My Lords, a rehabilitation revolution will be welcome. Where I have criticisms, they are intended to be constructive this afternoon and in the further consideration of these clauses, because I want to see that revolution work. My first concern, as other noble Lords have indicated, is that the rhetoric around this should not become all-important and an end in itself. I wonder whether legislation would have been thought to be necessary if it were not for a perceived need to articulate that punishment is a principle of sentencing. It is only a principle. What is essential is that the punitive element does not eclipse or jeopardise the other elements. As my noble friend has said, what may be punishment to one person would not be punishment to another, so the assessment of the court, based on information about the individual offender, is central to the implementation of this, and indeed its presentation. I welcome the discretion of the court.
Designating the primary purpose of, say, education as being punitive worries me immensely. Someone who has difficulty with reading and writing could usefully have the right sort of education. Their problems may stem from dyslexia, for instance. If the response is badged as punitive, that raises a lot of questions about reinforcing negative attitudes to education, and that may lie at the heart of the offender’s problems.
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Similarly, we have heard that supervision is required. To me, supervision is quite a positive term—or at least it is in most contexts—and I do not think that it should be presented as negative.
Curfews may be used as one response. However, is it right to confine an offender to his unhappy circumstances—the circumstances against which he is reacting and which led to his offence? The curfew can last up to 16 hours, which clearly would effectively preclude normal structured work in the absence of a magic carpet to get the person there and back. It would also preclude time for rehabilitation. I would not be surprised if someone faced with a very lengthy curfew stocked up on alcohol on his way back to his many hours of restraint, just to see him through it.
I have a related concern about full-time unpaid work and how this relates to jobseeker regulations. The Magistrates’ Association has briefed me, and no doubt other noble Lords, about its concerns on this. It has received a letter from the Minister for Employment, which indicates that the DWP would not expect to relax regulations for those doing unpaid work. The Magistrates’ Association says:
“Sentencers will want to be sure that if they sentence an unemployed offender to unpaid work, they will not unwittingly be responsible for the cessation of benefits and the removal of the offender’s only source of income”.
Therefore, there are issues around joining up between departments on which I hope the Minister will be able to give assurances in due course, as I did not give him proper notice of these points before today.
Is tagging punitive or is it, for some people, a badge of honour? Quite apart from reliability—and one needs only to think about that bossy voice on the sat-nav which tells you when you are on a motorway,
“Turn around now”—there are civil liberties considerations. Having been convicted does not mean that you completely forfeit these. Also, technology is not a substitute for one-to-one work. With regard to value for money, what proportion of the offenders within this cohort are likely to be at risk of breaching the conditions? Low-risk offenders for whom the company dealing with the technology will be paid probably present a very interesting cash cow.
The punitive elements are not to apply where there are “exceptional circumstances”, to use the words in the amendment. What might these be? The Government need to be clear about this. I hope that we can be told during the passage of the Bill that there will be guidance—and indeed what the guidance might say—either from the Government or from the Sentencing Council. Exceptional circumstances relating to the offender could include alcohol or drug dependency and other traits—to put it in shorthand—related to the offender’s personality. However, that applies to huge numbers of offenders and so by definition is not exceptional.
I shall table an amendment at the recommitment of these clauses. At the moment, I have it in mind to explore whether the term “exceptional” should be replaced by “particular”. What might exceptional circumstances be relating to the offence? Might it be a single mother who commits some petty shoplifting because she has run out of money to feed her family? In promoting this programme, the Prime Minister says that committing crime is always a choice. However, I suspect that some offenders, such as that single mother, may not agree.
I very much welcome the legislative recognition of restorative justice. I do not believe that to be an easy option; facing up to what you have done and to the people that you have done it to must be very difficult indeed. However, we all know that legislating for something and implementing it are very different. This is resource intensive and those resources must include training not only those who apply the programmes but perhaps even the judiciary, although I hesitate to suggest it. Perhaps explaining what is available to the judiciary would be a more delicate way of putting it. It will all take time. None of this is to argue against it but rather to urge the investment of effort and energy as well as money.
Much of the good work in this area and in other rehabilitative work comes from the third sector and from that sector working in partnership with others. It is obviously important to build on this. I would say—constructively, I hope, but bluntly—that payment-by-results contracts must not be a blunt, wholesale introduction of privatisation or of compulsory competitive tendering. Those contracts must not drive those small but very effective organisations, some of which are quite maverick and certainly unconventional, to the wall. Such organisations tend not to have the infrastructure or resources to take on the risks inherent in the bidding process that is in prospect, or indeed to bid as that in itself costs a lot of money.
I hope that the Minister will be able to reassure the House about the work that I know he has in mind, and indeed is pursuing, to develop mechanisms to ensure that commissioning supports the work rather than
threatening it. Could there be some sort of preferred bidder arrangement to allow an organisation to work up a scheme without going into competition? How are we to ensure that these smaller organisations may find a place in a programme undertaken by a larger organisation within a bigger scheme? The detail of implementation, perhaps under different management, is so important in all of this.
In thinking about how payment by results may operate in practice, it has also occurred to me to wonder how those practitioners who quietly, and often in a small way, do quite extraordinary rehabilitative work will feel about working not within the culture to which they are accustomed, and where they feel comfortable, but within the world of the big beasts of service provision. It is a question both of public service ethos and of that culture. I also wonder what a result is—this is not intended to be football jargon—and how one measures it. The question of pilots has been raised. One can pilot and pilot without coming to a decision. Perhaps if we find language that is about a slow roll-out with an opportunity for evaluation and assessment, that would fit better within what the Government are planning. It may indeed be payment by results but transparency is important too and that may not be available, given the application or non-application of freedom of information to the private sector.
The noble Lord, Lord Ramsbotham, expressed alarm about the prospects for the probation service. I share that alarm about what goes to the heart of its role and remit. “Service” is the right term; it is service to the community. On the probation service, I hope that the Minister can be clear about how and when decisions will be taken. Have they indeed been taken? Are they part of this legislation or parallel to it? They are clearly closely related. We know that it is proposed that certain services remain with the probation service. How will that impact with the capacity of the service to undertake other functions? It has been suggested that those working in the probation service should look at mutualising their offer, so the same issues arise as for the third sector.
We used to talk about the endless changes to the teaching profession and the fact that it was shaken up every year or so. It seems that the probation service has over the years suffered from a lot of shake-ups, so stability is to be aimed for. Sentencing policy must command public confidence, which is not the same as the approbation of certain parts of the media. The sentencing of individuals must command the confidence of those affected. The research undertaken recently by those two admirable organisations, Victim Support and Make Justice Work, tells us—I shall not take up more of the Committee’s time by quoting at any length—that victims’ attitudes are not significantly different from those of the general public; that the public have similar concerns and reparation holds a very strong appeal; and that punishment and the protection of the public should not be to the exclusion of rehabilitation and reform. Like everyone else, as has been said, what the public simply want, and what society wants is that the offender does not do it again. That is the objective that we must keep in mind.