My Lords, I tabled Amendment 1 because I submit that part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution on which the Government are now embarked. Indeed, “punitive” is a pejorative word which is a red herring to achieving that revolutionary purpose. What I am going to say will also cover amendments up to and including Amendment 11A, which are all connected with this part of the Bill.
When I was Chief Inspector of Prisons, I used to remind Home Secretaries that I dealt only with facts, and reported and commented on what I had actually seen, or not seen, during inspections and visits. Anything contrary to those facts that they heard, from officials or anyone else, was fudge; and woe betide them if they tried to make improvements based on fudge, because they would get fudged improvements. My successor described this far more elegantly than I did when she referred to “virtual prisons”, which is how they were described by officials to Ministers.
What I find most disturbing about what is now before us—and indeed what is not now before us such as the content of Amendments 14 and 20, which I hope we will reach before I have to leave for a long-standing engagement—is that so much of it is fudge, including parts of it announced by the Prime Minister in a speech on 22 October. I will list some of those because I hope that noble Lords will join me in being disturbed. There seems to be a supposition that the probation service is not tough enough, because it does not want to be. That is absolute nonsense. The probation service achieves very good results, as we have heard already. It is not that it does not want to do more. It cannot do more because it has not got the resources. In their own impact statement on the Bill, referring to the word “punitive”, which I think is thoroughly unfortunate, the Government said:
“Given a limit on the overall level of resources available for probation services, delivering a clear punitive element to every community order may cause the primarily rehabilitative requirements to be substituted for primarily punitive ones … There is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate of those offenders subject to community orders”.
We are told that it is all about the reoffending rate and about protecting the public by reducing reoffending. Why introduce something that is likely to damage that aim? In other words, the Government should not do it. I will not speak for my noble and learned friend Lord Woolf, who has already mentioned how offensive he found the presumption of giving judges direction about being punitive, when they already knew that that was their purpose in sentencing.
Secondly, in his letter to the noble Lord, Lord Beecham, and others on 7 November, the Minister said that,
“it would not be appropriate for the Government to provide a rigid definition of the circumstances that would qualify as exceptional: this can relate only to the facts of each individual case and is a decision for the court on the evidence before it”.
That is exactly what courts do now. So why do we need this? Why do we need to go chasing down? If Government cannot think of all these exceptions, Heaven knows, we cannot. It does not seem appropriate to include this in legislation.
Finally, in these hard economic times, the question of fines must be related to the ability to pay, as the noble Lord, Lord Touhig, has already said during proceedings on the Bill. Do the Government really think that more could be done to fine more people when they do not have the resources to pay the fines? What will be the result? I do not see that this has been thought through.
The Prime Minister also made two other fudged statements that I challenge in relation to the delivery of this proposal. He said:
“If you’re on a community sentence, you will be supervised”.
Who by and how? A quarter of a million people are currently under probation supervision and we know already that probation officers are extremely stretched in providing the supervision that they have to provide now. If cuts are to be made, we need to know how this supervision is to be carried out. In other words, we need to know the results of the probation consultation which was published to exactly the same list of stakeholders, as the Government said, as the community sentence consultation. If we are being asked to satisfy ourselves and say that we are satisfied with this supervision that the Prime Minister has announced will be available, it stands to reason that we must be able to examine the resources and come to a conclusion as to whether they will be enough, and give our advice based on our experience. Frankly, I find it totally extraordinary that this House should be asked to come to this sort of decision and conclusion without having all the facts before it.
In addition, going on from probation, we are told that payment by results is to be introduced into this process. Indeed, the Prime Minister said:
“By the end of 2015, I want to see payment by results spread right across rehabilitation”.
How on earth is that to happen if, at this present moment, the Secretary of State for Justice has suspended the publication of any data on the one trial at Peterborough, which is not strictly payment by results but social impact bonds, and when there cannot be any information for the next 18 months anyway because no prisoner will have been out for long enough to qualify for the two years needed to judge whether anything has worked? If the Secretary of State has also
suspended any work on the randomised control trial, which is the basis of the comparison that is meant to be made, how is anyone to come to any conclusions?
Although that is social impact bonds, two other pilots were being conducted by the probation service—one in Wales and one in Staffordshire and the West Midlands. I understand that the Secretary of State has paused both of them. So no work is going on into payment by results. Nobody knows whether it works. It is a jump into the unknown. It is costing millions, put in by people on good faith at the moment. If we do not know what is happening and are not to be given any indication how it happened, how can we pass any reasonable judgment on whether this is a sensible way to proceed?
I also question whether the Government have bothered to look seriously at the results of an interesting conference run by Make Justice Work. It had 30 practitioners dealing with payment by results. They came up with four principles that have to be observed and four comments on what is happening now. First, they said that the Ministry of Justice’s present plans appear not to allow sufficient time for necessary experimentation and fine-tuning. Secondly, they questioned how success would be measured. Thirdly, they said that there is huge difference in the market and that some of the smaller organisations do not have access to the capital to enable them to contribute what they have to. Finally, they asked who is going to evaluate and inspect it. In other words, there is a vast vacuum here. It worries me that we are being driven down a route and asked to take decisions based on this word “punitive”, whatever it means, when we are talking about rehabilitating offenders to protect the public.
Thinking in my bath last night, I felt that, in a way, the Government are treating this House with contempt. They are asking people who not only know a certain amount about these issues but who care very deeply about them and also care on behalf of the practitioners in the field. What worries me about them is that they do not feel that they are being listened to. They feel that masses of theories are coming out of the Ministry of Justice and no notice is being taken of the practitioners. It is extremely unwise to launch a case like this with such poor evidence and so much in the air. Too much depends on it and we cannot afford, and it would not be sensible, to go down this route. I beg to move.
4.15 pm