not possible. The harm may have already been put right by the victim—he may have repaired what was damaged—or it may be impossible to identify the specific damage caused by the offender.

Punitive conditions would allow the offender to make another contribution towards paying for the damage caused, such as undertaking work in the community that is not directly related to the offence. Not all offences will involve quantifiable loss, but they may still disadvantage the local community. Punitive conditions that form part of a conditional caution could allow an offender to undertake unpaid work that benefits the local community and its residents to make good the harm caused by antisocial or disorderly behaviour—in other words, it would allow community payback.

Another type of condition that the provision would enable is fines. Three quarters of the wide range of cases that come before the magistrates court are dealt with by way of a fine—sometimes a small one, as I indicated. Although the main objectives of the conditional caution scheme are to ensure that reparation or rehabilitation takes place, the availability of a condition that the offender pay a fine would improve the ability of the scheme to provide a tailored response to offending. This condition would not be at the expense of other, more suitable conditions.

Currently the police can issue a penalty notice to punish the offender, and the CPS can give a conditional caution where the object is to compensate the victim. There may be cases where the appropriate response is to include both of these measures. Prosecutors will also need to ensure that where a financial penalty condition is imposed, it is proportionate, appropriate and achievable. So, in the case of the defendant who drove off without paying for petrol, a fine could be imposed as well as a requirement to make compensation and perhaps write a letter of apology. All those penalties would have to be proportionate, appropriate and achievable.

We believe that it is consistent with the aims of a fair, equitable and proportionate scheme to provide prosecutors with a limited amount of discretion to impose a condition of payment of a fine, and to allow mitigating factors and the means of the offender to be taken into account in assessing the size of that fine.

As I said, there are a number of safeguards built into the scheme to protect the rights of the offender. It is important to reiterate those. They include the opportunity for free legal advice, the requirement of an admittance of guilt by the offender, and acceptance of the conditional caution in writing. Again, I emphasise that an offender can always choose to reject the offer of a conditional caution and instead go to court, so the offender always has a choice. In the event of non-compliance with a conditional caution, the offender can be prosecuted for the original offence. There is no additional sanction.

I have already referred to the safeguards that we have built into the scheme, but I am aware that there are still some concerns. I will listen with care to the concerns that are likely to be expressed from the Opposition Benches and we will consider them. We want to ensure that we can consider punitive penalties, as well as rehabilitative and reparational ones. An extension of the scheme to include punitive conditions will require a revision of the conditional cautions code of practice and would be subject to public consultation and to the affirmative resolution procedure in the House. That will ensure transparency and provide both Houses with an opportunity for further discussion on more detailed aspects of the scheme.

In conclusion, the Government believe that the clause allowing for punitive conditions is a sensible and considered addition to the conditional cautions scheme. It provides the opportunity to deal fairly with offenders willing to admit their guilt. It also allows a swift and proportionate response that is effective and has adequate safeguards. I urge the House to overturn Lords Amendment No. 5.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

We supported conditional cautions, which were intended to enable the rehabilitation of offenders or ensure that they made reparation for the offences that they had committed, but we believe that punitive conditional cautions, which attach a punishment to a caution, enter new and dangerous territory. First, an important issue of principle is at stake. By definition, cautioning should not involve punishment. The expression "punitive caution" is a contradiction in terms—a classic oxymoron, rather like "military intelligence", "conservative intellectual" or, for that matter, "new Labour".

Punishment should be decided by the courts. It is wrong for prosecution to be involved. That is a legal principle which, as the Solicitor-General knows better than I, has been enshrined since the Bill of Rights, which provided

"That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void".

It is for that reason that the Magistrates' Association has described the proposals as

"contrary to the principles of justice".

The Government's argument that the principle is already conceded in relation to fixed penalties, which has been deployed during consideration of the Bill, is wrong. As Lord Lloyd of Berwick pointed out in the other place,

"fixed penalties are entirely different. The amount is fixed by statute or by-law; it does not in any way involve the prosecution's discretion".—[ Hansard, House of Lords, 10 October 2006; Vol. 685, c. 124.]

These proposals will turn prosecutors into sentencers.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

The hon. Gentleman is no doubt aware of the procurator fiscal system in Scotland. Will he tell me whether he thinks that that system includes all the awful things that he has claimed for this scheme?

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs) 9:00 pm, 24th October 2006

I am not aware of the procurator fiscal system in Scotland, but I am aware of the great concern expressed by the Magistrates Association in particular that turning prosecutors into sentencers breaches a principle of English law.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

There is a slight difficulty with that argument. When one has fixed penalties, one has at least got an adjudication of guilt, which, although it flows from what is effectively a guilty plea, is instigated by the prosecution—the police. I am not sure whether I can see a difference in principle between a conditional caution and a fixed penalty.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I understand my right hon. and learned Friend's point, but I think that there is a difference in principle because the fixed penalty is statutorily prescribed, whereas this procedure requires an offender to admit their guilt and then accept a caution, which will be decided by the prosecutor according to a variable measure. That potential variation turns the prosecutor into a sentencer, whereas a fixed penalty is fixed by this House and known in advance. The procedure will confuse the roles of sentencer and prosecutor, which lies at the heart of the concern expressed by the Magistrates Association and others.

The Government have said that offenders can choose to refuse a caution, but the concern is that people will feel pressured to accept a caution and the administrative punishment that follows rather than going through a prosecution, even if they are innocent, either because they fear what the prosecution might involve or because they do not feel well advised.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

Although the scheme proposed by the Government appears superficially attractive, I share my hon. Friend's concern. The situation is similar to cases in which the police send people letters that say, "You have been caught speeding—pay £60. You can take this to court, but if you do, be warned that we could fine you £2,000." That approach has caused concern, because some people who know that they are innocent, but who fear being fined £2,000, have taken the £60 fine and admitted the offence.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

That is my precise concern. In the case of conditional cautions, however, the approach could apply to much more serious offences. The danger is that people will feel that they do not want to experience a court process, which will mean that the caution is not truly voluntary.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

The hon. Gentleman has said that he supports conditional cautions, but now he is trying to advance other arguments. Why does that point apply to fines, but not to the other rehabilitative or reparative conditions? He is arguing against the whole principle. Again, I remind him that the system in Scotland does not require the admittance of guilt, but it enables the procurator fiscal to impose a series of penalties on individuals. As I understand it, an increase in the penalties is being considered in Scotland, because the scheme has proved to be so popular in the past 20 years.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

It is one thing for an offender voluntarily to accept rehabilitation or reparation, but it is quite another thing to accept a punishment. The difference of degree makes this development alarming.

Our second concern is that punitive cautions will lead to two-tier justice. Those without the means to pay the fine attached to a caution will have little choice but to face prosecution, while somebody who can afford to pay the fine will avoid conviction by paying.

Our third concern is that conditional cautions might amount to soft justice. The Government have claimed that their purpose is to extend the means of delivering justice to low-level offenders. The Prime Minister has said that summary justice will be tough and hard, but the maximum fine will be £500—in practice, the figure may be less than that, because it will be no more than one quarter of the maximum fine which could have been imposed, if the offence had gone to a magistrates court. Lower penalties are built into the architecture of punitive cautions. Ordinary police cautions are already employed for serious offences. In 2004, 400 cautions were handed out for wounding or other acts of endangering life, and 451 were handed out for robbery. However, there is apparently no statutory limit to the offences to which punitive cautions could be applied. We do not know for what offences they might be available. That will be decided on the basis of guidance, which we have yet to see, from the Director of Public Prosecutions, approved by the Attorney-General.

The current national guidelines for non-punitive conditional cautions allow for cautions to be used for serious offences that are triable even on indictment only, albeit in rare cases. That could include serious assaults. The danger is that once a punitive element is attached to conditional cautions, they will be used increasingly to deal with more serious offences that should be dealt with in the courts. That would follow the pattern of moves to summary justice that we are now seeing. The Government envisage that 30,000 cases will be dealt with by conditional cautions and a further 250,000 by the extension of fixed penalties. That extension could mean that serious crimes such as assaulting a police officer and mugging are punished by instant fines of up to £100. Conservative Members regard that as completely inappropriate.

In Committee, the then Minister for Policing, Security and Community Safety, Hazel Blears, conceded that punitive cautions are a radical departure from the current law. So they are, but her justification for the extension of summary justice was wholly inadequate. She said:

"The legal system is complicated, time consuming and sometimes bureaucratic".—[ Official Report, Standing Committee D, 23 March 2006; c. 165.]

So it is, but that is a reason to reform the magistrates courts, not to shut courts out of the criminal justice process altogether. What is proposed is a fundamental transfer of sentencing responsibility from magistrates, and possibly even judges, where it properly belongs, to prosecutors. The development of summary justice has barely been debated in this House and should not be accelerated by a single, highly controversial clause in a Bill that has received little scrutiny because of the way in which the Bill has been timetabled.

Conservative Members do not wish to support summary justice if it becomes soft justice, but the whole House should be concerned about supporting fast justice if it comes at the price of injustice. That is why we believe that the other place was right to strike conditional cautions from the Bill.

Photo of Lynne Featherstone Lynne Featherstone Shadow Secretary of State for International Development, Shadow Spokesperson (Communities and Local Government)

Liberal Democrat Members are not concerned about conditional cautions—we support and approve of anything that moves towards rehabilitation or reparation—but about the introduction of punitive cautions, particularly in the form of financial penalties. The Government's proposals mean that punishments will be issued on the spot, circumventing proper judicial procedure. That will lead to a situation whereby we cannot be absolutely certain that there will be no bias or unfairness.

There are several dangers in the Government's proposed shift. First, it may create one law for the rich and another for the poor. Secondly, there may be increased disproportionality and racism. Thirdly, crimes for which cautions can be issued are not necessarily all that minor and may not remain so.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I am struck by the hon. Lady's accusation that prosecutors may be involved in racism. They will make these decisions in relation to conditional cautions. Why on earth is she trying to convince the House that prosecutors will deliberately act in the ways that she seems to be suggesting?

Photo of Lynne Featherstone Lynne Featherstone Shadow Secretary of State for International Development, Shadow Spokesperson (Communities and Local Government)

If the Solicitor-General gives me time, I will elaborate. I was referring not to prosecutors but to the people who may be arrested.

Lastly, the purpose of conditional cautions may be transmuted from the original purpose—that is, to offer the criminal the chance of not having to go to court on condition of changing their behaviour. For a Government who are so keen on changing antisocial behaviour, that, with reparation, should remain the purpose. If a fine is used as a punishment, the original purpose will not be served and behaviour will not be changed.

First, let me put on the record the sorts of crimes for which a conditional caution might, according to the Magistrates Association, be given; although I heard the Solicitor-General say that it was not the intention for such crimes to be included, there is no exclusion in the Bill. The offences for which a caution can currently be administered include actual bodily harm, affray, criminal damage, possession of class A or class B drugs, having a bladed article in public, carrying an offensive weapon, burglary both non-commercial and non-residential and theft. I do not think that any Member of any party thinks that those are minor or low-level offences.

With the advent of fines, Labour will herald in a two-tier system of justice: one law for the rich and another for the poor. Labour's plans mean that the police will levy fines and issue cautions more often, with the only alternative being for the person concerned to go to court, which, as has been rightly said, is frequently a long-winded and expensive process that can result in their getting a criminal record. The pressure will be on to cop a plea and pay up, but poorer people will suffer more as the fines will be harder for them to pay, and those without the means to pay a fine attached to a caution will have no choice but to face prosecution, whereas someone who can afford to pay the fine will avoid that whole nasty business.

Labour's pay-and-go policies—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I wonder whether the hon. Lady might consider using the phrase "the Government's" policies, as that is what they are?

Photo of Lynne Featherstone Lynne Featherstone Shadow Secretary of State for International Development, Shadow Spokesperson (Communities and Local Government)

I apologise, Madam Deputy Speaker. The Government's pay-and-go policies let those who can afford it off the criminal hook, as they can pay not to have a criminal record, which cannot be right.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

But am I not right in thinking that if someone appears before a magistrates court, that court will not take into account their earnings, income or savings, and that if they are found guilty in a magistrates court, they will still have a fine levied on them? So the magistrates court does not take into consideration their ability to pay either. Maybe I am wrong.

Photo of Lynne Featherstone Lynne Featherstone Shadow Secretary of State for International Development, Shadow Spokesperson (Communities and Local Government)

No, but the point about going to a magistrates court is that there is a whole other purpose involved—that the public can have confidence that the right person is convicted and it is publicly demonstrated that justice is being done. At present, we just have the arresting officer's say-so, in effect.

Following on from issues to do with discrimination between the rich and the poor, we also ought to consider issues to do with potential racial discrimination. Pay-and-go policies risk disproportionality, in that black and ethnic minority populations often come from areas of deprivation and are likely to fall into the category of those unable to pay. That is an issue. I see that the Solicitor-General looks puzzled, so I will pursue it now. The racism issue is simple. The evidence shows that where the police have discretionary powers in respect of how to enforce rules, they are often enforced in a disproportionate manner. We know that more of the black and ethnic minority population are arrested.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I am trying to follow the hon. Lady's argument. At one point she seems to be in favour of reparative conditional cautions, but at another point she is against any sorts of caution at all because she thinks that everything needs to go before the court, and then she seems to be talking about the police arresting people and to be trying to do something about that. The situations that we are talking about are post-arrest in the police station, where the police have already gone through that process, and the issue now is whether we have a conditional caution that has various elements or conditions attached to it. I fail to see the logic of the hon. Lady's argument and where she is going with it. If she can enlighten me, I will be very grateful.

Photo of Lynne Featherstone Lynne Featherstone Shadow Secretary of State for International Development, Shadow Spokesperson (Communities and Local Government)

I am simply saying that a fine is punitive, and if someone can afford to pay that is well and good, but if someone comes from a deprived background they are less likely to be able to pay. The rush to summary justice risks losing the purpose of changing behaviour.

The clause as it currently stands sets out the right to give conditional cautions with the sole objective of punishing the offender. Punishment such as a fine by itself allows the offender to walk away from the reality of what he has done. Without an element of rehabilitation and reparation, it will do nothing to address the underlying reasons why the criminal or disorderly act was committed in the first place. My concern is that the imposition of fines will become easier. As the Solicitor-General said himself, even when a magistrates court imposes fines, chasing the money is a real issue, so I cannot see how this approach will prove an advantage in such circumstances. It will entirely miss out the criminal justice system, which is at least able to give the public the confidence of knowing that the person in question is being charged and brought to court, and punished by a sentencing judge or magistrate.

We Liberal Democrats think that the current principle of conditional cautions—that only conditions that facilitate rehabilitation of the offender, or which ensure that they make reparation for the offence, may be applied—is a very good thing and the right approach to those who have admitted guilt. It is very important that we find ways of diverting people from offending at the earliest possible stage, which is why the conditional caution is such a constructive tool. The extension of conditional cautions to wider punitive conditions will do nothing to address the underlying problems, the rising prison population or the 60 per cent. reoffending rate. I recognise that calls for due process and the involvement of lawyers, juries and judges do not make for the most exciting of rallying cries, but if we take the inappropriate step of cutting them out of the legal system, the quality of justice and the cause of communal harmony may well suffer.

Someone interviewed on TV might say, "The big problem with our criminal justice system is that it takes so long and it costs so much to deal with so many crimes. We need to speed up punishment for minor crimes, so that people can be punished quickly and we can move on and spend more time on serious crimes." Essentially, that is the Government's justification for the proposed new police powers. They will undoubtedly speed things up, but at the serious cost of omitting due legal process.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 9:15 pm, 24th October 2006

If it is put to the vote, I am going to support the Lords amendment. I regret that I disagree with my hon. Friend Nick Herbert when he says that there is a distinction of principle between fixed penalties and conditional cautions. They are the same. I agree that the sentence—if that is the word that my hon. Friend used—is variable in conditional cautions, but the general proposition is identical in each case. The prosecution, in the case of fixed penalties, is creating a situation whereby there is an adjudication of guilt, and the sentence is less important than the adjudication of guilt. So I am afraid that, as to the matter of principle, I cannot support my hon. Friend.

I turn, however, to an issue where I am on the same side as my hon. Friend. Listening to the Solicitor-General, it became plain to me that although he might not wish conditional cautions to be extended to a range of offences that you and I would class as serious, Madam Deputy Speaker, that remains a possibility. I accept that he spoke of an unwillingness on his part to see them extended to burglary, but it is clearly possible that, over time, they could be. Lynne Featherstone referred to class A drugs and the carrying of a knife, as, indeed, did the Solicitor-General. My own feeling is that conditional cautions would be wholly inappropriate to those classes of offence.

We have identified the possibility that conditional cautions will be extended much further than we are presently contemplating. We all know that the parliamentary controls on extending the range of offences to which such a penalty can apply are very limited. I assume—I have not checked—that it is done by statutory instrument. We all know that the order-making powers confer on the Executive very large discretion, and that we have very limited ability to constrain them. So for that reason, if the Lords amendment is put to the vote, I shall support it. I do not wish to see conditional cautions extended to, for example, burglary, carrying a knife or actual bodily harm.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

Nick Herbert described the proposals as alarming. Hyperbole has been employed on many occasions, but that description constitutes substantial hyperbole. We plan an extension of conditional cautions, which will enable us to achieve proportionality and an appropriate response to minor criminal behaviour. Such behaviour is often tackled through fines in magistrates courts throughout the land.

The hon. Gentleman presented three arguments. The first was one of principle, the second covered magistrates courts and the objections of the Magistrates Association and the third suggested that the proposals constituted soft law. However, I note that Conservative Members oppose imposing fines, while Labour Members want to ensure that criminals are properly tackled and that the condition of a fine can apply to those who accept a conditional caution.

In considering the issue of principle, the key element is that the defendant must always consent to the conditional caution. That safeguard will always exist. The issue of principle that the hon. Gentleman identified was the court's need to impose a discretionary penalty. In Scotland, the procurator fiscal has imposed penalties for several years, including a series of fixed penalties. They can be £25, £50, £75 or £100. Following public opinion polls that show considerable support for increasing the amounts, an increase to a much higher figure is being considered.

There have been elements of discretion in the criminal justice system for as long as it has existed. For example, the police have discretion over whether to arrest someone for a minor offence. There is also discretion over whether to prosecute, within specific limitations. Again, it is important that no defendant has such a punishment imposed on him. If he rejects the conditional caution, he simply goes to court. He gets free legal advice about whether to accept the conditional caution.

The hon. Gentleman suggested that some sort of pressure or coercion could be exerted. Again, as always with a caution, the question arises of whether someone wants to go to court and risk its verdict or admit guilt and accept the caution. That applies now. We want to ensure that there are appropriate ways in which the penalties are considered. When the Joint Committee on Human Rights considered the conditional cautions in the 2003 Act, it was satisfied that the safeguards attached to the caution were sufficient to ensure that consent would be truly voluntary and that undue coercion would not be applied.

The hon. Gentleman's second argument applied to the magistrates court. I am a great supporter of the magistrates court, which is a fine way of doing justice. However, much work is going through the magistrates court and some of it is fairly low level, involving, for example, petty offences. That, especially given current high arrest rates, means that work has crowded into magistrates courts, leading to substantial delays. A few weeks ago I was in Hertfordshire, where it can take eight months to put on a trial. That time has been reduced through the work of the magistrates court. In February, it was listing trials for 2007.

Magistrates courts are good at contested cases and serious cases. We should give them the credit that they deserve for the serious cases, rather than making them deal with many low-level petty offences, most of which they tackle through a standard fine. A conditional caution could deal successfully with many such offences. When conditional cautions have been tried in the pilot areas, victims' response to a fairly quick result and getting the compensation paid has been positive. Many of the Magistrates Association's objections are therefore without genuine foundation, because there is no attempt to devalue magistrates courts. On the contrary, the aim is to increase the value of their work.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

In July, the Home Secretary caught the mood of the House when he talked about doubling the prison sentence for carrying a knife. Will the Solicitor-General assure us that conditional cautions will not be used for people carrying knives, just as they will not be used in cases of burglary?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

As I understand it, the Home Secretary said that the aim was to increase the maximum sentence. The courts must determine the appropriate sentence for each case. We take the view that when knives have been involved in an offence, it would not be appropriate to issue a conditional caution. We need to recognise, however, that some cases in which young people have been carrying knives are not dealt with by heavy penalties in the court system. A degree of proportion is needed when dealing with these matters.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

If the Solicitor-General has no objection in principle to transferring the responsibility for sentencing from magistrates to the prosecutors, where does he think that that should end? Why has he drawn the line where he has? Why not extend the principle by taking more cases out of the magistrates courts and dealing with them by issuing conditional cautions? Where does he propose to draw the line?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

We have looked at the ways in which these cases could be determined, and at where the line should be drawn. Having looked at the approach taken in the pilot areas, we concluded that some of the cases that we thought might be the subject of conditional cautions were probably not appropriate for them at the moment. We need to look at all the facts and see how things develop. Clearly, contested cases could never be dealt with using conditional cautions; that would be nonsense. Similarly, the more serious cases in which someone was being considered for a custodial sentence would obviously be singularly inappropriate, because we would effectively be taking that option out of the process. So there are natural barriers to some cases being dealt with by issuing a conditional caution.

There is also a range of cases that would be appropriate, however, and when we can deal with such cases appropriately by introducing elements of reparation and rehabilitation as well as a penalty, it will be the victims who will benefit. It will be the victims who will get their compensation earlier, who will see justice done, and who will see the criminal justice system operating for them. It is the victims who ought to be at the heart of the criminal justice system, and that is what the Government are in the process of doing. The Conservatives do not seem to be worried about that, but we want to see those who are dealt with by conditional cautions being properly fined. The Conservatives are opposed to fining. They seem to be proposing to allow conditional cautions to be restricted to a group of people who could have only rehabilitative or reparative conditions attached to them. We want to see proper justice being delivered for victims much more quickly. We are doing that, but the Conservatives have failed to do it. I want to ensure that the Lords amendment that would damage the process of helping victims more is reversed.

Question put, That this House disagrees with the Lords in the said amendment:—

The House proceeded to a Division.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

On a point of order, Mr. Speaker. I hope that it is in order.

There are occasions when I feel ashamed to be a Member of this House. The next group of amendments relates to Her Majesty's chief inspector of prisons. Because of the guillotine process, when the Bill was last before the House of Commons there was no opportunity for us to debate that issue on Report or Third Reading. The Bill then went to the other place, where the subject was debated for almost a day. The Government were defeated and the other place said that the inspector should remain. The Government purported to make a concession, which they withdrew on Third Reading by giving the Secretary of State powers of intervention and direction.

Tonight we shall reach 10 pm without having had any opportunity to debate the inspectorate of prisons at all. I submit that that is something of which this House should feel thoroughly ashamed, in view of the work done by people like Judge Tumim and Anne Owers the present inspector of prisons. It is a disgrace. I can do no more than ask for you, Mr. Speaker, or someone else to start giving the House and Back Benchers some protection. Otherwise, I do not think that people outside can begin to understand how the House conducts its business.

P

Political jiggery-pokery is an apt description of the Government's attempt to get rid of the post of Chief Inspector of Prisons.

Tony Baldry, Conservative MP, says there are times when he feels ashamed to be a Member of the House of Commons. Ordinary people are losing trust in politicians and the democratic process; it's not difficult to see why.

Submitted by Pauline Campbell

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Further to that point of order, Mr. Speaker. May I reinforce what my hon. Friend has just said? [Interruption.] I am doing my best to speak up, but unfortunately I have lost my voice. I was the Minister with responsibility for prisons for two years, and I have a very high regard for the work of the prisons inspectorate—and to think that it could have been abolished! It is a scandal that the House does not have an opportunity to express its confidence in the inspectorate of prisons or to affirm the significance that we attach to it.

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For the House of Commons not to have an opportunity to express its confidence in the inspectorate of prisons, or to affirm the significance attached to it, is a scandal - as Douglas Hogg, Conservative MP, says - it is also scandalous that Home Secretary John Reid should have proposed abolishing the post of Chief Inspector of Prisons in...

Submitted by Pauline Campbell Continue reading

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Let me say to the right hon. and learned Gentleman, and to the hon. Gentleman who first raised the point of order, that we are effectively discussing the programme motion, and it is for good reason that the Speaker is kept out of these matters. Other Parliaments do not keep the Speaker out, but I am glad that this Parliament does. All I can say is that I meet the Chief Whip and the Opposition Chief Whip, so I can express the concerns that have been expressed on the Floor of the House tonight. That is the best I can do without interfering further.

The House having divided: Ayes 300, Noes 217.

Division number 323

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Lords amendment disagreed to.

Before Clause 26

Lords amendment: No. 10.

Photo of Tony McNulty Tony McNulty Minister of State, Home Office

I beg to move amendment (c) to the Lords amendment.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

With this it will be convenient to discuss Lords amendments Nos. 11 to 14 and the Government amendments thereto, and Lords amendments Nos. 15 to 27, 42, 43, 46, 53, 78 to 80, 86, 93, 101, 110 and 112.

Photo of Tony McNulty Tony McNulty Minister of State, Home Office

I shall concentrate on the Opposition amendments, but colour in the background. I do not, incidentally, accept the points raised in the point of order, especially if we reflect back on the time and opportunity that Tony Baldry and others had to make their points. The point related to a vote on the programme motion and in my recollection there was no such vote, so it was not a well made point at all— [Interruption.] It is not a matter for me, but for the usual channels who agreed the programme motion. [Interruption.] Conservative Members would do well to sit and listen rather than—

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. It is important to speak to the amendment. I have already spoken to the point of order, which is fine.

Photo of Tony McNulty Tony McNulty Minister of State, Home Office

I fully accept that, of course, Mr. Speaker.

I now turn to the Opposition amendments. We have largely dispatched much of part 4, which dealt with the compulsory amalgamation of the five inspectorates, not least because of some of the concerns expressed in the House, in the other place and in campaigns outside the House. I am happy to report that the five inspectorates have come together and, as a result of discussions, reaffirmed a series of matters that meet the policy points that we sought to implement through a compulsory amalgamation. However, I shall come to that after I have dealt with the amendments.

The first of the amendments would make provision, in a voluntary rather than compulsory context, for the chief inspectors to consult Ministers and other inspectorates only if they wish to do so. I recognise the spirit in which the amendments were tabled—the wish to dispense with additional bureaucracy created by the original provision of the merging of the five inspectorates—but I do not consider it proper for a chief inspector to have a discretionary rather than mandatory requirement to consult Ministers or inspectorates. That would risk the chief inspectors being detached from the priorities that Ministers properly set. I emphasise that the duty is only to consult: the Ministers may not in any way direct or control the inspection programme. That is right and proper. Nor would it give them any mandatory duty to deal with or consult other inspectorates.

9.45 pm

I am confident that the Government amendments will remove the burden that was complained of in terms of the broader requirement to consult other inspectorates, and the inspectorates have said that that is something that they would do as a matter of course anyway. The additional benefit of the Government amendment is that it ensures that both parties agree when consultation is not necessary, thus obviating the need for that layer of bureaucracy. One cannot expect a single inspectorate to be aware of the interests of all other inspection bodies. The consensual element guards against the danger of one inspectorate unilaterally deciding that another inspection body does not have an interest in a particular matter. Much of the force behind all that the Government are doing with inspectorates is the fact that we live in an ever more complex world. It is important that inspectorates talk to each about inspection processes.

The second Opposition amendment would remove the power of Ministers, in the case of HMIP, to specify the form that the inspection programmes and frameworks are to take. I know that my reassurance will not work, but I will try anyway. I assure the House that the power is an administrative provision that relates only to the form of the documents in question. That is necessary for consistency and ease of planning. It could not be used to specify the content of the programmes or frameworks. I hope—but I doubt it—that that assurance and the amendments that we have tabled meet the concerns raised.

The inspectorates have met and said to the Government, in terms, that they reaffirm their commitment to the streamlined and modernised inspection programme as set out in the policy statement of November 2005, and to the Government's 10 principles of public service inspection. They have agreed to develop a joint business planning process to provide a framework for joint inspection work to be developed from priorities indicated by the three Ministers concerned with the five inspectorates. They will produce a first joint plan for 2007-08.

The inspectorates have also agreed to review the use of resources and back office support to identify any efficiency gains which can be redeployed to joint working. They have agreed to report quarterly on the progress of those arrangements to Ministers. Those proposals have convinced the Government that we can achieve our objectives in relation to the criminal justice system more quickly by focusing our efforts on strengthening and improving joint working across the inspectorates, rather than on proposals for organisational merger at this time. That is underpinned by the clear commitments of each of the chief inspectors to deliver real improvements in joint working.

The two Opposition amendments were tabled in the context of the original part 4 of the Bill which laid out an enforced merger, rather than a voluntary process—a dispute we have just had in relation to police forces. Because of pressure from the inspectorates, we have reflected and agree that a voluntary arrangement is more likely to achieve the policy outcomes that we both desire. We have removed the compulsory dimension.

We have assurances from the five inspectorates about the way in which they will achieve those policy outcomes voluntarily, and therefore the amendments are not necessary. We have withdrawn the bulk of part 4 of the Bill. In its place we have applied to each of the existing inspectorates the provisions in part 4 for delegation of functions, inspection programmes and frameworks, "gatekeeping" in respect of inspections by other inspectorates, co-operation, joint action and assistance for other public authorities.

The bulk of our amendments provide the statutory underpinning for the more efficient and effective joint working to which the inspectorates are committed. They do not change the existing remits of the respective inspectors, but the additional responsibilities originally provided for in the Bill no longer obtain. The amendments simply provide ways for each inspector to exercise his current functions more co-operatively and flexibly. There can be no doubt that that is a desirable aim, and it is shared by the inspectorates and the Government.

The other Government amendments in this group simply fine tune those processes. I accept that serious concerns have been expressed about the prisons inspectorate, and to a lesser extent the HMIC, but it has been accepted that the three criminal justice inspectorates could come together and work better. The Government are not aiming to pursue the enforced route originally laid out in the Bill; instead, we have listened to the inspectorates and both Houses and come up with a compromise. That compromise, which has been commended by the inspectorates involved, achieves our ultimate policy aim to secure greater working efficiencies in the five inspectorates, but in a way that is both voluntary and faster.

I urge the House to accept the Government amendments.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

The Minister is, as ever, disarming. He said that he had listened to both Houses of Parliament, but this House has not had an opportunity to say anything. My hon. Friend Nick Herbert tells me that the inspectorate question was barely discussed in Committee because of the guillotine and you, Mr. Speaker, will recall that it was not reached on Report or Third Reading in this House. As a result, we had to rely on the unelected House to do our work of scrutinising the Government's policy on the inspectorate.

I am happy to say that, just the other day—on 10 October—the other place defeated by 109 votes the Government's proposal to create a mega-inspectorate. None of the speakers in that debate supported the Government, and members of the Government—whom I will not identify—told me in private conversation that they considered the proposals to be dreadful. They were ashamed of them and could not understand why they had been pushed through. Luckily, Lord Ramsbotham was able to have his way and persuade the other place that an independent inspectorate was essential and that the Government's proposals were wrong.

That was fine, but something else happened on 18 October. Just five minutes before the end of the time in which amendments could be tabled for the Third Reading debate in the other place, the Government tabled 20 pages of them. That is not a sensible way to construct legislation, and it is certainly not likely to convince this House of the Government's ability to produce well-thought-out proposals.

The Minister has just spoken for eight minutes, which leaves the rest of us about 10 minutes before the guillotine comes down. It is an example of the sort of constitutional outrage that the Opposition have to face. The Government appeared to concede the case put forward by Lord Ramsbotham and Lady Anelay in respect of separate inspectorates but, in a way that I consider to be cynical and intellectually and politically dishonest, at the last moment they inserted the 20 pages of amendments to which I have referred. Those amendments completely destroyed the value of the concession made by Lady Scotland on behalf of the Government.

Of course, the Government now say that there will be an independent prisons inspectorate, but those 20 pages of amendments make it clear that the chief inspector of prisons will be under ministerial direction. So they promise to give us something with one hand, but they take it away with the other and then give us only 10 minutes to complain about it.

It is utterly absurd—indeed, it is worse than absurd, it is dangerous—to make legislation on such an important matter in this way. I urge the Government not to treat the issue lightly. Our amendments restore, in some small measure, the independence of action and discretion of the chief inspector. Without our amendments, the Government, who have made a concession and cynically withdrawn it, will have destroyed a day's work in the other place and will have undermined all that the noble Lords did. That is appalling.

I have nothing further to say, other than to express the hope that not only my right hon. and hon. Friends but Labour Members will consider carefully what they are doing. Are Labour Members prepared to allow themselves to be sucked into the Government Lobby on a false prospectus, which is designed to demonstrate that the Government are giving back to the chief inspector of prisons complete independence and discretion of action, when in fact by turning down our amendments they will be removing it?

Photo of Tony Baldry Tony Baldry Conservative, Banbury

The Minister seemed to give the House the impression that the so-called compromise, or stitch-up, had the approval of the inspectors. Does my hon. and learned Friend know the view of Lord Ramsbotham on what the Government are now proposing?

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

Unfortunately, I do not because I have not had an opportunity to speak to him. However, I know what he said in the other place on 10 October; we can read in the Official Report. Lord Ramsbotham was pleading with the Minister—he used the words "I beg". This is a retired four-star general, not a man who is much in the business of begging. This is the former chief inspector of prisons, a man of great integrity and experience, yet he begged Baroness Scotland to think again. She did, but somebody got hold of her and made her think yet further, to the detriment of the Bill.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I was a prisons Minister for two years and I placed enormous weight on the independence of the inspector of prisons. None of us has access to independent advice about the conditions in prisons, other than what comes from the prisons inspectorate. If we lose that independence, we shall all be uninformed about what is happening in prisons, which is often scandalous.

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

I entirely agree with my right hon. and learned Friend. I trust that those who read the report of what little we have been able to do tonight will note his intervention and that of my hon. Friend the Member for Banbury. Those points will inform their lordships House when they reconsider this matter—if they do so.

The Government are attempting by sleight of hand—by procedural shenanigans—to micro-manage the inspectorate. That is constitutionally wrong; it is immoral and it ought to be rejected. I urge my right hon. and hon. Friends and other people of good will to vote with us to support the amendment.

Photo of Lynne Featherstone Lynne Featherstone Shadow Secretary of State for International Development, Shadow Spokesperson (Communities and Local Government)

The proposal to merge the prisons inspectorate and create a combined inspectorate rightly caused great furore. My noble Friends in the other place made a cogent case against the proposal, which we have not been allowed to do in this place because the Government prevented debate by not allowing adequate time on Report. That was a shameful avoidance of proper scrutiny in the House. The Government are clearly without scruples about the democratic process.

Were it not for the Lords amendment, we would be faced with an unscrutinised and damaging programme for a combined, slapped-together inspectorate, steamrollered through. It is typical of the Government to try to use their brute strength of numbers rather than force of argument to get their way. Their seriously misguided proposal was, thankfully, averted, except that, as Mr. Garnier said, despite the Government's apparent volte face we are now presented with a restoration of power to the Secretary of State.

It cannot be right for the Secretary of State to be able, by order, to specify the form that inspection programmes or inspection frameworks are to take. That goes against the necessary independent nature of the inspection regime and its purpose. Neither should the chief inspector have to consult the Secretary of State before preparing such a regime. Each of the amendments that changes the word "shall" to "may" puts back independence—

It being Ten o'clock, Mr. speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

The House proceeded to a Division; but no Member being willing to act as Teller for the Noes, Mr. Speaker declared that the Ayes had it.

Government amendment (c) agreed to.

It being after Ten o'clock, Mr. Speaker put the remaining Questions required to be put at that hour.

Government amendments (d) to (f) agreed to.

Motion made, and Question put, That this House agrees with the Lords in the said amendment, as amended.— [Mr. McNulty.]

The House divided: Ayes 302, Noes 216.

Division number 324

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Lords amendment, as amended, agreed to.

Lords amendments Nos. 11 to 14, and the Government amendments thereto, agreed to.

Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments Nos. 1, 5, 36 and 81 to 85: Michael Fabricant, Lynne Featherstone, Andrew Gwynne, Mr. Tony McNulty and Mr. Alan Campbell; Mr. Tony McNulty to be the Chairman of the Committee; Three to be quorum of the Committee.— [Mr. Alan Campbell.]

To withdraw immediately.

Reasons for disagreeing to certain Lords amendments reported, and agreed to; to be communicated to the Lords.