Lords amendment: No. 22.

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

With this it will be convenient to take Lords amendment No. 23 and the Government motion to disagree thereto, and Lords amendment No. 38 and the Government motion to disagree thereto.

The Lords amendments apply two novel parliamentary processes to two different aspects of the Bill. First, Lords amendment No. 22 proposes that the so-called super-affirmative procedure be applied to the power in clause 12 to repeal the restriction on work involving the courts in clause 4. Many hon. Members expressed concerns at an earlier stage about the pace of change in the Bill. We listened carefully to those concerns and have done two things in response. First, we gave a clear commitment that core offender management work—the management and supervision of individual cases—will be commissioned only from the public sector for three years, or until 2010. Secondly, we amended the Bill to ensure that the work that probation services do in relation to courts can be commissioned only from the public sector until both Houses of Parliament agree that the restriction may be lifted. The Government agree that the power to lift the restriction should be subject to the affirmative procedure.

As hon. Members will know, the Lords have taken a different view, and have subsequently amended the Bill to apply the super-affirmative procedure to the matter. Their amendment seeks to impose a delay on the procedure by specifying that a draft order must be laid for at least 60 days before both Houses may debate it. It seeks to impose requirements on both Houses by obliging them to approve a report that sets out what will be in the draft order. Both Houses would then be required to approve the proposals in the same Session, as set out in the order. I accept that the Lords have taken a view on the matter, but such a novel procedure is completely disproportionate to the change proposed by the Bill.

The affirmative procedure is well known by hon. Members. It is tried and tested, and I believe that it provides the appropriate level of scrutiny for the power that we have introduced. The reasons that the amendment requires the Government to give would have to be given in any case, even with the normal affirmative procedure. We have to make our case, and under the affirmative procedure we have to back it up with evidence to secure the support of Parliament. The affirmative procedure offers the Commons a clear, operational opportunity to give a view on those issues. The super-affirmative procedure is disproportionate, so I urge the House to reject the amendment.

Secondly, Lords amendments Nos. 23 and 38, too, seek to apply what I can only term "novel procedures" to the implementation of part 1 as a whole. Under those amendments, the Government would be required to lay before both Houses of Parliament a report containing a review of the proposals set out by my noble Friend Lord Carter in his report of December 2003, as well as the responses to—and a review of—the Government consultation document of October 2005, and a review of the proposals generally.

Having examined the amendments in some detail, I am not entirely sure what they are intended to achieve. I am interpreting here, but I believe that their supporters in another place believe that the Government might have time to re-examine documents that are two years old, or nearly four years old, and that having done so and having completed a long and, in part, tortuous parliamentary process, they might not agree to implement the proposals after all. I do not consider that realistic. If we were to revisit those dated documents, we would merely see how far the policy had progressed and how many amendments had been made, thanks to consideration in another place and by my hon. Friends and Mr. Garnier.

The policy before the House today is not the same as the policy set out in my noble Friend Lord Carter's report in December 2003. It is not the same as the policy in the response to the October 2005 consultation document, and it is not the same as the policy contained in proposals made as recently as earlier this year. I believe that, both in legislative terms and in our planning for implementation, we have listened to Parliament, listened to stakeholders, and made some significant changes. I therefore hope that the House will reject Lords amendments Nos. 23 and 38.

The machinery of government changed on 9 May when the Ministry of Justice was formed. There may now be an opportunity for another place to conclude that its formation has made significant changes to the Government's commitment to the Bill. I have set out clearly today how the Government envisage the commissioning process. I believe that the process described in the Bill is one that we can support, given what was said earlier by my hon. Friends, who have now left the Chamber and gone for a well-earned cup of tea. We need to concentrate on the way forward, and to end delay and uncertainty. For those reasons and those reasons alone, I urge the House to reject the amendments.

I support the Lords amendments. Although I listened carefully to the Minister's arguments on behalf of the Government, I think that they require rather more analysis than he was able to give.

When the Minister came to my constituency to address the Leicestershire and Rutland probation service at Leicester race course, than which there is no finer place, he did not exactly run away with himself. He was not exactly carried away with enthusiasm for the project over which he now has control, namely the National Offender Management Service. In the course of his remarks, of which someone kindly sent me a note—

The hon. and learned Gentleman has spies.

I have a constituent.

In the course of his remarks to the Leicestershire and Rutland probation service, the Minister admitted that the probation service in my county was one of the best. It is probably in the top four, and it may well be the best of all in terms of hitting the targets that the Government have set it. It is therefore highly likely to be one of the first to be required to divert much of its attention, time and money to changing from a board to a trust.

rose—

Does the Minister wish to praise the probation service even further?

Not only to praise it, but to say that the chairman and chief executive look forward very much to the opportunity to apply for trust status.

Is it not interesting that they say such things to people they talk to? I dare say that if I were employed by the Secretary of State for Justice, I should find it convenient to look forward to all his plans, not least because I might hope they would include me.

But let me return to Leicester race course, where there is a very fine straight mile. The Minister rightly praised the Leicestershire and Rutland probation service and also said that the creation of NOMS—that bureaucratic blancmange placed between the Secretary of State and the Prison Service and the probation service—had not quite turned out as he wished. I paraphrase what was said, of course, and I do not have to be careful about what I say as I am not a NOMS employee.

It is fair to say that most dispassionate observers of the creation of NOMS will have wondered why so much money was spent and what it was designed to achieve, and also why it was necessary to draw people from the Prison Service, the probation service and other limbs of the Home Office and other Departments and to push them all into the NOMS headquarters. For instance, why were all the regional offender managers put into post? I believe that there are now about 2,000 new civil servants working for NOMS. What benefits have accrued both to the public in terms of reducing reoffending and enhancing public protection and to the Prison Service and probation service? I acknowledge that these are still early days as we are only in the third financial year of NOMS, but it is difficult to discern any benefit that the public or public services have gained from the change. Its creation did not require legislation, but it is sometimes referred to in legislation, and the Minister found it difficult to praise it wholeheartedly when he visited my constituency.

I have provided some background, and I now wish to discuss how we got to where we are. This is not the first Offender Management Bill. Another one was introduced before the 2005 general election, which the election prevented from being enacted. The pre-2005 Bill came out of a report referred to in amendment No. 23, which was published on 11 December 2003: "Managing Offenders, Reducing Crime: A New Approach". That led not only to the creation of the pre-2005 Bill, but to the collation of responses to the consultation document "Restructuring Probation to Reduce Re-Offending", which anteceded the 2007 Bill.

We and the House of Lords suggest that those two reports and the review of the responses to the second report should at least be publicly understood, and discussed and digested by the Government, before the Bill is enacted. We do not seek to kill off the Bill; if we had wanted to do that we would have attempted to do so on Second Reading, when we gave it conditional support—although our hopes were disappointed by the time we reached Third Reading. We want to produce the best Bill in order to do what the Attorney-General asked us to do: to reduce reoffending and increase public protection.

On 6 January 2004, the Government published "Reducing Crime, Changing Lives" in response to Lord Carter's report "Managing Offenders, Reducing Crime: A New Approach". It proposed to merge the prison and probation services and to open up work with offenders to both internal and external markets. It also set up NOMS, with its national and regional structures.

Interestingly enough, on 20 July 2004 the Minister of State, Northern Ireland Office, Paul Goggins, who is one of the many Labour Members of Parliament who have become Ministers in the past 10 years —[ Interruption. ] He swapped jobs with the Minister—what a treat for everybody. Anyway, on 20 July the hon. Gentleman, when he was Under-Secretary with responsibility for correctional services, announced that the Government had decided that their original proposal for the immediate establishment of NOMS regional boards and the separation of probation staff into offender management and interventions needed more time. He said he had decided that the option of moving immediately to create new regional boards was unlikely to deliver better management of offenders and better services—his main two objectives. He also said that he wanted to concentrate on delivering end-to-end offender management and that he would introduce greater competition, because he had concluded that those objectives could best be achieved through 42 probation boards. How times have changed.

In 2005, the Management of Offenders and Sentencing Bill was introduced in the other place, which would have abolished the probation service and introduced a fragmented market. By this time, the notion of merging prisons and probation appears to have been forgotten. However, the Bill did not proceed, partly because of an unexpected and strong opposition to its proposals in the other place and because of the intervention of the 2005 general election.

Ever wishing to consult, the Government issued yet a further consultation paper, as mentioned in amendment No. 23. It was called "Restructuring Probation to Reduce Re-Offending" and it was published in October 2005. That led to much discussion, and some response from those interested in the subject. By the end of the consultation period, on 20 December 2005, we had learned that of the 748 people and organisations that had responded, only 10 were in favour of the Government's proposals. Despite that overwhelming rejection of the restructuring ideas, the Government have pressed ahead with the Bill, which had its Second Reading just before Christmas 2006.

The Government's view at that stage—it changes from time to time as they are a flexible collection of people—was that the changes were required because too many offences were being committed, reoffending rates were far too high, the performance of the probation service was poor, and matters needed a good shake up—never mind the fact that it would be the third shake up since 2000. If one keeps shaking things, they tend to break, but here we are, watching the Government shake it up a bit more.

Our complaint, which we share with the other place, is that the Government's decision to introduce the Bill in its present form is not evidence-based. It ignores the responses to the consultation exercise; it promotes consequences that are foreseeable, but which do not appear to have been foreseen by the Government; it transfers commissioning powers away from local areas and into the hands of NOMS and therefore into the control of the Secretary of State, as mentioned in the debate we had earlier today; it reduces ministerial accountability; it undermines much of the probation service's ability to do its work; it may compromise training standards, although we may have a chance to discuss that point later this evening; and it may undermine the concept of a probation profession, a point that was made by Labour Members earlier.

All those arguments are worth restating, because the Government are not sure of what they are about. This is the third restructuring of the probation service since 2000, but they have not prepared an adequate business case to justify their proposals, nor produced any evidence that the restructuring will reduce offending or increase public protection.

Moreover, the Opposition have managed to discover that the proposals will be hugely expensive. I mentioned, in a recent intervention on Mr. Browne, that NOMS has a budget that is about £60 million or £80 million bigger than that granted to the front line of the probation service. The Government are spending hundreds of millions of pounds on chairs, desks and filing cabinets for the NOMS headquarters, and on moving no doubt highly qualified officials from the prison and probation services and the Home Office to an office in Whitehall where they wonder what they are supposed to do. We believe that that money would be better spent on probation officers, and on supervisory provision through the private and charitable sectors.

The Government might need the delay and time for consideration that the amendments would provide to ensure that the legislation produced is not muddled. I urge the House, or at least, as much of it that is here—

We are right behind you.

I thought so: all young, brave officers say, "Charge, men, I'm right behind you!" I hope that all hon. Members will take this opportunity to think carefully about what they are doing.

Amendment No. 22 would make the Government and the Secretary of State more accountable. The Bill gives the Secretary of State huge powers to amend the law by secondary legislation. The question of whether the Secretary of State should use the affirmative or the negative procedure to change the law has been debated, and the Minister of State said in a letter of 17 July that the Government accept that some parliamentary scrutiny "would be appropriate". That is very nice of him, but he proposes that it should take the form of the negative rather than the affirmative procedure. I had hoped for rather more than that.

If the Bill is to make progress, the Government should accept the procedure set out in amendment No. 22, which proposes what is known colloquially as the super-affirmative procedure. The proposed system is logical and clear, and would lead to far greater parliamentary scrutiny, with the result that the Secretary of State would be rendered more accountable to both Houses of Parliament. No democrat who is a member of the Executive should complain about that.

We face one constitutional problem that some people—and, from time to time, I am one of them—say is a benefit. It is that the Executive not only sit in Parliament, but on it as well. The amendment goes some way towards redressing the balance. If we can get the Government to ensure that their measures are "superly" affirmed, the result may be that the Executive are required to look Parliament more directly in the face.

Amendment No. 38 deals with the date of implementation. It may not be known by many in the Chamber that the implementation provision is to be found on the last page of the main body of the Bill, in clause 38. The provision permits the Secretary of State to designate an appointed day for the Bill to come into force. Amendment No. 38 would mean that the appointed day would be provisional on the factors referred to in subsections (1A) and (1B) in the amendment. Those seem entirely sensible and logical matters to take into account. [ Interruption. ] I am informed that the Government are so concerned about the super-affirmative procedure that they would like to speak at some length on the subject. I would be delighted if Mr. McAvoy, who is concerned about my well-being, could have that opportunity, but sadly he is part of the silent service, so we have merely to stand here and admire him in every possible way. Unfortunately, the argument that he has put to me politely on paper does not move me at all and, in due course, I will ask for the opinion of the House on the procedural matters in this group of amendments.

It is fair to say that this group of amendments does not go as directly to the heart of the Bill as the previous group. None the less, they are significant and worthy of brief comment. I rise to highlight two objectives to which I hope we in this House attach importance.

First—everybody will obviously share this objective—we wish to have legislation that reduces the reoffending rate and that is able to deal effectively with the problems that affect all our constituents. To that end, it is important that Ministers properly digest all the relevant reports, that we take stock of informed contributions to the debate, and that we try to make the Government and all their agencies work as effectively as possible to try to deal with this significant problem. Apart from the desire to avoid inconvenience, I cannot see why Ministers would deeply object to trying to allow and accommodate serious attempts to improve efforts to reduce reoffending rates.

The second, related, objective of this place is to try to make sure that the legislation that we pass is effective and meets its own objectives. Mr. Garnier touched on the subject a moment ago. We have had several consultation papers on the subject and a number of attempts to restructure probation services. In fact, we have had so many changes that, when the Bill had its Second Reading in this House in December, it was sponsored by a completely different Department from the Department that now seeks to conclude the deliberations. We can say with some confidence that this is not a settled area of Government policy.

Given that that is the case, it seems reasonable that proper reflection should take place to make sure that the legislation is effective, that reoffending rates are tackled in the best way possible, and that the Secretary of State himself is held fully accountable. For all those reasons, my party is minded to reject the Government's position on this group of amendments and to support the hon. and learned Gentleman when he seeks to test the opinion of the House.

With the leave of the House, I shall comment on the assertions made by Mr. Garnier on the performance of the National Offender Management Service. He mentioned comments that I made when I visited Leicester race course in his constituency. On that occasion, NOMS gave me a warm welcome, and in the years in which the service has been operational, there has been significant improvement to performance. Let me give him a couple of figures to ponder while he reflects on the progress of the Bill.

In 2005-06, the target was for 40,000 offenders to take part in the basic skills programme, and 44,972 offenders started the programme. The target for key work skills awards was 120,000 people, and 186,000 people achieved those awards. The target for enhanced community punishment unpaid work completion was 50,000, and over 51,000 individuals completed unpaid work. I am proud of the fact that the offender management service is delivering services, both in prison and in the community, and that it is achieving some of the targets that we have set, but we are not complacent, as was shown in our debate on the previous group of amendments. We want improvements, and we want to make sure that there are drivers to help underperforming probation services to improve.

The hon. and learned Member for Harborough and the hon. Member for Taunton (Mr. Browne) seemed to suggest that the Government had been in a mad rush to get the legislation through the House, but that "mad rush" goes back to my noble Friend Lord Carter's report in 2003, some four years ago. The amendments before us ask us to reconsider what Lord Carter said in 2003, and the issues considered in the consultation in 2005. Essentially, it asks us to revisit the Bill's progress through this place and the other place over that period, and to revisit our debates to date, just in case the Government decide that what they have sought to do so far is wrong and not applicable.

The hon. and learned Member for Harborough will be aware that the deadline for expressing interest in forming part of the initial wave of probation trusts has passed. Twenty-two of the 35 probation boards eligible—nearly two thirds of them—expressed an interest in becoming probation trusts in the first wave. The probation boards that have expressed an interest in becoming trusts, including in his area of Leicestershire, would not welcome a further delay to the consideration of that policy objective. They have expressed an interest, and they want to consider going on to the next stage, and we are now progressing with that stage in depth. We have had discussions and there has been progress; the Government have not rushed the proposals. The Lords amendments seek to delay still further the impact of the legislation.

I agree that the gap between 2000 and 2007 cannot be described as a short period, but of course we are not talking about a continuum. There has been a number of reviews, and a number of proposals put forward, and we are now dealing with the third reorganisation of the probation service in that relatively short period. It is no good saying, "We've been thinking about the subject for some time, so the process can't be described as a rush." If we examine and analyse what has happened in those seven years, we can see that the thinking process behind the Government's proposals has been, shall we say, a little disorganised. That is the complaint, and that is why it is so important that there be a delay period that allows the Government time to see how the measures will work in practice, before they bring the Bill into full effect.

I accept what the hon. and learned Gentleman says, but I am not convinced that further delay to the process and further consideration would be valuable. My colleagues in NOMS and I will obviously take a keen interest in the roll-out of the waves of trust applications. We will take a keen interest in the development of NOMS at probation trust/board level, and we will monitor it carefully as a matter of course. I do not believe that the further delay proposed in the amendment would be of great assistance to the process, or that the super-affirmative procedure would add anything to parliamentary scrutiny that the affirmative procedure proposed in the Bill will not add. For those reasons, I regret that I must disappoint the hon. and learned Gentleman, much as I enjoyed visiting his constituency to discuss matters with his constituents. I urge the House to reject the amendment.

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

The House divided: Ayes 286, Noes 159.

Question accordingly agreed to.

Lords amendment disagreed to.

Lords amendment: No. 11.

I beg to move Government amendment (a) in lieu of Lords amendment No. 11.

Order. The Minister must move the motion to disagree.

I beg to move, That this House
disagrees with the Lords in the said amendment. However, I also beg to move Government amendment (a)—

Order. We are considering Lords amendment No. 11 and the motion to disagree thereto. With this, we may discuss Government amendment (a) in lieu thereof. However, we do not move it at this stage.

I believe that I have fulfilled the requirements.

Members of another place expressed genuine anxiety about the risk of conflicts of interest if one organisation proposed and provided outcomes for offenders. They feared that advice might be skewed towards the outcomes that the organisation provided. Another place amended the Bill to require individual providers of probation services and their officers to ensure that their advice to courts and the Parole Board did not give rise to any conflict of interest.

I have carefully considered the points that were raised in another place together with concerns that were expressed here earlier. I now believe that it would be helpful to deal with the matter on the face of the Bill. I have a small quibble with the Lords amendment because it places a duty on individual providers and officers, whereas we believe that it would be appropriate to give the duty to the Secretary of State, who is better placed to take the appropriate steps to ensure that the conflict of interest does not arise.

I am grateful for the assistance of the other place in making the improvement and I hope that Government amendment (a) will help. I believe that we have tackled the spirit of the other place's concerns. I commend amendment (a) to hon. Members.

The debate is less contentious that those that we have held so far. I am grateful to the Minister for accepting the thrust of the arguments in the other place and those that were drawn to his predecessor's attention in Committee. As a Member of Parliament and having declared my interest as a recorder, I raised our concerns about the conflict of interest that might arise if a provider of a probation service had an interest in the recommendation that he or his organisation made to the sentencing court—be it the Crown court or a magistrates court. Clearly, some progress has been made, thanks to discussions in another place on conflict of interest.

I should like the Minister to explain in greater detail the difference between Government amendment (a) and the Lords amendment. They are similar in intention but there are significant differences of detail. The Lords amendment states:

"In carrying out their functions under this Part, and in particular in providing any assistance to the courts and to the Parole Board for England and Wales, providers of probation services and their officers shall ensure that such assistance does not give rise to any conflict of interest".

Let us leave aside for the moment the argument about whether the Secretary of State or the provider of probation services is the appropriate person to fulfil the requirement. If I got into that, I would repeat the arguments about the top-down delivery of probation services and so on, and I do not want to do that. However, there is a difference between whoever keeps an eye on the risk of conflict "ensuring" that it does not occur and his—as is suggested in Government amendment (a)—having

"regard to the need to take reasonable steps to avoid" conflict. That is a very long-winded way of saying, "we'll do our best." I prefer the Secretary of State to be placed under an obligation that he should ensure that there is, so far as practicable, no risk of a conflict. The issue might have to go back to the other place. If so, between now and then, I suggest that the right hon. Gentleman consider the difference between "ensure" and

"have regard to the need to take reasonable steps to avoid (so far as practicable)".

If he can persuade himself that it would be better to insert "ensure" rather than the alternative, we would be completely ad idem, as opposed to just wishing to travel down the same path.

The issue is not a matter of semantics; there is a real difference between the two proposals as drafted. I urge the Minister to do something about that if he can. The Government amendment in lieu refers to the necessity to

"take reasonable steps to avoid (so far as practicable) the risk that...the provision, in pursuance of the arrangements, of assistance to a court or to the Parole Board".

That is a welcome paragraph. The amendment then refers to the risk that

"the carrying out, in pursuance of the arrangements, of any other activities, might be adversely affected by any potential conflict between the provider's obligations in relation to those activities and the financial interests of the provider."

That broadly reflects the thrust of the second half of the Lords amendment, so my concern there is of no account. Simply because I am happy to accept, for present purposes, the Government amendment in lieu—I am not going to take this matter to a dispute—I urge the Minister to take into account some of the remarks that I have made on the wording, so that the obligation on the Secretary of State is that much firmer than it currently appears to be. If the Minister cannot offer me that help, could he please explain the Government's requirement that there should be that obvious difference, between "ensure" and the necessity to take reasonable steps?

My contribution will be extremely brief, because I wish only to echo some of the sentiments that the hon. and learned Gentleman has expressed. Lords amendment No. 11 was a Conservative amendment introduced in the other place, but it was supported by my party and as a consequence passed there, which is why we are considering it here this evening.

We remain concerned about the potential for conflicts of interest. Although we welcome the progress that has been made, in terms of the Government seeking to accommodate and respond to those concerns, in an ideal world we should like them to move further. We would greatly welcome it if the Minister were minded to address himself to the points that the hon. and learned Gentleman has made about whether the wording of the Government amendment in lieu could be made tighter and more onerous in the burden that it imposes.

I shall try to respond to the points that have been made. I am grateful for the relatively warm welcome that the hon. and learned Member for Harborough and the hon. Member for Taunton have given the Government amendment in lieu. I believe that we have moved and that we have listened to another place, but obviously there are still matters on which I should be happy to reflect, which the hon. and learned Gentleman has brought to the House's attention.

The hon. and learned Gentleman asked, in broad terms, whether it was more appropriate for the duty to rest with the Secretary of State rather than with the provider. We have taken the view that regional commissioners will have a strategic overview of all services that are being delivered in their region. That means that they will be better placed to assess and police potential conflicts of interest than the Secretary of State. However, I am again happy to reflect on what the hon. and learned Gentleman said and to listen to the points that have been made.

The hon. and learned Gentleman asked why we had used the words "so far as practicable". Parliamentary counsel suggested that they were the most appropriate form of words to cover the issues raised in another place. I am happy to reflect on what the hon. and learned Gentleman said, but that was the point that was put to us.

I do not want any more bites at the cherry than are necessary. I am not so much fussed about "so far as practicable", as with

"the need to take reasonable steps to avoid" as compared with "ensure". That is the distinction that worries me.

I will reflect further on the hon. and learned Gentleman's points. We will certainly try to ensure that conflicts of interest do not cause problems.

When the court requests a pre-sentence report, it will also provide an indication of the expected sentencing outcome. The report can then be focused accordingly. Secondly, the report must adhere to national standards, which has been made clear in the strengthened amendment. Thirdly, there is clear guidance about the type of structure appropriate for the report, based on the seriousness of the offence and appropriate response. I hope that that helps the hon. and learned Gentleman with his concerns, although, as I say, I am happy to reflect further.

We have moved considerably in respect of the Lords amendments. I hope that the House will accept our proposals while I undertake to look further into the hon. and learned Gentleman's points.

Lords amendment disagreed to.

Government amendment (a) in lieu of Lords amendment No. 11 agreed to.

Clause 5

Power to establish probation trusts

Lords amendment: No. 14.

With this it will be convenient to take Lords amendment No. 35 and Government amendment (a) thereto, and Lords amendment No. 36.

I beg to move Government amendment (a), which amends Lords amendment No. 35 and relates to clause 5(1)—

Order. We are debating Lords amendment No. 14. Together with it, we are debating Lords amendment No. 35, Government amendment (a) and Lords amendment No. 36. The principal subject of the debate, on which the Question will initially be put, is Lords amendment No. 14. The question is whether you agree or disagree with that.

My apologies for the confusion, Mr. Deputy Speaker.

In due course, I shall move amendment (a). That would amend Lords amendment No. 35, which relates to clause 5(1). That enables the Secretary of State to establish, dissolve or alter the name or purposes of a probation trust by means of an order. An order establishing a probation trust under clause 5(1) will set out the names and purposes of the trust.

We originally proposed that the order should not be subject to parliamentary scrutiny. There is a precedent for this matter in respect of procedures applying to NHS trusts. As before, however, I have listened to the views expressed in the other place and I acknowledge the legitimate interest of Parliament in these matters. I accept that parliamentary scrutiny is appropriate. However, given the number of trusts to be established and the routine nature of the process as we move from boards to trusts over the next three years, I feel that the order should be subject to the negative rather than the affirmative procedure. That will provide the necessary safeguards to prevent excessive demands on parliamentary time.

There is one further strand to the amendment, relating to clause 5(3)(c), which gives the Secretary of State the power to extend probation purposes by regulation. In response to a recommendation from the Delegated Powers and Regulatory Reform Committee, the Lords accepted a Government amendment subjecting that power to an affirmative resolution procedure.

Order. May I interrupt the Minister, as it is important for us to clarify the position? Is the Minister agreeing or disagreeing with Lords amendment No. 14? Would he like to express his intention?

I apologise, Mr. Deputy Speaker. I am seeking to agree with amendment No. 14, so I beg to move, That this House agrees with the Lords in the said amendment.

In tabling amendment (a), which will amends Lords amendment No. 35, I have indicated that we are moving to accept the principle of parliamentary scrutiny, which the other place requested. Originally, we proposed that the orders should not be subject to parliamentary scrutiny. I have now decided that such scrutiny is appropriate, and I have indicated that the order should be subject to the negative rather than the affirmative procedure.

We have moved some way towards the other place's general wishes on such matters.

Before the Minister concludes his remarks, may I clarify his position, so that I can respond more or less intelligently to it? As I understand it, the Government now apparently accept Lords amendment No. 14, which would remove clause 5(6), but disagree with Lords amendment No. 35, which removes the word "under" and adds the words,

"or regulations under—

( ) section 5(1) or ( 3)(c),"

The Government wish to replace "5(1) or (3)(c)" with "5(3)(c)". The effect of the Government's case is that the statutory instrument will be subject to the negative, as opposed to the affirmative, procedure. Will the Minister remind the House of which bit of his argument puts forward that case?

For the avoidance of confusion—I would not want to confuse the House in the presence of such an eminent lawyer as the hon. and learned Gentleman—the Government seek to agree with Lords amendment No. 14, which is in relation to clause 5. In relation to clause 33, however, the Government seek to disagree with Lords amendments Nos. 35 and 36. I have tabled Government amendment (a), which would provide for the negative rather than the affirmative procedure. I have moved some way towards the position of the other place.

With that clarification, and with my apologies to the House for the confusion at the beginning of the debate, I believe that the hon. and learned Gentleman will, on reflection, see that the Government are trying to support the objective of the other place. We are simply changing from the affirmative to the negative procedure, because, given that there are 40-plus trusts, it would cause some difficulty were the affirmative procedure used each time the matter came before the House.

I think that I now understand what the Government are seeking to achieve. I am pleased that they are prepared to accept Lords amendment No. 14. I shall have a few things to say about Government amendment (a).

First, may I establish what we are talking about? We are discussing a power given to the Secretary of State to establish probation trusts, the successor bodies to probation boards, which have been happily doing their work over the last few years following the Government's changes to the probation system in 2000.

Clause 5 states:

"The Secretary of State may by order...establish a probation trust...alter the name or purposes of a probation trust...dissolve a probation trust."

The Secretary of State can require the probation trust to do all sorts of things, which are set out in the clause, in line with the purposes that he will decide for it. Interestingly enough, clause 5(3) states:

"The purposes of a probation trust may include all or any of the following...the making or performance by the trust of contracts with another probation trust or any other person which provide for the carrying out by the trust of activities which contribute to the achievement of any purpose mentioned in section 2(1)...the making or performance by the trust of contracts with the Secretary of State for the carrying out by the trust of activities anywhere in the world"— well, I have heard of ambition, but that seems to take it to an extraterritorial dimension—

"which...are to be carried out in connection with persons who are or have been subject to proceedings in service courts...correspond to activities which, if carried out in connection with persons charged with or convicted of offences, would contribute to the achievement of any purpose mentioned in section 2(1)...any other purpose specified for the purposes of this section by regulations made by the Secretary of State."

So the Secretary of State wants us to give him a collection of powers, which he can then mess around with through secondary legislation.

Clause 33, in part 4, deals with orders and regulations, so it ties directly back to clause 5. Clause 33(1) states:

"Any power of the Secretary of State to make an order or regulations under this Act is exercisable by statutory instrument.

Subsection (2) states:

"An order or regulations under this Act my make...different provision for different purposes or different areas"— unspecified and unseen—

"(b) incidental, supplemental, consequential, saving or transitional provision."

So, under clause 33(2), the Secretary of State will be given huge powers to alter the legislation and the arrangements made between himself and probation providers. No doubt all this will be divvied up by the regional offender manager, as the lead provider or commissioner.

As there will be lots of probation trusts and as the Secretary of State no doubt sees himself making lots of provisions,

"incidental, supplemental, consequential, saving or transitional", he would find it rather more convenient for that to be done under the negative, as opposed to the affirmative, procedure. I am sorry, but I am not here for the convenience of the Government. Parliament is not here for the convenience of the Government. The Government are here for the convenience of the people and the people's representatives in the Chamber, elected by electors. If it is convenient for the Minister to require the Secretary of State to push all that through using the negative, as opposed to the affirmative, procedure, I am afraid that he does not carry me with him.

I wish to apply such negative proceedings as I can to Government amendment (a), so I might ask you, Mr. Deputy Speaker, to allow me to test the opinion of the House on Government amendment (a), even if I am delighted that the Government accede to Lords amendment No. 14. It is highly important that Parliament, even by the very tips of its fingers, maintain some purchase on the Executive; otherwise, the Executive will just run away with themselves by using secondary legislation to change laws, particularly laws that affect the criminal justice system. I really do think that from time to time, the Government ought to condescend to allow Parliament to hold them to account.

Is not one of the problems with the Government that they are including more and more secondary legislation in Bills, and then using the negative procedure, which really reduces scrutiny by Parliament? That needs to be looked at again.

I wholeheartedly agree. The Government increasingly use administrative convenience to justify reducing the amount of parliamentary scrutiny given to the making of laws. These laws are not written in the air. They affect the people of this country, and there can be adverse consequences for those who breach them. We need to tread carefully when we are considering adjusting part of the criminal justice system.

The Minister was not impressed by my arguments, or even by those of the other place, about the super-affirmative procedure for which I argued a moment ago. He has now gone right to the other end of the spectrum. Far from permitting the use of the super-affirmative or the affirmative system, he wants to whack this through using the negative system. This is one of those occasions on which Parliament must draw a line and say, "Thus far and no further."

I congratulate both the Minister and Mr. Garnier on making sense of the alphabet soup of legislative proposals that have been put before us. I am sure that all hon. Members who have attended the debate are now much clearer about where we stand and the features of the proposals that we are considering.

I start with the view that was articulated by the hon. and learned Gentleman: I am suspicious of untrammelled and unfettered Executive power and authority. It is increasingly a feature of the Government's legislation that power is vested in the Secretary of State without as much reference to Parliament as I would like. There is particular cause for concern, because Parliament will not be fully scrutinising decisions taken in this top-down system involving so-called regional offender managers who will be imposing their will and that of the Secretary of State on localities that would be better suited to making such decisions themselves.

I welcome the Minister's concession that orders that would not have received any parliamentary scrutiny at all will now receive a degree of such scrutiny. However, it was extraordinary that the Government even contemplated the way forward that they initially proposed. The fact that they thought that no system of parliamentary scrutiny would be necessary was perhaps indicative of the mindset of a Government who have been in power for more than a decade and are more concerned about making legislation efficient for the convenience of Ministers than about elected Members' ability to scrutinise the Government effectively. I have a bias towards proper scrutiny of the Government. Ministers should welcome the burden of that scrutiny, because it adds to the quality of legislation. For that reason, although I welcome the Government's modest step in the right direction, I think that the Minister should be willing to take a bigger, bolder and more ambitious step by allowing the use of the affirmative procedure, rather than the negative procedure. If the matter is pressed to a Division, I will vote accordingly.

With the leave of the House, Mr. Deputy Speaker.

I have accepted the other place's proposal that parliamentary scrutiny of these matters is required. I hope that Mr. Garnier and Mr. Browne welcome the fact that the Government have recognised that there is a need for such scrutiny. The simple difference between us is whether that scrutiny should be carried out under the affirmative or the negative procedure.

Given the amount of such parliamentary scrutiny that might be required, the time that that might take in the House and the fact that these issues will often be uncontroversial, I thought that it would be better to use the negative procedure. If people are concerned about the issue, they can pray against the order and it can be debated and determined by the House.

I hope that the Minister agrees that just because the order is prayed against does not necessarily mean that it will be scrutinised.

I accept that, and I appreciate the point that the hon. Gentleman has made. However, I must tell the House, the hon. and learned Member for Harborough and the hon. Member for Taunton that if the matter was controversial, there would be an opportunity to debate it on the negative procedure. I am simply trying to ensure that parliamentary scrutiny takes place if needed. I have moved my position. I have not moved as far as another place would wish, but I have tried to suggest a helpful compromise.

Conversely, does the Minister not accept that if it is an uncontroversial matter but is none the less to be dealt with under the affirmative procedure, the House will not delay it? It could appear on the Order Paper in such a way that it does not upset the business managers—we would not want to do that, would we?

As a former business manager in another life, I certainly would not want to have been upset in that way, nor would I wish to upset my colleagues on this occasion. There is a disagreement between us and, as ever, I suggest that we test whether the affirmative procedure is appropriate. I urge the House to support Government amendment (a).

Lords amendment agreed to.