My Lords, I beg to move that the Commons amendment be now considered.

Moved accordingly, and, on Question, Motion agreed to.

[The page and line references are to HL Bill 42 as first printed for the Lords.]

MOTION A

Before Clause 42, insert the following new Clause—

"Community restorative justice schemes

(1) The Secretary of State shall maintain a public register of accredited community restorative justice schemes.

(2) Accredited community restorative justice schemes shall be inspected regularly by the Criminal Justice Inspectorate, which shall report on such inspections to the Secretary of State who shall publish a report.

(3) A report under subsection (2) may make such recommendations as to the conduct of a scheme as the Criminal Justice Inspectorate thinks fit.

(4) If the Criminal Justice Inspectorate considers that a scheme is unsatisfactory or is operating in an unsatisfactory manner, it may recommend to the Secretary of State that it be removed from the register."

The Commons disagree to Lords Amendment No. 3, but propose Amendment No. 3A in lieu—

Before Clause 42, insert the following new Clause—

"Accredited community-based restorative justice schemes

(1) The Secretary of State shall maintain a register of schemes that appear to him—

(a) to be community-based restorative justice schemes, and(b) to meet requirements determined and published by him.

(2) The requirements shall include a requirement about cooperation with the Chief Inspector of Criminal Justice in Northern Ireland.

(3) The Secretary of State shall add a scheme to the register if—

(a) a person applies for the scheme to be added, and(b) the Secretary of State thinks that the scheme is a community-based restorative justice scheme which meets the requirements.

(4) The Secretary of State may remove a scheme from the register if, having considered any report about the scheme made by the Chief Inspector, he thinks that—

(a) it is not a community-based restorative justice scheme, or(b) it does not meet the requirements.

(5) The Chief Inspector may inspect a scheme which is registered or which is the subject of an application for registration; and—

(a) he shall from time to time make a report to the Secretary of State on inspections carried out by him by virtue of this section, and(b) section 49(2) to (4) of the Justice (Northern Ireland) Act 2002 (c. 26) (laying of Chief Inspector's reports before Parliament etc) shall apply in relation to the report.

(6) The Secretary of State shall make arrangements for inspection of the register by the public."

My Lords, I beg to move Motion A, that the House do not insist on its Amendment No. 3 and do agree with the Commons in their Amendment No. 3A.

We have discussed these issues at some length and remain of the view that a lot more unites than divides us on this issue. With respect to the noble Lord, Lord Trimble, who in due course will propose an amendment, our view is that the clause already addresses his concerns. What we want to achieve is essentially the same as he intends, and I hope that that offers some comfort. We have some concern that his amendments, which are obviously well intended, will have some unfortunate side effects that he would not wish to see.

The government amendment was drafted by parliamentary counsel to provide that the chief inspector "may" inspect a restorative justice scheme, to confer on him the power to do so. The Government intend that the chief inspector will inspect schemes as regularly as he thinks appropriate. The noble Lord's amendment creates instead a statutory duty on the chief inspector regularly to inspect all schemes. Under such an arrangement, the chief inspector could be in breach of that statutory duty if he did not inspect all schemes with the same regularity, whether or not he believed it appropriate to do so. This could leave the chief inspector vulnerable to legal challenge when he is merely carrying out the task conferred on him by the Government with the diligence that he has shown in his work so far. For example, there might be occasions when the chief inspector will wish to inspect some schemes more frequently than others, either in response to complaints or simply to satisfy himself that proper standards are being met. The noble Lord's amendment would constrain him in his ability to do this.

I regret to say, too, that the amendment appears to suggest that regular inspection is required of schemes that are the subject of an application to register. Schemes in that transitional position are subject to a preregistration inspection and are inspected again by consent only if they have initially failed to meet the required standards for registration. The application process should take about two to three months, so we do not see the need for more than one inspection during the application process unless the chief inspector wishes to check that conditional recommendations have been implemented.

As for handling inspection reports, the government amendment provides that each inspection will be reported by the chief inspector but affords the flexibility for several inspections to be addressed in one report when the chief inspector thinks it appropriate to do so. Each of those reports representing all the inspections undertaken would then be published and laid before Parliament by the Secretary of State. Amendments Nos. 3C and 3D remove from the chief inspector the flexibility to report collectively on a number of schemes operating under the same organisational banner. We have seen that operating already very effectively in his collective pre-accreditation inspection report on four community-based restorative justice schemes, affiliated to the Northern Ireland alternatives. That was laid before your Lordships' House on 2 May. But that is a minor point.

The chief inspector will still report on all inspections, but the amendment would limit the exercise of his discretion to inspect and report in the manner that he thinks most appropriate. It is as simple as that. We believe that it is important that the chief inspector retains the flexibility to target those schemes that he assesses might require more frequent announced or unannounced inspections than others. I am certain that is what noble Lords want to happen. Taken collectively, the amendments to the Motion could expose the chief inspector to the risk of unnecessary and potentially mischievous challenge where he might seek to use his own judgment in setting inspection schedules.

On that basis I hope that the noble Lord will not press his amendments. We are at one on this. The policy remains the same as it did before we even started down the route of agreeing to this amendment, which we did at Third Reading. We have simply tried to put the policy as operated into legislative form, meeting the request made by the noble Lord, Lord Trimble, which had the agreement of the House. Parliamentary counsel has chosen this way of doing it. It meets all our policy objectives and gives discretion to the chief inspector, who performs the professional function. I repeat the following for the avoidance of any doubt: a power is provided that the chief inspector may inspect a scheme. That has been done in order to confer on him the very power to inspect a scheme. That is the term which parliamentary counsel thought most appropriate in order to give the chief inspector that power.

Moved, Motion A, That the House do not insist on its Amendment No. 3 and do agree with the Commons in their Amendment No. 3A in lieu.—(Lord Rooker.)

MOTION A1 line 18, leave out "may" and insert "shall regularly" line 20, leave out "from time to time make a" line 21, leave out "inspections" and insert "each inspection"

My Lords, I beg to move, as an amendment to Motion A, Motion A1, at end to insert, "but do propose Amendments Nos. 3B to 3D to Commons Amendment No. 3A".

I was very pleased when the Minister in this House accepted the new clause that I tabled a few weeks ago. I particularly appreciated the comments that he made in doing so when he referred to the new clause having four main elements, two of which comprised "shalls" and two of which comprised "mays". He noted that there was a balance between what the inspector would be required to do and those matters on which he would have discretion. He said that parliamentary draftsmen would look at these matters and, if they felt that the drafting could be improved, would do so. I had, and have, no difficulty with parliamentary draftsmen looking at these matters and tidying them up. I shall not fuss about the form of matters; it is the substance which is important to me. However, I regret to say that I believe there has been a change of substance here.

I noted that when Motion A was being considered in another place, the Minister, Mr Goggins, said:

"The Government amendment is therefore consistent with the approach taken in existing legislation relating to the chief inspector's other inspection functions".—[Hansard, Commons, 10/5/07; col. 330.]

Would that it were. The amendment has changed one of the "shalls" that I had in the original new clause to a "may". I refer to the "shall" that imposed upon the inspector of criminal justice a duty to inspect schemes. Under this amendment that has now become a discretion, which I do not believe is a step in the right direction.

It is instructive to look at the powers and functions of the chief inspector under the existing legislation. This is referred to in the Government's amendment. Section 46 of the Justice (Northern Ireland) Act 2002, headed, "Functions of Chief Inspector", begins:

"(1) The Chief Inspector must carry out inspections of the following organisations".

It does not say "may" or "shall", but "must". The organisations listed include the Police Service of Northern Ireland, Forensic Science Northern Ireland, the State Pathologist's Department, the Public Prosecution Service for Northern Ireland, the Probation Board for Northern Ireland, the Northern Ireland Prison Service and the Justice Board. All these things must be inspected, but when we come to community restorative justice schemes, the Government prefer "may".

I refer to the publication of reports. Subsection (5)(b) in the Government's Amendment No. 3A refers to Section 49 of the Justice (Northern Ireland) Act 2002. The amendment states that,

"section 49(2) to (4) of the Justice (Northern Ireland) Act 2002 ... shall apply in relation to the report".

It leaves out Section 49(1), which states:

"The Chief Inspector must report to the Secretary of State on each inspection and review carried out by him".

Against the background of those mandatory requirements in the 2002 Act, I found great difficulty in sympathising with the argument put by the Minister. If it is a matter of form, I am not concerned with it; it is a question of the substance. The substance with regard to the other functions of the criminal justice legislation under the 2002 Act is to put a duty on the inspector to inspect, and to put a duty on him to report with regard to each inspection. If that is the function and the duty of the inspector with regard to all those other matters that he has to look at, why should those responsibilities be less with regard to community restorative justice schemes? The other functions that the inspector is inspecting—the police, the prosecution service, the juvenile board, the probation board and all the rest of it— are carried out by professional persons whose knowledge and skill is known from their strong record. A duty is put on the inspector with regard to the inspection of those professional persons carrying out duties that they have carried out before in a responsible way.

Here, we have community restorative justice schemes which, by and large, are going to be run by former paramilitaries—the guidelines adopted by the Northern Ireland Office are designed to enable former paramilitaries to run them—yet with regard to them there will be a lesser requirement in terms of inspection and publication. That naturally gives me concern. I want to see community restorative justice schemes operating properly, and the only measure that we have to ensure that is the inspectorate. The inspectorate therefore should be operating with regard to community restorative justice schemes to the same standard and under the same duties as apply to the functions of the inspectorate generally.

Moved, as an amendment to Motion A, Motion A1, at end to insert, "but do propose Amendments Nos. 3B to 3D to Commons Amendment No. 3A".—(Lord Trimble.)

My Lords, noble Lords will be well aware that my party and my honourable friend Laurence Robertson did not vote against the Government's proposed amendment in another place. Perhaps that is because we are a very much more sophisticated refining Chamber than another place. It is quite technical to compare the two amendments. They are detailed comparisons, and my noble friend Lord Trimble, coming from the background that he does, is best able to do exactly that, and he has demonstrated to your Lordships the key differences and the key matters about which we are concerned.

The community justice system is very important. It is a high-risk project in Northern Ireland. It is the last of the major concerns that my party has had as we have progressed to devolution. I was very pleased when the Minister was able to accept the amendment proposed by my noble friend Lord Trimble. I was disappointed, despite my lack of experience as a lawyer, when I first read the Government's amendment and realised that they—for one reason or another, and I do not really understand why—had weakened the Bill. The amendment proposed by my noble friend Lord Trimble was clear, concise and demanding. The Government's amendment is not that; it is weak and it leaves more open to chance in a high-risk operation of community justice systems in Northern Ireland, some of which will undoubtedly be run by ex-paramilitaries. I support my noble friend's amendment.

My Lords, I, too, was initially taken in by the Minister's comments that the inspector needed to have flexibility. Then I heard the incisive argument of the noble Lord, Lord Trimble, who explained why the power might be too flexible. Given the embryonic nature of these schemes, we are in uncharted waters and much could go wrong with their implementation—although we all hope that they succeed. I understand why we should be more flexible and give greater discretion to inspectors of other agencies, but tight scrutiny by the inspector is needed in the initial period. I was persuaded by the arguments of the noble Lord, Lord Trimble. If he were to press his amendment, we would support him.

My Lords, if I had wanted to take offence, I could have. The noble Lord, Lord Smith of Clifton, should know that I am not trying to take anyone in. The Government's proposal in the amendment of the other place is wholly consistent with what has been said here. I repeat that the chief inspector, under Amendments Nos. 3B, 3C and 3D, would statutorily be required to inspect all schemes on the same basis. However, we are not dealing with criminal justice agencies set up by Parliament. The inspector will not inspect any scheme unless it invites him to do so by applying for accreditation. We are dealing with voluntary bodies set up under the protocol. That is wholly different from the position of the other agencies in the criminal justice system mentioned by the noble Lord. None of these restorative justice bodies will be inspected unless they apply voluntarily to be accredited. There is no comparison with the other agencies in that regard; if they apply for accreditation, they will be inspected. Therefore, there is no difference from what was said previously.

Frankly, I do not understand the point about reporting. Every inspection will be reported upon under the government amendment. It is left to the Chief Inspector of Criminal Justice to choose whether to publish single reports or three or four reports in the same week. We should leave that to the professional in charge. Why should we be so prescriptive? I repeat that we are discussing voluntary bodies. I understand the underlying argument and the suspicions regarding people who run such bodies, but those people are responsible for the governance and can voluntarily say, "We would like to be accredited and therefore enter the inspection regime". If that is the case, they will be inspected. Therefore, one cannot compare that arrangement with that for the other bodies mentioned by the noble Lord, Lord Trimble. The government amendment gives the chief inspector power to inspect. We are leaving that up to the inspector. He will report, he can make unannounced inspections, reports will be published and everyone will be able to see what is going on.

My Lords, perhaps I may clear up one matter. When I said that I was "taken in", I was not accusing the Minister. I was remarking on my gullibility. I have the utmost respect for him, but my frame of mind was such that I was easily hypnotised by his tremendous powers.

My Lords, the noble Lord is an old softie and I withdraw any criticism of him; it was just the way he started his speech.

My Lords, can the Minister say whether, in situations in which a duty is placed on the chief inspector, there is any implication regarding the number of inspections or anything of that sort that would be elided by the discretionary "may" in the amendment?

My Lords, I do not think that that is the case. I gave an example of the inspector reporting on four schemes which would come under the same umbrella, but there is no limit to the number; it is up to the chief inspector. There is no question but that each inspection will be reported on. The question is whether the reports are made singly or whether the inspector chooses to make a report containing the results of more than one inspection. We leave that to the inspector. I do not think that there is any argument that, by implication, inspections will be made and then reports will gather dust for months because someone says that more than one must be put together. That is not the intention at all.

My Lords, I am sorry; that is not the point that I was concerned with. I accept entirely the point about reports being made once inspections are carried out, but I was interested to know whether the duty imposed on the chief inspector to inspect some of the criminal justice agencies, to which the noble Lord referred, implies that they should be inspected at a particular interval or anything of that sort. That seems to be the Minister's argument against a duty being placed on the chief inspector to inspect these schemes once accredited. We are talking about inspections being made not before the schemes are accredited but once they are accredited, and my noble friend wishes to make it a duty on the chief inspector to inspect.

I understood and followed perfectly the noble Lord's introduction and I hope that I was not particularly taken in—I certainly would not have expected to be. I understood him to say that, because a duty would be imposed by my noble friend's original amendment, that would imply a need for the chief inspector to inspect these organisations at particular intervals and would thus limit his discretion. I should have thought that the discretion afforded by the government amendment would allow the chief inspector not to inspect a particular accredited organisation if he thought that the right thing to do, whereas the argument seemed to be that the duty implied a particularly inflexible timescale in relation to inspections.

My Lords, I am sorry; I misunderstood the noble and learned Lord. In this respect, the noble Lord's amendment to the government amendment would create a statutory duty on the inspector to regularly inspect all schemes. My interpretation of that is that all schemes would have to be inspected at the same interval; otherwise, the inspector would be vulnerable to legal challenge. If, while diligently carrying out his work, he decided, as a risk base, that some schemes needed to be inspected more frequently than others—that is the important point—then, under the amendment, he would be constrained to report on all schemes with the same regularity. We think that, frankly, that is a step too far.

There is no question but that all the schemes will be inspected. They will be pre-inspected for accreditation and thereafter they will be regularly inspected at the chief inspector's discretion and each inspection will be reported on. We are simply saying that the inspector should have the discretion to inspect some organisations more frequently than others, based on whether there is a complaint, whether risks are found or whether the people running them change. The inspector has the power to carry out those inspections unannounced. We are saying that the inspector should not be required, as implied in the amendment, to inspect all the schemes that have been accredited with the same regularity. The lawyers are having a field day today and I am just piggy in the middle but my advice is that, if the inspector does not do that, he will be vulnerable to legal challenge because he will not be carrying out inspections with the same regularity, and we think that that would be unreasonable.

My Lords, following on from the debate about the word "regularly", I think that the Minister has given a very inflexible and rather unusual interpretation of it. Going by normal usage of the word, I do not think that there would in any way be the degree of inflexibility that he complains about. Even if he is still worried about that, he might like to turn his attention to Section 47 of the Justice (Northern Ireland) Act 2002, which is the legal framework that the Minister in another place, Mr Goggins, said would be assimilated under his amendment for the inspection of community restorative justice schemes. Section 47 says:

"The Chief Inspector must"— there is that word "must" again—

"from time to time, after consultation with the Secretary of State and the Attorney General for Northern Ireland, prepare a programme specifying the inspections which he proposes to carry out".

The phrase "prepare a programme" clearly indicates not the inflexible regularity that the Minister thinks of, but a regularity that can be tempered with regard to what is being inspected and the appropriate circumstances for it. I do not think that the word "regularly" carries the weight that the Minister attaches to it.

Furthermore, the 2002 Act makes it clear that the inspector can draw up a programme. If that section were to apply to the inspections under the criminal justice scheme, there would be no difficulty. I am not sure whether it does or does not at the moment, because it is not clear to what extent the general provisions of the Justice (Northern Ireland) Act 2002, which regulate the actions of the Criminal Justice Inspectorate and other matters, will also apply to the actions of the Criminal Justice Inspectorate with regard to inspection of community restorative justice schemes. In any event, the Minister's point is not well taken.

I have some sympathy with what the Minister says about the publication of reports. My concern when I saw the phrase "from time to time" was—and the Minister made the point precisely—that the Northern Ireland Office, which for various reasons is sometimes suspected of having too much tenderness towards the concerns and needs of paramilitaries and not enough concern for the safety and rights of citizens, might be tempted to let some embarrassing reports lie gathering dust for a long time. If that concern can be met in other ways, I shall not stand in the way.

I want a clear duty to be placed on the Criminal Justice Inspectorate with regard to the carrying out of inspections of accredited schemes. That is important because, as I said when proposing the new clause, it will greatly strengthen the hands of the Criminal Justice Inspectorate. That is the only safeguard that we have with regard to these novel adventures, which we know carry risks. It is for that reason and because I am not satisfied with the—

My Lords, the noble Lord can do as he pleases with his amendments and seek the opinion of the House, but I am duty bound to put on the record the position of Ministers in the other place. Section 47 does not provide for regular inspections. Therefore, we do not think that the two can be compared. The Minister in the other place said—the noble Lord referred to this—that they had tried to use the framework for what the inspector does in that respect and to transfer that over as far as possible to the framework of an inspection process of what are voluntary, not statutory, bodies.

Section 47 speaks of a planned programme of inspection under Section 46, but the point is that the inspections in this case are in response to the applications from the bodies. We are not dealing with like situations. Parliamentary counsel tried to make an understandable framework, but we are dealing with bodies that, in effect, will not be inspected unless they request it. That is the position, so we are not comparing like with like.

My Lords, I am sorry to say that the Minister's first point is untenable. To say that there is a duty on the inspector to report and to draw up a programme for inspections, but that there is no regularity, is untenable.

On the Minister's second point—I am glad that he mentioned this, because I forgot to deal with it in my earlier comments—the voluntary issue is a red herring. Yes, the schemes are drawn up not by employees of the state but by other groups, but these bodies come to seek accreditation. There would be absolutely no difficulty in saying to those bodies that they must agree to regular inspections as a condition of the accreditation. I do not see that the voluntary character, in so far as there is a voluntary character, affects the issue at all. If they come seeking accreditation, they can be required—as the guidelines require them—to be inspected before they get accreditation. I do not have the guidelines to hand, but it is implicit in them that there should be inspections after accreditation, so the Minister's point on that is also bogus. That being the case, I have no option, particularly in view of the support offered to me in various places, other than to test the opinion of the House.

On Question, Whether the said Motion (No. A1) shall be agreed to?

Their Lordships divided: Contents, 109; Not-Contents, 122.

Resolved in the negative, and Motion disagreed to accordingly.

On Question, Motion A agreed to.