My Lords, I beg to move that the House do now resolve itself into Committee on the Bill.
Amendment to the Motion
Moved by Lord Ramsbotham
Leave from “House” to the end and insert “declines to consider the Bill in Committee until Her Majesty’s Government have produced a revised impact assessment on the Bill which includes the supporting evidence for the cost estimate given of around £25 million per year associated with breach of licence and supervision conditions for short sentenced offenders and an explanation for the decision to regard key assumptions, sensitivities and risks as not applicable.”
My Lords, I wonder whether noble Lords might leave the Chamber quietly and whether those passing in front of the noble Lord, Lord Ramsbotham, which is something we do not normally do, might do so even more inconspicuously. I have given the noble Lord the opportunity to hesitate for a moment as he has some important matters to set out in explaining the purpose of tabling the Motion and what he seeks from the Minister in response.
I suspect that I am not alone in being in something of a quandary about the Bill. I entirely support the main intent behind it, which is to reduce the appalling reconviction rate that is an indictment of our offender management system, particularly as regards those awarded short prison sentences who have the highest reconviction rate and are responsible for so many crimes on release. For many years, I have campaigned for many of the measures that it contains, so why should I be calling on the Government to slow down their headlong rush towards a goal that I share? I do so for two reasons, both based on personal experience. I spent 41 years in the Army before I became Chief Inspector of Prisons, a number of them in Whitehall. My memories of those days were revived today when I read the obituary in the
Times of Sir Patrick Nairne, who was a most distinguished civil servant as well as a hugely cultured and civilised man. From him, and others like him, I learnt that when a paper or proposal was intended to be moved towards the Secretary of State, it should be put first to the Army board, but only after it has been properly researched and costed, which research included careful examination of all the consequences, intended or otherwise, that could be identified. Only after such proposals had gone through the Army board, the Chiefs of Staff and then Ministers, would they reach the Secretary of State, and certainly not the outside world.
When I heard about this Bill in the gracious Speech on
My second experience has been over the past 18 years, when I have been associated with the offender management system itself. When you get down to the guts of offender management, you find that it is all about enabling someone or some people to influence someone else to live a useful and law-abiding, as opposed to a useless and law-breaking, life—nothing more and nothing less. I have observed with considerable dismay the relentless advance of political and bureaucratic interference, and the time and ability of those concerned to do that, with the inevitable result that the reconviction rate has increased. The old Prison Commission, before it was abolished in 1962, was run from a house in Eccleston Square, with a staff of 128 people without computers. Now, admittedly with double the number of prisoners, the computer-assisted National Offender Management Service has a cast of more than 2,000.
Throughout the time that I have watched the system at work, I have been deeply humbled and impressed by the incredible dedication and drive of countless thousands of people working in and for the Prison Service and probation service, who have come up with successful innovation after successful innovation only to see them killed rather than exploited by the bureaucratic system. If only the management system had the wit to monitor what was best and bring it into common practice, I believe that it could introduce cost-effective treatment of offenders in every possible condition.
That has been the system until now but I am concerned about what is included in the Bill, particularly in the White Paper. It is unfortunate that we are discussing the Bill before the White Paper because the latter contains all sorts of ideas and proposals, none of which has been tried or costed, on which the Bill is based. Until now, no one has pretended that the market provides a better solution for enabling people to live useful and law-abiding lives than other people, and there is no evidence that it does so. The purpose of my amendment is to ask the Government to take time and give us time to think all this through. There has, so far, been no pre-legislative scrutiny of the Bill. It has all been rushed through at breakneck speed, we have heard no reason why the Government seem determined to rush it all through, and we have had no explanation or answer to all the questions that were asked at Second Reading. We are, therefore, coming into Committee ill informed.
I remind the House of some of the questions that I asked at Second Reading but which remain unanswered. They are fundamental to the protection of the public, which is what rehabilitation is all about. What factors were taken into account in estimating that there would be a cost of only £27 million a year associated with the breach of licence and supervision conditions for short-sentence prisoners, which is part of the amendment I have tabled today? How many offenders were assessed as likely to breach? Were any facts, and therefore costs, deliberately excluded from the assessment? What factors did the Government consider in estimating that there might be additional police costs of only £5 million a year? What is the Government’s estimate of the cost of providing a rehabilitative service to offenders released from custodial sentences of less than 12 months, and how much of that are they looking to recover through competition? What about the cost of extending rehabilitative services anyway? There is no mention of any assessment of the ability of the private sector—which failed so spectacularly to provide security staff for the Olympic Games—to provide trained and accredited staff who can be relied upon to provide the regular contact needed with offenders whose chaotic and dysfunctional lifestyles are described in the White Paper.
What about the cost of the proposed reorganisation of the probation service? What about the assessment of the cost of training and accrediting non-public sector responsible officers? What about the analysis of the timeframe or content of the results for which providers will be paid? What about the estimate of new IT costs? What about how reoffending will be measured? What about how many additional short sentences are likely to be awarded or the impact of the new provision on either prisoners or the supervision of those awarded community sentences? Finally, how do the Government think that the introduction of the market will improve existing arrangements where the probation service is involved in several essential local partnerships to do with the rehabilitation of offenders?
That is a considerable catalogue of uncertainty. I am concerned that if the public look at all this objectively they will, quite rightly, wonder how it was that the House of Lords, which is responsible for scrutinising Bills, allowed something to go through when it had so little information on which to base its judgment. That is in danger of dragging not just this House but the whole parliamentary system into disrepute. I question the need to proceed at such an absolutely headlong pace. I was told last night that one of the reasons for pushing ahead with the Bill is to encourage funding by illustrating what needs to be funded. I was also told that, instead of payment by results referring to individuals it will, in future, refer to what are called cohorts of individuals. A cohort of offenders will mean the group of people for whom a particular provider is responsible. The result will be a reduction in the reoffending rate in that group from a figure yet to be determined, and a reduction in the number of crimes that they are alleged not to have committed. When I questioned the Secretary of State about the word “reoffending”, he admitted that he actually meant “reconviction” because that is the only thing that you can measure.
We are therefore going into something totally imprecise. We do not know over what period this judgment will be made. Nor do we know how provision will be made for the achievement of the natural list of providers, in both the private and voluntary sectors, all around the country, that can provide consistent management, which is what these people above all provide.
I realise that it is very unusual to propose an amendment suggesting that the Bill be withdrawn at this stage. I do not want to press any further with this, other than to ask the Minister to agree to provide answers to all these questions and an explanation of why it is necessary for the House to press ahead in such an ill informed way before we proceed. We owe it to the millions of members of the public, whom it is the duty of the Government to protect, to ensure that any Bill affecting their protection is subjected to the best possible scrutiny before it is released from this place. Therefore, if we are not to be enabled to do this, the House has a right to know why, because it will be called to account by the public. I beg to move.
My Lords, I strongly sympathise with the noble Lord’s observations and share his strictures on the substance of the proposals that we are to debate. I must, however, thank the Minister for arranging a meeting yesterday, and I thank the Secretary of State and the Under-Secretary of State in the House of Commons for attending that meeting. However, in the nature of things, it lasted only an hour and we were able to get through only three clauses of the Bill. That underlines the difficulties that your Lordships will face in debating adequately the complex proposals before us.
The noble Lord, Lord Ramsbotham, referred to the inadequacies of the impact analysis, which, I have to say, was exceptionally flimsy, even by the standards of this Government. A huge area of public policy, the future of the probation service, on which much of the Bill depends, is not actually included in the Bill.
Amendments in my name and in the names of other noble Lords will raise that issue, but it is not in the Bill at all.
It is only two weeks since Second Reading and your Lordships’ House has been in session for only six days since then. Given the recess, it has been difficult enough for Members of the House to consider and draft amendments without the benefit of the kind of information to which the noble Lord referred. He has itemised many of the relevant questions. I, too, raised questions, as did the noble Baroness, Lady Linklater, and the noble Lord, Lord Dholakia. I do not expect the Minister to occupy his Whitsun Recess by replying personally to all these matters but the department should surely have taken steps to respond to those questions and allow the debates that will take place today and next week to be better informed. It is unfortunate that that has not been the case and I hope that the Minister will feel able to assure the noble Lord that answers will be given. It is not good enough for them merely to arise in the context of today’s Committee debate. We ought to have the answers laid in the Library in a consolidated form and available for consideration before we reach Report in some three weeks’ time. I hope that the Minister can build on the good work he did yesterday, rather than the omissions of the department, in dealing with these requests.
My Lords, a lot of what the noble Lord, Lord Ramsbotham, said was very familiar, because of course it was also his Second Reading speech. I make no complaint, but I say to the Opposition that they may be on this side of the Box one day. If using this kind of amendment to prevent a Committee stage proceeding were to become too much of a habit, it would be very easy to gum up government business.
I associate myself with the noble Lord’s words about Sir Patrick Nairne, because I was also a Whitehall warrior for quite a long time. I worked with Sir Patrick in the 1970s. My experience of both Whitehall and Westminster makes me less than apologetic about our approach. Governments are always faced with attacks for having no policy and being too slow, or for having too many ideas and rushing Parliament. I would rather we had too many ideas.
The truth is that successive Governments have tried to tackle the challenge of rehabilitating offenders. We have put forward our proposals for scrutiny and I am old fashioned enough to believe that that is exactly what the Committee stage of a Bill is for. I look forward to the next eight hours or so today and to the next Committee day for the House to do its proper job of scrutiny and questioning, and I will do my best to give answers.
On the specifics of the impact assessment, I agree to take another look at it and see where we can update it for the benefit of the House. I will bring that impact assessment back before the Bill completes its stages in this House. I hope that will be in time for Report. However, as noble Lords on the other Benches who went through similar exercises will know, we have to hold back certain things for commercial reasons. We are about to enter negotiations to get the best deal for the taxpayer and therefore do not wish to reveal our entire hand in advance. I will update the impact assessment as much as I can but I suggest that we now get on with the work of the day and the work of this House, which is the detailed scrutiny of the Bill.
My Lords, I am grateful to the Minister and to the noble Lord, Lord Beecham, for what they have said. I am particularly grateful for the Minister’s reassurance that he will look at the impact assessment. That is hugely important not only for us but for the officials and members of the services who will carry out the work. Can the Minister say anything about the unanswered questions which I and the noble Lord, Lord Beecham, mentioned?
My Lords, that is what a Committee stage is for. I will try to answer as many of those questions as I can, but after the noble Lord’s experiences in the military, in Whitehall, in Parliament and in the various services, he will know that not all the questions he poses have an instant answer available. I have never hidden the fact that we are being innovative in what we are doing, and because of that, there is no track record to refer to. However, that does not resile from the fact that these are worthwhile proposals to be considered, and I am very willing, during the course of the examination of the Bill, to try to be as full in my answers as I can.
My Lords, I am grateful to the Minister for that because it was precisely what I was hoping he would say. As I said, my quandary about the Bill is that while one approves entirely of its intent, one is concerned about the lack of detail. If we can elicit that detail during the Committee stage, we will be able to achieve our purpose. I personally am very keen to get on with the debate as quickly as possible. I apologise for taking some time but it was important to raise the issues of the lack of pre-legislative scrutiny and the speed. In the mean time, I beg leave to withdraw the amendment.
Clause 1 : Reduction of cases in which prisoners released unconditionally
Moved by Lord Ponsonby of Shulbrede
1: Clause 1, page 1, line 7, leave out “1 day” and insert “less than 29 days”
My Lords, in moving Amendment 1, I shall also address Amendments 3, 5 and, in passing, Amendment 3A. Amendments 1 and 3 are designed to give greater flexibility to a sentencing court. As the Bill stands, everyone sentenced to a period of custody of one year or less will be given a period of 12 months’ supervision from their day of release. This, of course, is something that we welcome as a useful addition to the armoury of the probation service. However, there will be cases where this period of supervision is excessive, disproportionate and unnecessary. A court imposing a short custodial sentence of, say, 29 days or fewer will be well aware of the alternatives available—namely, a community order, which could itself have been more punitive and more rehabilitative. If, nevertheless, the court decides on a short custodial sentence, I would argue that it can be safely assumed that no rehabilitative action was required and therefore it should not be unnecessarily imposed on the offender.
Amendment 5 addresses the same point and is also designed to reduce the burden on the probation service. It provides that a court can direct, on advice from the probation service, that there need be no period of supervision. I should say that this would be in exceptional cases. The sort of cases that I am thinking about relate to the one-off nature of an offence where the offender is of previous good character, there were physical or mental health issues, or the offender is extremely old. Another factor might be the length of time that has elapsed between the date of the offence and the date of conviction where there had been no offending during the interim period.
The purpose of the amendments is to give the courts greater flexibility and prevent disproportionate and unnecessary supervision. As we heard from the noble Lord, Lord Ramsbotham, in the previous debate, yesterday we were fortunate enough to meet the Justice Secretary. The argument he advanced in response to these amendments was that there needs to be a stable cohort of offenders who are to be managed by the private probation providers. He went on to say that the new group of offenders who are to receive this new supervision need to be a stable group so that a proper assessment of reoffending among this group can be done on a year-on-year basis. The purpose is to make an accurate calculation of the payment by results of the private contractors and, most importantly, to assess the success or otherwise of the additional supervision to be provided.
I completely understand that argument. In my professional life I have done many similar calculations myself and I know it is very useful to have a stable cohort when making those calculations. But I would argue through these amendments that that simplicity and clarity of calculation should not be set above the interests of justice of the offenders themselves and, however low the level of supervision which will be imposed on these people, there will still be an additional cost. In the interests of justice for the offenders and a reduction in costs, I move these amendments.
I turn briefly to Amendment 3A in the name of my noble friend Lord Beecham. A number of amendments address the transition of offenders from under 18 to over 18. The object of all these amendments is to try to maximise the input of the YOT service and to work flexibly with the probation service. This issue may be addressed in Clause 6 (4), which will introduce new Section 106B (4) (b), and may well cover the points raised in this amendment. Nevertheless, I hope the noble Lord will address this point about maximising flexibility for the YOT service and enhancing its ability to work constructively with the private probation providers. I beg to move.
My Lords, I am very grateful to the noble Lord, Lord Ponsonby, for the way in which he moved that amendment. During Second Reading, the noble Lord, Lord Ponsonby, told us about his experiences as a sitting magistrate and the frustration that magistrates often feel when they see offenders with long histories of offending coming before the court time and again. The noble Lord told us how magistrates genuinely feel that they use custody as a last resort. In all the discussions that I have had with anybody who has had an experience of the magistracy, that emphasis has been made. The Government share the frustration of the magistracy. They seem to be almost forced into successive custodial terms because of the cycle of repeat offending. That is exactly why we have brought forward the Bill. It is why Clause 1 extends release on licence and why Clause 2 tops up that licence with additional supervision.
The Government believe that the only way we can break the high level of reoffending among this group of offenders is to end the current position whereby they walk out of prison after half of their sentence with no support and no incentives to seek support to change. That is why Clause 1 applies licensing conditions to all custodial sentences of more than one day. I will explain why in Clause 1 licences apply to a sentence of more than one day, before I turn to the Amendment 1 of the noble Lord, Lord Ponsonby. First, there is a practical consideration. The headline sentence imposed by the court is, as the House knows, halved. It is not possible, nor practical, to half a half day of custody. It is also the case, as the noble Lord, Lord Ponsonby, will be aware, that there are some minor cases in which the court decides that an offender could serve their sentence by spending a day sitting in the court. So, for practical purposes and to retain the power of the court to sentence to a day in court, we applied the licence and the new top-ups of this supervision to sentences of more than one day.
Amendment 1 would raise that minimum period to sentences of 29 days or more. In other words, a sentence of 28 days or less would result in unconditional release with no licence conditions, no top-up supervision, no power to recall the offender and no way to rehabilitate the offender other than the hope that they volunteer for support. A significant number of offenders who the noble Lord and his fellow magistrates sentence to custody receive a sentence of 28 days or less. The latest statistics from 2012 suggest that around 13,300 adult offenders received such a sentence. The reason why many of those offenders receive sentences of 28 days or less is because their history of offending makes the offence more serious, therefore justifying a custodial sentence. It is exactly because these offenders have failed to break their cycle of offending that they received the short custodial sentence in the first place, and it is because they have been released from short sentences with no support that they continue to offend and receive yet more short prison sentences. This is exactly the group that we should be targeting for supervision. It is a group of offenders for whom we should do everything possible to help them face up to the issues that have caused them to offend. Some of them will reoffend when under supervision and some will not comply with the licensed conditions, but that has to be better than the current position, where they are simply imprisoned and released, only to reoffend and be imprisoned again.
I understand why the noble Lord tabled this amendment but, given that it will not provide the courts with more discretion and will leave a significant number of offenders without support, I hope that he would consider withdrawing it. As the Secretary of State explained at our meeting last night, the intention is to have flexibility and common sense in terms of the treatment that is applied during that period of supervision. By the way, that was not a secret meeting—all noble Lords were invited and I was very grateful to those who did come along to hear him. At the very beginning of this debate, I would also make the point that we must not think of the period of supervision as punishment; it is a period of help and support, which we hope will help people to avoid reoffending.
I now turn to Amendments 3 and 5, in the name of the noble Lord, Lord Ponsonby. These relate to the top-up supervision covered by Clause 2, which will introduce a new Section 256AA, applying supervision to all offenders with a sentence of,
“more than 1 day but less than 2 years”.
That means that the period of licence will be topped up with additional supervision so that the two, taken together, amount to 12 months. Amendment 3 essentially follows from Amendment 1. If Amendment 1 was adopted, those serving 28 days or fewer would have no licence, and Amendment 3 would mean they would have no top-up supervision either. I have already said why the Government disagree with Amendment 1, and it follows that we would not support Amendment 3 for the same reason. It is a small point, and I do not want to labour it, but I assume that the noble Lord, in Amendment 3, meant to refer to more than 28 rather than 27 days, since his Amendment 1 related to sentences of less than 29 days—that is, 28 days or fewer. In other words, a sentence of 28 days would fall between the two.
Amendment 3A, in the name of the noble Lord, Lord Beecham, seeks to amend the categories of offenders who receive top-up supervision under Clause 2. Amendment 3A would exempt offenders sentenced in the youth court when they were under 18 from receiving top-up supervision, even if they were 18 when released from custody. I note that the amendment does not seek to extend this exemption to those sentenced when under 18 in the Crown Court. I understand the concerns, which my noble friend Lady Linklater has also raised, and we will return in later amendments to the question of supervision for those released from custody who have reached 18. However, I would say now that the Government believe that our commitment to provide 12-month supervision should apply to all those aged 18 and over, when they reach the point when they would be released from custody. We, of course, recognise that young offenders who have just turned 18 can have different needs from older, adult offenders, and we will expect providers also to recognise this difference and to tailor their supervision to the particular needs of this group.
Finally, I turn to Amendment 5, the last amendment in this group. The effect of this amendment, as the noble Lord, Lord Ponsonby, explained, is to give the court the discretion to order that top-up supervision might not apply. I understand the noble Lord’s thinking here and why he has tabled the amendment. It is true that there will be offenders who will not need significant programmes to address their offending behaviour because they are unlikely to reoffend. The reoffending rates suggest, however, that a significant number of people are likely to reoffend and it is often difficult to anticipate who those offenders are. With the greatest respect to noble Lords, the sentencing court is not always the best position from which to determine what, if any, supervision an offender is likely to need. Offenders who need intensive supervision or specific programmes do not need to receive these services. I return to the point I made earlier that this is not a tunnel-vision approach and a clanking of a machine. We are making sure that 12 months of supervision is available but we are assuming a good degree of common sense about the intensity of that supervision, even as the 12 months progresses.
We believe that by bringing all offenders within the compass of the Bill but by giving providers a good deal of flexibility in application we will avoid some of the problems that these amendments imply. The provision in this Bill determines only the overall period in which supervision will be available. It does not specify what that supervision should involve or how intensive it should be. That will be for the providers to decide, working within the framework set by this Bill. That is where we give providers the room to innovate, to see what works and, crucially, to pay for what does work. Applying top-up supervision to all offenders and then setting the appropriate level of supervision is a much more practical approach than deciding at the time of the sentence not to supervise an offender only to realise too late that they do pose a risk of offending and would benefit from supervision. I hope in the light of these explanations that the noble Lord will agree to withdraw his amendment.
I thank the noble Lord for those answers. He said in addressing Amendments 1, 3 and 5 that the supervision period is not a punishment; it is a support for the offender to help them get back and stay on the straight and narrow. That is true but it is nevertheless a court order and there will still be the scope of breaching the supervision period, which is a very important factor.
Amendment 5, in particular, sought to exempt certain individuals, and that decision would be the decision of the court but with the advice of the probation service. Surely the probation service, which is very well experienced in these matters, together with a bench of magistrates or justices or district judges would be in a position to see the exceptional case where it was not necessary to have a period of supervision.
Nevertheless, I will reflect on what the noble Lord has said and I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Clause 1 agreed.
Moved by Baroness Linklater of Butterstone
2: After Clause 1, insert the following new Clause—
“Provision of services for voluntary rehabilitation of prisoners
The Secretary of State may make contractual or other arrangements with any other person for the provision of services for the voluntary rehabilitation of prisoners serving sentences which are for terms of less than 12 months.”
My amendment is for a proposed new clause to the Bill. The Minister will be aware of the generally very warm welcome expressed for the Government’s move to include rehabilitative support for offenders in the community who have served short sentences. This group of prisoners has hitherto had no supervision. These sentences may range from a few days to less than 12 months, for which no support has been available. Support is desirable and very necessary, as this group of ex-offenders has, as the Minister said, the highest reoffending rates: rates that are greater than for almost any other group in the prison system.
The issue is how the support is best to be delivered. What is practical, desirable and most likely to succeed with this particular group of offenders is what matters. The typical profile of such people is that they have chaotic lives, often have drug, alcohol or mental health issues, have poor or virtually no education after the age of 14 and were probably jobless before coming into prison. Everything else being equal, they would probably have been better served with a community sentence, although I accept that is for another debate. They will not be a danger to society and are in need of basic support to help change their lives around. Their prison experience will have done nothing to prepare them for a law-abiding life because it is not required to do so. Typically, these people will sleep their way through their sentence.
It is important that what is offered to them on release is relevant, proportionate and, above all, flexible if it is to succeed. It requires skill on the part of the mentor or deliverer of probation services, and flexibility is the key. If it is tailored to the individual needs of the ex-prisoner, it will have a chance of success. However, if there is an additional statutory fixed period of one year’s supervision as well as the licence period, it will be perceived as disproportionate and unfair, and the risk of breach and recall to custody becomes very real. It would be a terrible irony if a provision that is intended to turn people’s lives around were to produce a rise in the prison population, which is something we want to avoid and completely negates the power and potential that the supervisory period offers. An extreme example to prove—in the sense of “to demonstrate”—this rule could be that someone given a few days in custody for, say, a road traffic offence could then find himself with an additional statutory 12 months’ supervision in the community, which is way out of kilter with the nature of the offence. If he defaults and is recalled to prison for 14 days, that would be much longer than the original sentence.
Instead, the Government should follow the example of successful mentoring schemes that already exist around the country, such as the pilot in Peterborough that I have visited, where the scheme is voluntary and service providers can exercise their own discretion in the management of the offender. Custody is a very last resort. These mentoring schemes are delivering very promising results, and I hope that the Government will look closely at what they are doing because I believe they show the way forward, which is an improvement on the rigid year’s supervision currently proposed. Rigid rules of one year’s supervision might have a simple appeal, but what matters is what works, given the nature of the offences and the needs of the offenders, and here we have an example of what works. This means that we do not have to try to reinvent the wheel.
Desistence—a favourite word of criminologists, which just means stopping reoffending, which is the subject of a great deal of research, debate and everything else—will occur only if the individual wants to stop offending, and the risk of breach is always high with this group. Already, 6% are in prison for breach following the lengthening of licence periods. A voluntary relationship based on trust is what will succeed with this very low-level group rather than long, fixed periods of supervision, however well intentioned.
My second, probing, amendment relates to juvenile and young adult offenders and their post-release supervision. The Minister will be aware that there is real concern among the key agencies that work with this group of offenders, notably the Youth Justice Board, that those who are under 18 when they start a sentence set by the youth court should continue to be managed under the auspices of the YJB until they have completed their sentence. This means that the YOTs—youth offending teams—continue with the management of the young offenders rather than transferring them to different, adult supervision by the new probation providers.
Adolescence and the transition to adulthood is well known for being testing both for young people and those responsible for their management. We have all been through it, and I for one am grateful that I will never have to go through being a teenager again. Life can be particularly difficult for young people who are in trouble with the law, and it is not rocket science to understand that it requires people with particular skills and experience to deal with those issues. The YJB is the pre-eminent body to oversee their arrangements. Many noble Lords will remember the battle that we had to explain the YJB’s role exactly and to protect it from going on to the bonfire of the quangos, precisely because its work is so valuable and of such a high quality.
While the YJB is the pre-eminent body to oversee the arrangements, the youth offending teams are the professionals on the ground to manage them. I therefore seek assurance from the Minister that the YOTs will be able to continue working with these young offenders until they are 21 if necessary, thereby not breaking off the crucial work that is being done with them. Account has to be taken of different levels of maturity, and it is a well-established principle in our justice system that people sentenced for offences committed as juveniles should not be subject to the same expectations and demands as adult offenders. The evidence of the excellent work of the T2A—transition to adulthood—programmes has shown that a young adult’s developmental maturity is at least as important as chronological age and that variations might be directly related to offending and the ability to comply with statutory requirements such as community sentences or licence conditions. This is supported by work commissioned by the Barrow Cadbury Trust at Birmingham University.
Impressively, the Sentencing Council and the CPS have produced some guidelines on the relevance of maturity in sentencing young people, and this has recently been extended to adults. The best practice in the area has been developed by the CPS, the Sentencing Council, HM Inspectorate of Probation, the probation service, the Riots Communities and Victims Panel and the YJB. This is surely a very powerful background to the approach of working with young people in this position. It is important, therefore, that the Government clarify that the probation service’s responsibilities under the Crime and Disorder Act will indeed continue for the management of this group, who can rightly be regarded as high risk.
I am pressing these questions because there is concern that children who turn 18 while in custody may still be treated as adults in terms of the length and type of support on release. Hence my secondary amendments, which I hope I can include at this moment because they are relevant, to delete Clauses 4 and 6, which come a little later on in the list. I would welcome clarity on this from the Minister. It is not clear whether this group will indeed still be regarded as young people for the purposes of their management. If not, how will it work? Will any discretion exist as to who will continue the supervision? If so, who will make that decision? This is very important, as it is well known that the levels of support and supervision drop dramatically in the adult system, so transitional arrangements and communication between agencies will always be critical.
Ultimately, we all want the best appropriate management of this challenging group. I am sure that all of us share in this wholeheartedly. This means that if they are able to desist, which means taking personal responsibility, their offending will drop. I look forward to the Minister’s reply and beg to move.
I support Amendment 4 in the name of the noble Baroness, Lady Linklater, with the suggestion that “18” should be substituted by “21” in order to bring in this vital group. I thoroughly agree with her about the work being done by the Transition to Adulthood Alliance. Further than that, the probation service was the first to admit that it has not been very good at dealing with the 18-to-21 age group in the recent past, with the exception of three very good programmes: the intensive alternative custody programmes in Manchester, South Yorkshire and London, which have been mentioned before in this House. I am not sure that the Youth Justice Board for England and Wales, which was very happy to take on the responsibility for 18-to-21s in custody is quite so happy having them under the youth offending teams, which are very much geared to the under-18s. On the other hand, I know that the Youth Justice Board for England and Wales is more than happy to work closely with the probation service in developing these adult services. I therefore hope that, in considering the rehabilitation of this vulnerable and impressionable group, the Minister will agree that the probation service experience in Manchester should be exploited and spread further. I know that it is poised to make an advance on where it had already reached.
My Lords, may I add one thing what my noble friend Lord Ramsbotham has said, as well as supporting both the amendments? Very many of the young people who will be in custody or will have gone through this process will also have been in care with the local authorities. It is therefore even more important that special attention is being given to them above the age of 18. I particularly support that aspect of the proposals.
My Lords, I join the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, in supporting the amendments of the noble Baroness, Lady Linklater. She has a strong point in Amendment 2 on the need to avoid rigidity in the system, to look at particular individuals’ needs and to ensure that supervision is proportionate and flexible according to the circumstances of the case. There is some danger, under the Bill’s present formulation, that that will be rather more difficult than it should be.
I am also particularly enthusiastic about Amendment 4. It seems that continuity is critical here, particularly as the people we are looking at are themselves in a state of transition. It does not seem helpful that those who supervise and assist such people should change in the course of that transition. Of course, there has to be some cut-off point, and the age of 21 is reasonable. I hope that the Minister will look sympathetically at that. It also strikes me that it may be a more cost-effective way of dealing with offenders in that category, because you do not have the process of handing over and entering into separate contractual arrangements with a different organisation and all the rest of it when you have already got a provider with a budget and contract which should be capable of being extended if required under the circumstances of the case.
I hope that the noble Lord will undertake to have a look at this and come back on Report. It seems sensible and quite consistent with the approach that the Government seek to pursue.
My Lords, I am grateful for the debate that my noble friend has stimulated. She is absolutely right that this group of people is the most challenging in terms of the prolific number of offences for which they are responsible. In many ways, this can be a key period in their lives and can determine whether they live a life of crime or become constructive members of society. I also take the point made by the noble Baroness, Lady Howe. For me, there is a sense of shame that so many who have been in our care end up in our criminal justice system. We must go into that more deeply and we shall try to do so, in part, through the Children and Families Bill and other legislation.
What gives me some optimism that we shall be able to make this new legislation work is that there are good examples: the Manchester scheme that the noble Lord, Lord Ramsbotham, referred to and the mentoring in Peterborough. This was raised in our discussion yesterday and I want to explore further the mentoring by those who have committed earlier misdemeanours but now play a positive role in life. I remember going to Stafford and meeting a mentor who had been heavily drug dependent, but he had cleaned himself up and was now having a really good effect on young people through the advice that he was giving them.
The noble Lord, Lord Ponsonby, expressed the dilemma at Second Reading that persistent offenders end up being given short sentences that send them into a prison environment. I fully accept the point made by the noble Baroness, Lady Linklater, that that puts them into a completely ill-suited environment in terms of rehabilitation. That is one reason why part of what we are trying to develop is to start rehabilitation in prison, so that they get used to the world of work and address various failings such as literacy or drug or alcohol dependency. One of the first things I was told when I started visiting prisons and youth offending centres was, “We just start to have some effect and then we lose them”. I repeat that the period of 12 months’ supervision is not punishment but the continuation of help.
My noble friend said that this amendment is designed to provide a power for the Secretary of State to contract the rehabilitation services when an offender volunteers for such programmes. I have already said why we think that both licence and top-up supervision should be applied to all offenders. I understand the point that often the most effective rehabilitation occurs when the offender decides that they want to change. However, the simple fact is that many offenders will not volunteer for rehabilitation programmes. Those who initially volunteer may change their mind when more challenging questions are asked of them, or when they simply become bored of what they may decide is undue hassle. Offenders who fail to comply with the programmes will simply withdraw their consent to avoid any consequences of failing to undertake the programme they initially signed up for.
In the Bill we are ensuring that all offenders have the opportunity to receive help and assistance on release from custody. We are saying to offenders, “Here is your chance to rehabilitate yourself and turn your life around, but you cannot walk away from this and expect no consequence if you do”. That is why the licence and top-up supervision is mandatory, but also flexible, so that providers can tailor the type of support and intensity that is needed for each offender.
I have taken time to explain that we think licence and supervision should be mandatory, but let me deal very quickly with the powers of the Secretary of State to contract for voluntary-based rehabilitation services. The fact is that the Secretary of State already has the power, and nothing in the Bill restricts that power, even though our intention, in the vast majority of cases, is to make licences and top-up supervision mandatory. In short, therefore, the Secretary of State does not need this power, and I ask my noble friend to withdraw her amendment.
Amendment 4, on the top-up to 21 year-olds, also takes my noble friend’s application of top-up supervision. I understand that the intention of Amendment 2 is to ensure that offenders aged under 21 on release from custody will serve a period on licence but not be subject to top-up supervision. I understand my noble friend’s argument, but I disagree with it. The Government believe that all those aged 18 when released from custody should get the same level of supervision and support. The amendment would mean that an offender sentenced to two months’ imprisonment when aged 20 would serve only half their sentence in custody and have only a month of licensed supervision. Yet, as I said at the beginning, these young offenders have some of the highest reoffending rate of any group.
Our proposals in the Bill will ensure that offenders who are 18 when released from custody get 12 months of supervision in the community. I stress again that the type and level of supervision can be tailored to the young person’s needs. I expect that providers will develop specific programmes for this age group, offering a real chance to make a difference to the needs of young offenders. The Government see this as an opportunity for real support for young offenders, not as something that they should be excluded from.
I will clarify the point that my noble friend Lord Ramsbotham made about the crossover from YOT supervision to probation supervision. The Bill makes it clear that this will be a matter of judgment at that time, and of consultation to make sure that what is done is most effective. If the most effective course is to retain the YOT supervision, that supervision will continue. It fits in with what I keep on emphasising: this is not, to take the criticism of the noble Lord, Lord Beecham, an exercise in rigidity. It is quite the opposite. It builds in the most flexible of approaches to try to tailor to the needs of the individual the kind of help and support they are going to get. However, I disagree with my noble friend, although, goodness knows, I am in awe of his experience and expertise in this area. If saying to offenders in this age group, “For the next 12 months you are going to try to mend your ways” is somehow an unfair burden on them by society, I am willing to take that risk.
I suspect that if we can put this into place, we will start having an impact on this age group. As I have said, one of the lessons that we have to learn from the experience of this age group is that without this help, they get out of our control, become repeat offenders, going into the adult criminal justice system and the prison system with disastrous results for both themselves and their society. Therefore, I do not think that this long period of 12 months’ supervision ahead of them is somehow a terrible burden on these young people. For a significant number of them, it may be the best thing that ever happens in their lives.
I hope that my noble friend will consider withdrawing her amendment. However, I will carefully read Hansard and look at our proposals for this age group. I agree with much of what noble Lords have said about offenders in this age group; if we get it right for them, there will be enormous benefits in terms of the impact on future criminal behaviour.
As I said, I am willing to look at the arguments and think about this further, but I think we have got the balance right. I hope that the noble Baroness will consider the arguments that I have deployed. In the mean time, I hope that she will be willing to withdraw the amendment.
Accepting for a moment, for the purposes of argument, the noble Lord’s assurance—and of course I do accept his assurance—that there is the option of transition not being automatic, who decides in the end what should happen? Does this have to be agreed between the YOT and the probation service, or does it go back to the court? Where would a decision be made if there is a disagreement between the existing provider and the future providers?
That is one of the things that I want to think about. I hope that the two bodies concerned would make a practical decision about the needs of the individual, but as the noble Lord, Lord Beecham, said, if that was not available, who would be the judge? Would that have to go back to court? I will think about that, and if there is a gap we will fill it.
I thank my noble friend the Minister for his very thoughtful and detailed response. I am particularly grateful to hear him say, as I understand it, that there will be real flexibility based on the needs of the young people and on whether they can actually continue with the YJB, YOTs and others while they serve out their time, as it were. That is a very welcome thing to have heard.
However, I must also say that while the Minister talks about flexibility within it, the year’s supervision is a fixed time. I have heard him say it. To have the long arm of the law wound around you for a year is a very long time for a minor offence. I was arguing essentially for flexibility there, not rigidity.
I also thank the other noble Lords who contributed. I thank the noble Lord, Lord Beecham, for asking my question again, which is a very important question to hear the answer to, and the noble Lords, Lord Ponsonby and Lord Ramsbotham, and the noble Baroness, Lady Howe, for their very helpful remarks.
I will, of course, now think about everything that I have heard and everything that has been said before we come to Report. In the mean time, I beg leave to withdraw my amendment.
Amendment 2 withdrawn.
Clause 2 : Supervision after end of sentence
Amendments 3 to 5 not moved.
Moved by Lord Bradley
6: Clause 2, page 2, line 37, at end insert—
“(7A) The supervisor must explain to the offender in language appropriate to his individual intellectual ability and understanding—
(a) the effect of the supervision requirements, and
(b) the effects of non-compliance with any requirement with which the offender is required to comply.”
Amendment 6 is in my name and that of the noble Lord, Lord Ramsbotham. It requires the supervising officer to explain the implications of licence conditions and the effects of non-compliance in language that is appropriate to the offender’s intellectual ability. As the Minister explained, Clauses 1 and 2 extend statutory monitoring and supervision to offenders serving short sentences for a mandatory period of up to 12 months. The introduction of a new period of statutory supervision with its own requirements, in addition to those of the licence period, adds an extra element of complexity to a person’s custodial sentence. The amendment will ensure that people with poor communication and comprehension skills, such as people with learning disabilities, will be able fully to understand the terms of their supervision requirements, and what might happen if they do not follow them.
It is generally accepted that between 5% and 10% of adult offenders have learning disabilities, and that a significant number of juveniles reaching 18 have speech, language and communication difficulties. However, in the absence of routine screening, the support needs of this group are often left unrecognised and unmet. Research undertaken by the Prison Reform Trust—I declare an interest as a trustee of the trust, and pay tribute to the brilliant work it does on behalf of people with learning disabilities who find themselves in the criminal justice system—showed that more than two-thirds of prisoners with learning disabilities and difficulties experienced problems with verbal comprehension, including problems understanding certain words, and with expressing themselves.
Research by various academics has shown that many people with communication difficulties lack the language skills to understand what is happening to them, and the implications of what is being asked of them. For example, many have problems understanding vocabulary that is commonly used in the criminal justice system, including words such as “victim” and “breach”. Many people with learning disabilities have limited language, comprehension and communication skills, which mean that they may have difficulty understanding and responding to questions and recalling information, and may take longer to process that information. They may also be acquiescent and suggestible, and, under pressure, may try to appease other people. Many also have memory problems, which may mean that they need regular reminders of what is expected of them over their licence and supervisory period.
I found that all these factors came into effect when I undertook my independent review of mental health learning disabilities in the criminal justice system, and I am grateful that the Government are supporting many of the recommendations in the report as we move towards a national rollout of liaison and diversion schemes—including, crucially, early identification and assessment of people with complex needs, including learning disabilities. To ensure that adults understand what is expected of them during their licence and supervision period, the language used must be appropriate to the intellectual ability and understanding of the individual offender. To do otherwise will place the individual at risk of non-compliance, possible breach and a return to court. It will also fail to take into account the need for reasonable adjustments, as required by the Equality Act 2010.
It is worth pointing out that a similar debate during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill highlighted concerns over the use of language by courts in explaining their sentences. The noble Lord, Lord Ramsbotham, said that the inclusion of the term “ordinary language” was not precise enough to ensure that offenders with learning disabilities and communication difficulties would be able fully to understand and comply with the requirements placed upon them. I am pleased to quote what he said:
“Ordinary language, however simplified, may not be sufficient to explain complex concepts or terminologies which could elude the comprehension of some individuals. For example, people with a learning disability may require easy-read formats, which include pictorial aids … different forms of communication above and beyond ordinary language must be employed, determined by what is most appropriate for the recipient”.—[Hansard, 1/2/12; col. 1652.]
In response, the Minister agreed that guidance would be passed on to the relevant judicial training bodies for consideration. I understand that this was the Criminal Procedure Rule Committee. He said:
“I very much appreciate the advice that Mencap provided on the various techniques that could be used to explain a sentence to people with learning difficulties. That will be used in the training of judges and magistrates, and I intend to pass that on to the bodies responsible for that training”.—[Hansard, 1/2/12; col. 1660.]
I would be grateful therefore if the Minister could update us on progress in that regard.
Let me now turn briefly to supervision requirements. Part 1 of Schedule 1 to the Bill outlines the requirements which may be imposed upon a person under supervision. I am concerned about the impact that some of these requirements may have on people with communication and comprehension difficulties, such as people with learning disabilities. In setting the licence and supervision requirements, the particular care and support needs of the individual should be both assessed and taken into account. One example is good behaviour. In Schedule 1, proposed new subsection (1)(a) to the Criminal Justice Act 2003 requires a person,
“to be of good behaviour and not to behave in a way which undermines the purpose of the supervision period”.
I, together with organisations such as the Prison Reform Trust, am concerned at the extent to which this requirement is open to interpretation. The Explanatory Notes to the Bill explicitly recognise this, stating:
“In relation to the requirement to be of good behaviour etc, there is a certain degree of imprecision in the requirement, but it is considered that it would be clear to offenders and the court what conduct would be prohibited under the requirement”.
The Government provide some clarity in referring to conditions outlined in Prison Service Instruction 2012/20 (licence conditions and temporary travelling abroad), stating that,
“clear policy guidance will be issued in relation to this topic”.
Good behaviour is highly subjective and can be used to describe many different types of behaviour. What may appear to be common sense to many people is unlikely to be explicit enough for certain vulnerable adults, such as people with learning disabilities or difficulties. It will therefore be important to ensure that any guidance recognises the intellectual ability and understanding of the individual under supervision and explicitly states and restates where necessary what would constitute a breach.
I would therefore be grateful if the Minister, when he responds, would give the House some assurances about the proposed guidance, including when it will be issued, who will issue it, how it will be disseminated and to whom, and what additional training will be provided.
Secondly, I turn to receiving visits. Proposed new subsection (1)(d) in Schedule 1 specifies that a person must,
“receive visits from the supervisor in accordance with instructions given by the supervisor”.
Again, it will be important for safeguarding issues to be fully taken into account when supervisors visit vulnerable people under their supervision, especially—for example—women and people with learning disabilities. Will the Minister give the House assurances that supervisors will be required to undertake appropriate safeguarding training work with vulnerable people?
Thirdly, on participating in activities, proposed new subsection (1)(h) specifies that a person must,
“participate in activities in accordance with any instructions given by the supervisor”.
It is very important that sufficient training and relevant information are provided to ensure that supervisors are made aware when individuals have particular support needs, such as communication or comprehension, are able to ensure that the support needs of people under their supervision are met and ensure that realistic targets and expectations are set. Again, I would be very grateful to the Minister if he will clarify how the Government will ensure that people with learning disabilities and other support needs are identified, and how they will ensure that inappropriate requirements with which a person may not be able to comply are not set.
In conclusion, I hope the Minister will confirm that he recognises the importance of ensuring that people with learning disabilities and complex needs have every chance of being successfully rehabilitated, which, clearly, is what we are all trying to achieve. I beg to move.
My Lords, the noble Lord, Lord Bradley, said that the language which is used must be understandable. However, it seems to me that a word in the Bill is very confusing. It states that the relevant period is for “rehabilitation”. I am not awfully good at the English language but rehabilitation suggests to me going back to a golden age before the offence was committed. In fact, the life of probably the vast majority of these offenders was hell before the offence was committed. We should be looking for something better than rehabilitation—something more like habilitation.
I support the amendment so ably moved by the noble Lord, Lord Bradley, and, in so doing, declare two interests, one as chairman of the All-Party Group on Speech and Language Difficulties and, secondly, as a vice-president of the Centre for Mental Health, which has the privilege of hosting the follow-up work being done by the noble Lord on his excellent report, which he mentioned.
My concern over this issue was heightened by a paragraph I read on page 9 of the White Paper, which describes how the Ministry of Justice will put in place a system which will give providers sufficient grip to make sure offenders engage with the rehabilitative services. I am not certain that “grip” is the right word to use in connection with these people.
The noble Lord rightly mentioned his concern about the training and education of the supervisors who do not, of course, come from the probation service but from a whole host of providers yet to be realised. He mentioned the Legal Aid, Sentencing and Punishment of Offenders Act, during the passage of which my noble friend Lord Rix and I met with the chairman of the Queen’s Bench Division to discuss how offenders could be made aware of these issues during the judicial process. We were most particularly concerned about the increasing incidence of police taking action without going to court, and making certain that offenders have the necessary representation on the part of responsible adults who can interpret matters for them. This issue needs to be looked at.
That allows me to make another observation about the White Paper. Although it is acknowledged that many of these offenders have mental health problems, including learning disabilities, there is no mention of commissioning mental health services for them, which gives the probation service a problem. With the emergence of a new commissioning process under NHS England and of health and well-being boards, it will be important for the probation service to be associated with those boards to make certain that the proper support is available, not just in relation to the subject raised by the noble Lord, Lord Bradley, but in relation to all aspects of mental health problems experienced by offenders.
My noble friend Lord Northbourne’s comments on the word “rehabilitation” have stimulated my thoughts on this matter. He is absolutely right: rehabilitation can only mean a return to a condition which once existed. I am not enough of a linguist to say exactly how the word is constructed, but that is clearly what it means. I wonder, however, whether the word “reform” might be appropriate in the circumstances. I well remember one of the very first days that I attended this House, in 1981. A speech by the Lord Chief Justice, Lord Lane, a most distinguished gentleman, was given very great publicity and attention by the House. Its theme was that in the whole of his experience, both as counsel and as judge, he did not think that prison had reformed a single person. I remember asking myself how that could be, side by side with Rule 1 of the
R ules of the time, which said that the chief purpose of imprisonment was the reform of the offender. Both could not possibly be right. Putting aside that irrelevance for the moment, it may very well be that the word “reform” would be a more appropriate description of the situation than “rehabilitation”.
The noble Lord, Lord Bradley, raised the question of the condition of supervision that a person should be of good behaviour. It may well be that Parliament should define that situation more closely and specifically. There are two aspects here. The first is the boundary that it is Parliament’s duty to place and the second is the communication of the exact location of that boundary to the defendant in appropriate circumstances. It is part and parcel of the duty of the sentencer in any aspect of sentencing to make it clear to a defendant exactly what the court means. Over and above that, it is also their duty of the interview solicitor and counsel before leaving the matter, to make quite certain that the defendant knows exactly what is meant and what is expected of him or her.
Before my noble friend sits down, surely “rehabilitation” is the correct word because it relates, not to the period before he went to prison, but to the period while he has been in prison.
My Lords, this is an important amendment, apart from the fact that we have to consider whether the Title of the Bill needs amending. I strongly support the very wise words of the noble Lords, Lord Bradley and Lord Ramsbotham, in support of the amendment. One of the most important tasks of a court is giving explanations to offenders to make sure that those who are subject to the orders of the state understand the requirements that are placed on them. If that is the responsibility of a court and of judges, it must surely also be the responsibility of a supervisor under this Bill. I like to think that we have all had a stage in life when, until it could proved that we had done something wrong, we were innocent of having done so. If that is right, “rehabilitation” is a pretty good word to cover what is being sought to be done. I rejoiced when I saw the Title of the Bill and knew that focus was, at last, being placed on an extremely important task of the criminal justice system: to protect the public by preventing people offending again. I emphasise the word “again”.
I hope that in due course the Minister will, following the powerful arguments advanced by others, look on this proposal with considerable sympathy. I should, like the noble Lord, Lord Bradley, disclose an interest: I am also involved with the Prison Reform Trust—not as a valuable member, as is true of the noble Lord, but as its chairman. I make that disclosure in relation to subsequent amendments that shall be advanced today.
Perhaps I may add to the debate that the clutch of noble and noble and learned Lords started. Rehabilitation may indeed be one objective, but it may also be of interest that Rule 1 of the Prison Rules states that the people who are in such care should lead “good and useful” lives.
My Lords, I shall resist the temptation to reach for my copy of Roget’s Thesaurus but simply confine myself to commending my noble friend Lord Bradley on the amendment and to paying tribute to his long record of very effective concern for this issue. His point about the desirability of having some knowledge of the proposed guidance on good behaviour is a matter on which the Minister should reflect. I hope, even if a final version is not available, that at least an outline of what is intended by that definition can be provided before Report. I hope that he will accept the amendment, which seems to make a great deal of sense.
I have just one further observation. It seems important that the communication and explanation recommended in the amendment should be given at the prison gate, as it were, before the prisoner leaves, not at some point afterwards. That would obviously make sense and I hope that the Minister will take that on board as well as the question of defining what would have been meant by “good behaviour” for the purposes of communication with a group who may struggle with that concept without adequate explanation being proffered.
My Lords, as always, I have listened with great interest. I am for ever learning when I hear such wisdom from across the House, although, when listening to the debate on rehabilitation and good behaviour, I was reminded of my childhood. I perhaps disagree with one noble and learned Lord who suggested that we are all innocent. We were all guilty in front of mother, and “rehabilitation” was not a word that she used when putting us right.
Nevertheless, I join the noble Lord, Lord Beecham, in commending and acknowledging the terrific work of the noble Lord, Lord Bradley, in this area. I also thank the noble Lord, Lord Ramsbotham, for raising this issue, and acknowledge the incredible work of the work of the Prison Reform Trust. The noble and learned Lord, Lord Woolf, said that perhaps his worth in the Prison Reform Trust was not quite recognised because he was merely the chairman. However, his worth is well recognised in your Lordships’ House, as it is in this debate.
All noble Lords who contributed referred to the importance of communication. I firmly believe that that is important in ensuring that the people we are seeking to assist understand what is being resolved for them in their lives and what is ultimately the goal—that they become productive citizens for the benefit of them, their families and society as a whole. The noble Lord, Lord Bradley, asked whether I would acknowledge the importance of the requirements of those who have learning difficulties or problems in understanding. I do so from the outset—absolutely.
Noble Lords have already referred to this, and will recall the helpful and informed debates on the subject during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Government listened to those debates and, as a result, amended the duty on courts to explain sentences, in order to allow criminal procedure rules to give sentencers guidance on how to do this. Again, there has been some debate over the word “rehabilitation”. Perhaps a thesaurus or dictionary could have been reached for, but I think it is the right word. It is about the rehabilitation of the individual to allow them to become productive citizens in society as a whole.
As noble Lords mentioned, it is equally important that supervisors as well as sentencers are able to explain to offenders what is required of them, in a way that they can understand, otherwise we will simply set offenders up to fail. It may be helpful here to set out how this process already works for offenders who are released from custody on licence. Instructions for prison and probation staff are clear that they must ensure offenders understand the meaning and effect of licence conditions. If I may I will quote the relevant paragraph, which is in the Probation Instruction 20/2012 and Prison Service Instruction 40/2012:
“When explaining licence conditions to offenders prior to release, staff must ensure that the offender understands any such conditions. This is particularly important with additional and bespoke conditions as they may contain complex or detailed requirements. In addition, staff must take into account any issues such as English as a second language”, which thus far has not come up in the debate, but is an important issue,
“or learning disabilities that may prevent the offender from understanding completely what is required of them”.
These instructions apply to both prison governors and probation staff, whether employed by the probation service or other providers. This is because for some offenders a single explanation may not be sufficient, as the noble Lord, Lord Bradley, reminded us. For some, it may be important that supervisors also understand the meaning and use their meetings with the offender to continue to remind them of their licence conditions, as was pointed out by the noble Baroness, Lady Howe. For others, an explanation while preparing for release will also be vital.
To support staff in fulfilling this requirement, an easy-read version of licence conditions is available. An updated version is currently being finalised, which I will be happy to make available to noble Lords as soon as it is published. I understand that this is imminent, and I hope that it will become available during the passage of the Bill.
The importance of training has been raised by a number of noble Lords, and we agree with that. The offender supervisor training course covers licence conditions, and also emphasises the need for effective and clear communication.
We intend to build on these arrangements once top-up supervision is implemented. We will issue revised instructions covering both licence and supervision requirements, which will be mandated for use by both the public sector probation service and private providers. Providers will be expected to comply with instructions as part of their contracts. I am happy to commit to issuing an easy-read version of the supervision conditions in the future, to complement what is already available for licence conditions. This is part of preparing materials and guidance for the rollout. I also point out that we have ensured that, as far as possible, supervision requirements replicate relevant licence conditions. This will help offenders to understand the transition from one to the other, rather than suddenly being subject to an entirely new and different set of conditions.
Under the new through-the-gate system, we envisage that providers will support offenders in custody before release. This will provide a number of opportunities to explain licence and supervision conditions. The noble Lord, Lord Beecham, raised this particular question. Let me assure your Lordships’ House that this will happen before release, through any provider working with the offender in custody; on release; through appointments with the supervisor after release; and again if an offender is warned for a technical or minor breach of licence or supervision. However, it is important that those who work with offenders can decide the best point at which to explain or re-explain licence and supervision conditions during that process.
The other point I would make here concerns the training of supervisors, an issue raised by several noble Lords. I agree that good training is vital in this process to ensure sensitivity when dealing with those under their supervision, as is understanding the individual. That is important when determining what skills an individual may have and what skills they need to develop.
The noble Lord, Lord Bradley, specifically raised the issue of the Criminal Procedure Rule Committee. We have now taken on the role of providing advice via the Criminal Rules. I know that the committee has already had a session with Mencap, an organisation that has been mentioned in our debate, and others. It has informed the committee’s review of the rules in terms of explaining sentences. Given the need for flexibility when supervision is explained to offenders, I am not sure that a broad statutory requirement on supervisors is the best way to ensure that this happens. That is not because I disagree with the intention behind the amendment. Indeed, I support the aim of ensuring that offenders understand fully what is required of them and the consequences if they do not comply. However, I believe that the existing system of instructions, guidance and training, which will be enhanced, provides a more tailored and flexible approach, giving discretion for when the explanation takes place, who makes it and how it is best delivered.
With the assurances I have given, including an assurance to make available the easy-read versions of the different sets of guidance we will be issuing, I hope that the noble Lord, Lord Bradley, will feel able to withdraw his amendment.
My Lords, I am grateful to the Minister for that detailed response. When you move an amendment you do not expect a debate around the wording of the Bill; that was an unforeseen consequence, but I am grateful to noble Lords for enlightening us with their contributions. I also thank the noble Lord, Lord Ramsbotham, for his support for this amendment.
It is clear that the Government recognise the importance of ensuring that people with communication and learning disabilities are fully informed and understand the requirements, and that the supervisors should be properly trained in this respect. I am pleased that the guidance which we have identified is to be issued as soon as possible; indeed, it is hoped before the Report stage so that we can be confident that that part of the process will be properly administered.
I am grateful for the assurances that the Minister has given and I am sure that he will look at Hansard to check whether there are any other points that have not been picked up. That will give him an opportunity to respond, perhaps in writing, to me and to other noble Lords who have contributed to this debate. We will then have a clear understanding of how we are to ensure absolutely that people with learning disabilities are able to complete their rehabilitation successfully.
Finally, I thank the Minister and other noble Lords for their kind words about my report on mental health, learning disabilities and the criminal justice system. With those comments, I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Moved by Lord Woolf
7: Clause 2, page 2, line 37, at end insert—
“(7A) The Secretary of State when specifying requirements under this section in respect of female offenders must have regard to the particular needs of women.”
My Lords, there are not many matters concerned with sentencing and dealing with offenders on which there is common agreement. However, it is clear that there is consensus among all those concerned about the particular needs of female offenders. I am very conscious that the Secretary of State and Ministers are aware of this issue, and I am confident that they will say that there is no need to make any mention of it in this legislation because they accept it and are seeking to give effect to it. However, I am bound to say that one of the difficulties with relying on the good sense, judgment and experience of particular Ministers is that you can never be sure that they are going to continue to fulfil the office which they hold at present, no matter how advantageous that would be. Of course, legislation, once passed, is going to last for a substantial period of time. I am firmly of the view that we must hope that the Bill does not bite the dust but, as a result of the scrutiny by this House, becomes worthy of its objects and proves to be a Bill which those involved in the criminal justice system in the future look at as a turning point.
It may appear arrogant for someone such as myself to suggest that a Secretary of State should need to have the reminder in the amendment, which requires the Secretary of State, when specifying requirements under this section in respect of female offenders, to have regard to the particular needs of women. However, while it may be arrogant of me, it is not arrogant of this House to take the view that that is a sensible and desirable safeguard, because history has indicated that, sadly, all too often, the criminal justice system, particularly when concerned with sentencing female offenders has not recognised their needs as they should. I know the Minister in his present role has been visiting assiduously criminal justice institutions up and down the land and has accumulated a great deal of knowledge. Unfortunately, Ministers eventually have to go and new Ministers come in their place, and they may not have the same knowledge that I know the Ministers in this Committee have of the special and particular needs of women.
I hope that this carefully drafted amendment—I emphasise that I was not responsible for the precise drafting—will in no way curtail the Secretary of State’s powers, but merely indicate what he must have regard to. That surely is a safeguard that could be properly included in the Bill. I hope that the Minister, because he understands the special problems of women in the criminal justice system, will take away this proposal and feel that it is one to which he can give effect in due course.
As other noble Lords who are engaged in this Committee are well aware, Amendment 7 is linked to very similar requirements contained in Amendments 25, 27, 28 and 29, for which I am also responsible. It is not always possible to find a way of happily bringing together all the points, but what I have said now applies to the other persons who are referred to in those specific amendments, who should also have regard to the special needs of female offenders. I beg to move.
My noble friends Lord Marks of Henley-on-Thames and Lord Dholakia and I have Amendments 10, 11 and 12 in this group. The three amendments are on the same subject, the needs of female offenders, but are a little more specific. I very warmly support the amendment moved by the noble and learned Lord, Lord Woolf.
According to Section 217 of the Criminal Justice Act 2003, the court, in certain circumstances, has to avoid “as far as practicable” imposing a requirement where there might be,
“conflict with the offender’s religious beliefs”, or with the times when,
“he normally works or attends any educational establishment”.
I use the term “he” to mean any offender, of course. To take the issue of female offenders’ concerns a little further, it seemed to me that those include family circumstances and the need to act as a carer, not just to children but perhaps to a spouse, an infirm elderly parent or to other family members. Building on what we have in the 2003 Act, I suggest that the supervisor shall “have regard to”—using the same words as the noble and learned Lord in that respect—“the compatibility” of the supervision requirements with “the offender’s family circumstances”. Caring is something particularly in my mind. The requirements might include one to attend at a particular place, such as one of the various centres which provide services and activities of a rehabilitative nature. When the offender, generally the mother, is responsible for a child and it is desirable that the child goes with her, that should be taken into account. My noble friend, I think on the first amendment, referred to both “flexibility and common sense”. These seem to me to be common-sense points but it does no harm to spell them out. Although the noble and learned Lord, Lord Woolf, said that there should be no need to be specific, Section 217 is quite specific.
On the second amendment, although we will of course be told that this is the case, I would, again, like the reassurance that a requirement specified under new Section 256AA must be “reasonable and proportionate”. It seems to me that those words are themselves reasonable and proportionate. I hope that the Minister who is answering—it looks as if it is going to be the noble Lord, Lord Ahmad—can give me that reassurance. New Section 256AA(6) provides that the Secretary of State has to “have regard”, as we have said, to the purpose of rehabilitation. However, it seems important to apply these restrictions and to require the compatibility to which I have referred.
Section 217 of the 2003 Act applies to relevant orders which are defined in Section 196 of that Act. I was persuaded by my noble friend that it would be going over the top to check out the drafting of the Bill by tabling an amendment to that section, but I would be glad to know, if not today then before Report stage, whether Section 196 is being amended, and if it is not, whether it does not need to be amended. It refers to community orders, custody plus—which, of course, has gone—suspended sentences and intermittent custody orders.
Finally, I come to Amendment 12. We have referred to flexibility. I am unclear how supervision requirements can be varied during the fixed one-year term of supervision and my Amendment 12 is directed to the ability for the supervisor to deal with variation. I am particularly pleased to be able to support the lead amendment in this group tabled by the noble and learned Lord, Lord Woolf.
I hope noble Lords will forgive me but, to make a clean breast of it, I came in when the noble and learned Lord, Lord Woolf, was in mid-stream. I just feel I cannot sit here without saying that I think this group of amendments is crucial. It puts into perspective what we are doing. Are we primarily about finding alternative means of punishment or are we primarily about rehabilitation? If we are about rehabilitation, it must be tailored to the individual concerned. If this in any way makes the rehabilitation to full, productive membership of society more difficult—and we all know that in many cases it is because people’s lives are in chaos that they end up in these situations—then we are not helping at all. These amendments are there to strengthen the intention of the Bill, if it really is about rehabilitation.
I added my name to one of the amendments tabled by my noble and learned friend Lord Woolf, rather thinking that they would be grouped together. That was perhaps the result of not being allowed the time to get our act together, but I suppose I must apologise. I hope my noble and learned friend Lord Woolf will be happy if I speak to this amendment and associate it with the other amendment. As well as supporting everything that has been said by the noble Baroness, Lady Hamwee, and by my noble and learned friend Lord Woolf on this issue, my particular concern is for the effect on the families of female offenders. I am concerned about their special needs because, as we all know, these women often have mental health problems and, I am sad to say, they have often been abused as young women. There is a lot of history of that. Drink and drugs also figure quite highly. But above all, the actual offences committed are often of a very minor nature. I can remember a visit to a women’s prison on one occasion and being asked by the women concerned why they had such harsh sentences compared with what a man would get for a similar offence.
Going back to the effect on the family, we need to know how many homes are broken up as a result of women being given a prison sentence, because that is a huge cost. If we are thinking, as we must, of financial costs as well as emotional and family costs, and of the long-term effect on the children of that family and their need to be taken into care, this should rate very highly on the list of considerations when sentences are being passed. I back what has been said by other Members, and I hope the Minister will be able to address these points and reassure us that by the time we come to Report there will be a much more satisfactory framework for what is intended for women offenders.
My Lords, I support my noble and learned friend Lord Woolf on Amendment 7. I understand that at this moment the Justice Select Committee in the other place is conducting an inquiry into women offenders. One of the areas on which it has had a lot of evidence of concern is payment by results. With reference to what we were told yesterday about cohorts, I presume that women offenders will be separate cohorts as far as payment by results is concerned and that the results that have to be achieved will be tailored to women and very carefully considered.
I do not think that my noble and learned friend Lord Woolf need apologise in any way for the amendment. There is no suggestion of arrogance in spelling out duties such as these. In the past 30 years, we have had about 30 criminal justice Acts, whether they carried that name or not, and I would be very surprised if one were not able to find in each and every one of them some structure not unlike that proposed by my noble and learned friend. If one thinks of the very basis of a prison sentence, at least 25 years ago that structure was spelled out in a way that some might think embarrassing to a sentencer, because it seems to me that no sentencer would ever conceive of approaching the problem in any other way. The statute states that the sentencer has to consider whether the offence that has been committed is serious enough to justify imprisonment in the circumstances and that he must then go back to see, in the light of all the circumstances, including the personal circumstances of the defendant, whether it is necessary for there to be a sentence of immediate imprisonment. In one respect, one could say that that is utterly insulting. Could there ever have been a sentencer so lacking in understanding and conscience not to approach his or her duty in that way? Yet, as a circuit judge, I had to look at that section day in, day out, and I found it utterly reassuring. I plead the point that there is nothing wrong in spelling out a duty, even though that duty might be obvious to everybody looking at the situation.
Like so many others who have been involved with the criminal courts, I have taken the view that men commit offences on account of all possible features in the range of human wickedness. In the case of women, it is very different. The splendid report on women in prison written some years by the noble Baroness, Lady Corston, reinforced the point that many of them are not criminals at all and should not be in prison. I am not saying that some of them have not committed truly horrendous offences, but that must be a very small proportion, and a very high proportion of women in prison should not be there. Including these principles in legislation, obvious though they are, would do no harm whatever.
My Lords, Amendment 9, which is part of this group, would add a mental health assessment as a supervision requirement in Schedule 1. As noble Lords will be aware, a high percentage of prisoners suffer from mental health difficulties, and the purpose of the amendment is that the sentencing court should be able to add a mental health assessment as a requirement that would benefit offenders when they came out of prison. Of course, it is far more desirable that this is picked up far earlier upstream, but there may be occasions where it has not been picked up, and it is obviously an issue. Sentencers should be able to add this as a requirement, so if it is not going to be picked up in prison it will be when the supervision period starts. That is the purpose of Amendment 9.
On Amendment 7 and the others, I agree with everything that has been said. I particularly agree with the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Hamwee, that many of the points were common sense. I will, if I may, tell one brief anecdote. A friend of mine recently visited a women’s prison in Scotland and talked to the governor, who said: “If I were to open all the doors today, only a very small fraction of the women would actually leave this prison. Most of them would choose to stay here because of the security the prison gives them.”.
As we have heard, the problems faced by women in prison are very different. I think it is generally acknowledged, and as the noble Baroness, Lady Hamwee, said, these amendments put forward a common-sense approach. I very much hope that my noble friend Lord Judd is right when he says that the Government’s real intention is to address rehabilitation, which is a fundamental problem. This Bill introduces provisions that were not in place before. We might differ about the funding and all the rest, but the fundamental intention of this Bill is a good thing.
My Lords, first, I thank all noble Lords who have contributed to this debate. Again, many valid contributions have been made. I assure the noble Lord, Lord Judd, right from the beginning that of course it is the Government’s intention, as has just been acknowledged, to ensure that people in unfortunate circumstances, which they sometimes do not have control of, are actually rehabilitated and become productive citizens, as I said in our debate on the previous group of amendments, for themselves, their families and for society as whole.
I also was a bit concerned—and I must confess something here—when the noble and learned Lord, Lord Woolf, not once but twice and perhaps even thrice referred to Ministers not remaining in their place. I looked with great concern at my noble friend Lord McNally. I thought that he was indeed my friend, but perhaps that is a discussion that we shall have privately. Nevertheless, I take on board the more serious point which the noble and learned Lord made in that respect. However, it is important, as discussions thus far have demonstrated, that the principle behind this Bill and the importance that underlies it are not just respected but that every Member of your Lordships’ House, no matter where they sit in the Chamber, is committed to ensuring that this Bill, as my noble friend Lord McNally has said on a number of occasions, reflects the great expertise in your Lordships’ Chamber when it leaves this House.
This group of amendments all relate to the conditions that can be imposed as part of top-up supervision and to what the Secretary of State should have regard to when specifying the conditions that can be included or what providers of services should have regard to when directing offender activities. In short, they are all about tailoring top-up supervision to the particular needs of offenders.
Amendment 7 relates to women offenders, about whom many sentiments and points have been raised, many of which, if not all, I agree with. The amendment, in the name of the noble and learned Lord, Lord Woolf, would, as he explained very eloquently, place a duty on the Secretary of State when imposing supervision requirements to have regard to the particular needs of women. The Government fully share the noble and learned Lord’s intention and view it as essential that the justice system is properly responsive to the needs of female offenders. We know that we will only rehabilitate these women who have fallen into this area and enable them to lead positive and productive lives if we truly take account of their experiences and, more importantly, their needs.
Noble Lords will be aware that the probation service already takes a women-focused approach to female offenders. All probation trusts are required by the National Offender Management Service commissioning intentions document to make appropriate provision for women in the community to address factors associated with their reoffending, and to using third sector and private sector services where appropriate. Similarly, we expect providers to recognise and respond to the particular needs of female offenders. Therefore, in employing the new supervision requirements introduced by the Bill to female offenders, it will likewise be essential to take account of the particular needs of the case in question, including, importantly, any childcare responsibilities.
My noble friend Lady Hamwee raised the fact that stable family relationships are important in supporting rehabilitation. A failure to take childcare responsibilities into account could put at risk the very purpose of the supervision period itself. However, the Government’s view is that we do not need a statutory provision to ensure that the needs of female offenders are taken into account. The key difference is that in future all offenders, both women and men, who are serving a custodial sentence of less than 12 months will have an assessment of risks and needs. This assessment will be undertaken by prison or probation staff and will cover the key areas of need. These include accommodation, mental health needs, skills and employment, children, families and, something which many women often sadly endure, issues of domestic violence.
The Government recognise that a significant number of female prisoners are vulnerable and have complex needs. The process allows for additional time to complete the assessment in such cases, so as to ensure that all their needs are not just identified but fully understood. The information gathered by this assessment will be used to draw up a bespoke plan for the sentence in custody and in the community that takes account of and will address the particular needs of that individual. This information will also be shared with service providers in the community, so that they, too, fully understand the individual offender’s needs and can then, importantly, tailor their services to help address these needs. We are therefore confident that the needs of female offenders will be identified and taken into account when setting the new supervision requirements. Therefore, we do not believe that the noble and learned Lord’s amendment is necessary.
Amendment 9 in the name of the noble Lord, Lord Ponsonby, on mental health assessments, relates to Schedule 1, which sets out the conditions that can be applied to the top-up supervision and adds a mental health assessment requirement. I welcome the noble Lord’s focus on mental health. Addressing the mental health needs of offenders is a priority for the Government. We know that we need to do more to make sure that offenders with mental health issues do not fall through the net. We all share that sentiment; indeed, that was discussed during consideration of the previous group of amendments. However, this should be done at the earliest possible opportunity—indeed, the noble Lord himself identified that—and not at the end of the process with top-up supervision. When my noble friend and I discussed this matter with officials, we impressed upon them the need to ensure that wherever in the process this issue is raised, we seek to address it according to the individual needs of that person. Providing appropriate intervention and treatment at the right time and in the right place is vital to improving outcomes for people with mental illness.
For some offenders with severe issues, in-patient treatment under the Mental Health Act will be appropriate. For others with less serious problems, there are already many opportunities for intervention and treatment. These include mental health treatment as a requirement of the community sentence and the comprehensive screening of every offender as they arrive in prison. I will share my own experience with noble Lords, since I have been involved in this area. When I visited Peterborough prison, I saw that as prisoners entered through the prison gate, their health, training, development, language, family and cultural issues were identified. That is the kind of model that we need to be working to. As soon a prisoner enters through the prison gate, we should be looking to help to reform—a word that has been used—and rehabilitate them from that point on so that by the time they come to the end of their sentence and go out into society, and I have no qualms about repeating what I said earlier, they become productive citizens for the benefits of themselves and of society as a whole.
I understand, of course, what the noble Lord has said about mental health also being a key element of tackling reoffending. It is of course crucial that the mental health status of the offender is ascertained before any trial or sentence, which is why pre-sentence reports will continue to give assistance to the court.
We also need to ensure that more people are assessed effectively and early enough to make sure that all those with mental health issues get referred to treatment. That is why the Government are developing liaison and diversion services to be introduced into every police station and criminal court. Liaison and diversion services will enable all those who come into contact with the criminal justice system to be assessed at the outset for a range of health issues, including mental health. Where people are identified as having health needs, a referral to a treatment or appropriate services is made. That means, of course, that health needs can be taken into account at all stages of the process, including charging and sentencing decisions. Information will be shared that will support the continuity of treatment for as long as it is needed by the individual. This should mean that more people are identified and that those with responsibility for the management and care of the offender as they move through the system and come out of prison will be aware of any treatment needs.
What is needed post-release is to ensure the continuity of treatment, rather than to reassess offenders. I am sure all noble Lords agree with that objective. Our proposals include a through-the-gate service where providers will engage with offenders before release and then help them to resettle into their communities. This service will support better continuity of treatment and access. Providers will be able to support the offender to access the services they need as they return to their communities.
I also expect any mental health treatment to be addressed as a priority. Engaging with the offender before release means that the providers can seek to arrange provision immediately upon release on licence for the offender to be supported into treatment in the community. I therefore welcome this amendment, but I believe that assessments at an earlier stage, as the noble Lord has acknowledged, are likely to achieve the desired objectives.
Moving on to Amendments 10, 11 and 12 in this group, in the names of my noble friends Lady Hamwee, Lord Marks and Lord Dholakia, Amendment 10 would add a new requirement to Schedule 1, which places a duty on the supervisor giving instructions to offenders on activities as part of top-up supervision to have regard to the compatibility of the activities with the offender’s family circumstances or, indeed, importantly, childcare responsibilities. Amendment 11 would add a new provision that every requirement imposed as part of top-up supervision must be reasonable and proportionate to the purpose of top-up supervision. Amendment 12 would add to the Secretary of State’s order-making power an ability to make provision about the requirements of top-up supervision and how they may be varied by supervisors.
I of course understand why it is important that activities do not interfere with family circumstances or childcare responsibilities, and why the requirements and activities under top-up supervision should be proportionate. I say to my noble friends that the Bill already includes a number of provisions that are particularly designed to focus the top-up supervision on rehabilitation. Clause 2 explicitly states that the purpose of the top-up supervision is for the rehabilitation of the offender, and the supervisor of the offender must have regard to that purpose when supervising the offender. Schedule 1 also provides a power for the Secretary of State to make a provision about the requirements of top-up supervision and the circumstances in which they are imposed.
For many years, prison governors acting on behalf of the Secretary of State have set licence conditions for those serving custodial sentences of over 12 months. The Secretary of State and his representatives will continue to set licence and, now, top-up supervision conditions. The experienced staff who set these conditions are aware of the need to make them proportionate and relevant to the individual offender. They are aware of the need to make these requirements practical and, indeed, achievable. They will be able to amend or vary the conditions if circumstances change. Providers supervising offenders will have to refer any breach action that is to be taken to court to the public sector probation service, which will also act as a second pair of eyes in regard to the appropriateness of conditions and the circumstances of any failure to comply. In short, there are already safeguards designed to ensure that the top-up supervision is focused on rehabilitation and that the conditions are sensitive to the particular circumstances of the offender.
My noble friend Lady Hamwee raised the issue of Section 196 of the Criminal Justice Act 2003. Currently, we have no plans to amend that section, but I will look at the specific concern that she raised and if need be I will write to her in that regard. Based on the assurances that I have given, I hope that the noble and learned Lord will be minded to withdraw his amendment.
Before the noble and learned Lord withdraws the amendment, as I assume he will, I wish to refer to that last point. Perhaps the Minister could ask his officials to let me know how Section 217—the one that I quoted about compatibility with religion and so on—can be brought to apply in the circumstances under this Bill if Section 196 is not amended. It is a matter of how it all knits together.
I wish to make one point. As the noble and learned Lord implied, rehabilitation can be the objective, but there are people who do not take into consideration the appropriate matters to move towards rehabilitation in a way that most people would think they should. It could be that some people in the criminal justice system think that one can achieve rehabilitation without putting the individual into his, or in this case her own, circumstances and context.
Perhaps we can pursue this after today but, bearing that in mind, as the supervision requirements are spelled out in detail in Schedule 1, are we in danger of them being construed so as to exclude the types of matters which I think all noble Lords who have spoken have referred to? Might they override those considerations because they are there in the statute? Anyone looking at it would say, “The only requirements that the Secretary of State may specify as being an executive action are the ones that are listed in paragraphs (a) to (j), so the other considerations do not have the same status or weight and I can disregard them, or at any rate have less regard to them”. Perhaps I can leave that thought with the Minister.
My Lords, I hope that the Minister, for whose response I am grateful, will reconsider what he has said today. With great respect, I do not think that he has met the points that we are making. In the future, we hope that the special position of women will be considered properly. For a very long period, the criminal justice system has failed in that respect. I am very grateful to the noble Lord, Lord Judd, for timing his entry into the Chamber so admirably. He picked up the great importance of the issue.
The problem is that the present Administration may not take this seriously if there are no clear signposts in the Bill. The Bill is meant to deal with particular problems that exist. The Minister recognised that in his remarks in relation to female offenders. Therefore, we have to break away from a clearly established pattern. It is very important that this constructive legislation shows clearly that it intends to tackle this issue. I hope that the Minister will think about what has been said during the course of the debate. I am extremely grateful for what other noble Lords have said and I am glad of their support. Their words deserve very careful consideration, which I hope they will receive. On Report, I hope that the Minister will have some good news for those who see this as a situation that needs to be addressed in a positive way. In those circumstances, I am happy to withdraw the amendment, and I thank those who took part in the debate.
Amendment 7 withdrawn.
Moved by Lord Beecham
7A: Clause 2, page 2, line 40, leave out from “services” to end of line 42 and insert “that is a public sector provider or a person commissioned by a public sector provider”
My Lords, this amendment seeks to amend subsection (2) of Clause 2 which, in turn, seeks to insert new Section 256AA into the Criminal Justice Act 2003. The amendment seeks to amend new subsection (8) of the new section in relation to the definition of a supervisor of persons subject to the supervision which will, when the Bill is passed, take effect for prisoners serving less than two years.
The purpose of the amendment is to be clear that the provider of the supervision should be a public sector organisation. At the moment, presumably it would normally be a probation trust or an organisation commissioned by such an organisation. It seems to me and to my noble friend important that there should be a clear public line of accountability for the provision of this service, which does not necessarily seem to be the case according to the wording of the proposed subsection as it that now appears. It is a fairly basic point. Given that we are looking at a significant responsibility, some of which at the moment is not exercised at all by the probation service—that is to say supervision of people serving less than 12 months—an important line of public accountability should be established. That in no way precludes, of course, the engagement of the third sector in relation to supervision of offenders, as long as they have been contracted by a public authority.
Of course, there are many examples of probation trusts working with voluntary organisations at the moment. I know that in my own area, Northumbria, a probation trust has very good working relationships and in Newcastle there is a successful scheme that has been commissioned in that way. There is no intention at all to ensure that all the supervision is actually carried out by the probation service but, if that is not the case, there should at least be that line of public accountability. I beg to move.
My Lords, the noble Lord will be quick to tell me if I am wrong, but as I read it, Amendment 7A has a very clear effect. It is to ensure that all top supervision of offenders should be carried out by the public sector providers or those bodies commissioned by the public sector. I have never hidden from this House that we believe, particularly in the present economic conditions, that we will be able to find the resources to carry through our rehabilitation revolution only by employing payment by results and involving the skills and initiatives of the private and voluntary sectors.
We are breaking new ground in our approach. We are committed to providing, for the first time in decades, supervision for those released from short custodial sentences. One of our key objectives is finally to tackle the unacceptably high level of reoffending among this group. That prize is worth striving for. However, to achieve that aim we have to be able to afford this additional supervision. To do that, we need to reduce our current costs of dealing with offenders. The noble Lord, Lord Ramsbotham, does not think that we can do this. I say to him that we cannot do so by only going down old ways and old costs. Competing the majority of probation services will improve value and efficiency throughout the system, making taxpayers’ money go further. For example, competing the community payback contracts in London saw a £25 million saving over four years. We will also look at efficiencies within the public sector by consolidating back-office functions and creating one national public sector probation service. That is another real plus for the Bill. I remember the debates nearly a decade ago, and I was never happy that the probation service was a kind of junior partner to the Prison Service. One of the effects of the Bill will be to create a national probation service with real status and a real voice in these matters. We also want to encourage innovation among providers of probation services, to ensure that we make a real change in reoffending rates. By paying providers in full only when they are successful at reducing reoffending we will not only make savings but will drive down reoffending rates.
We want to avoid what the last Government did. We do not want to create a sentencing regime that is overly prescriptive, complex, and unaffordable. In other words, we do not want to create another custody plus sentence, the flagship policy of the 2003 Act, which ended up never being implemented. I hope the noble Lord, Lord Beecham, will be reassured that we have learnt those lessons from the past, and that in the light of my explanation he will withdraw his amendment.
If I do, it will not be because of the noble Lord’s explanation. However, of course I will not press this matter to a vote.
We will come later to the question of payment by results and the considerable doubts that many of us on these Benches and in other parts of your Lordships’ House have about that as an appropriate way of dealing with the sensitive area of supervision. I stress again, as my noble friend Lord Ponsonby made clear earlier, that we strongly support the drive for reducing reoffending and that we are engaged with a question of the practicalities.
I come back to the position that in our view that line of accountability at the level of the provision of service should ultimately rest with a public sector body and not simply be hived off completely, even if the work is subcontracted—and there is no particular reason why that should not be the case. I mention specifically third sector organisations because they have a particularly valuable role to play. My amendment would not exclude contracting with private sector organisations, for that matter. However, they would be contracted by the public sector body with the legitimate experience. However, as I indicated I will not press this tonight, and I beg leave to withdraw the amendment.
Amendment 7A withdrawn.
Clause 2 agreed.
Moved by Lord Beecham
7B: After Clause 2, insert the following new Clause—
“Duty for all providers of probation services to attend community safety partnership meetings and co-operate with crime and disorder reduction partnerships
(1) Section 6 of the Crime and Disorder Act 1998 (formulation and implementation of strategies) is amended as follows.
(2) In subsection (1) after “responsible authorities” insert “including all future providers of probation services”.
(3) In subsection (1)(a)(i) after “disorder in the area” insert “to include attendance at local community safety partnership meetings and co-operation with crime and disorder reduction partnerships”.”
My Lords, it is common ground between all Members of your Lordships’ House, and reflected in some of the amendments that we have already debated, that the problems suffered by and indeed occasioned by offenders are complex and often multiple, and that in dealing with them no single agency is likely to be able to resolve all those problems or help people entirely overcome the difficult issues that they face. On the contrary, it is quite clear that in a number of areas, collaboration between various agencies will be required if we are to achieve the shared objective of reducing reoffending, both from the perspective of the advantage to society and of the individuals concerned. Therefore, looking at what is most likely to avoid reoffending, we know—and it has been rehearsed many times in your Lordships’ House—that the principal steps that can be taken to diminish reoffending relate to employment and in particular to housing, but also to issues such as health.
A number of different agencies could and should be involved in all these aspects, both in the direct provision of services and in the case of commissioning services, so that, for example, local authorities clearly have a role. I suggest that in shire county areas that is at both levels—of adult services which are county level responsibility, and housing, which is a district level responsibility. However, of course, in unitary authorities they are located within the same authority. Obviously the police have a role, but also in terms of employment one has to look at the Department for Work and Pensions. In terms of health, in the new organisation of the health service, I suggest that one has to look at two levels: the clinical commissioning groups and the national Commissioning Board, because they have responsibility over areas of mental health.
All these need to be involved, and many of them are already involved, in local arrangements, such as community safety partnerships and crime and disorder reduction partnerships. Some of them are involved in the health and well-being boards, which prepare strategic needs assessment. I would hope that the needs of offenders are reflected in those bodies. However, the purpose of this amendment is to ensure that all providers of the services which the Bill seeks to introduce, or at any rate ensure are available, come together with the other relevant agencies so that a genuine cross-sectoral partnership is dealing with these issues. Of course, that puts a responsibility on the other partners, as well as on the direct providers of probation services or supervisory services.
I hope that the noble Lord will accept that, at least on this occasion, this is meant to be a friendly amendment, designed to achieve some progress on a commonly shared objective, and I look forward to hearing his response.
My Lords, I always assume that the noble Lord, Lord Beecham, is working in the most constructive manner. I was a little brusque with him in my previous reply. I thought that perhaps buried away in his innocent amendment was an effect that might have undermined the purpose of our Bill. However, in respect of Amendment 7B, I would not even entertain such an unworthy thought. I understand where he is coming from; let me try to explain our approach.
This amendment would provide that all future providers of probation services would be responsible authorities for the purposes of formulating and implementing crime reduction strategies. It would also mean that all responsible authorities, not just probation providers, would be obliged to attend community safety partnership meetings and co-operate with crime and disorder reduction partnerships.
The Government fully share the sentiment in this amendment but nothing that we do will work unless it is rooted in local partnerships. The Transforming Rehabilitation strategy made clear that the Government expect new providers to engage with statutory and non-statutory local strategic and delivery partnerships. These will, of course, include community safety partnerships, but also others such as integrated offender management, safeguarding boards and youth offending teams. It will be in providers’ interests to work with other partners to achieve the best results, and our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.
However, we also set out in the strategy our clear expectation that providers will need to demonstrate how they will work in and strengthen local partnerships to deliver the results that they are incentivised to achieve. As part of the formal evaluation of this, we will include a requirement that providers’ evidence how they will sustain and develop networks and partnerships. Once the system is up and running, we will monitor local partnership working as part of obtaining assurances of the delivery of services. We will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.
I have set out our commitment and the steps that we are taking to ensure that our reforms are rooted in local partnerships so that offenders can access the broad package of support that they need to get their lives back on track. Incentivising providers to focus relentlessly on reducing reoffending means that it is in their interests to work with other partners and in local partnerships. However, we must ensure that providers have the flexibility to do what works. Integration at local level works best when it is not mandated centrally.
Sections 5 and 6 of the Crime and Disorder Act 1998 already specify that where contractual arrangements so provide, providers of probation services will be responsible to authorities for the purpose of crime reduction strategies. We have no plans to change the legislation in this respect. We are doing further detailed work on the contractual requirements on providers, and will look at how we address issues such as lack of engagement with partners locally. However, as I have already touched on, it will be in the provider’s interest to work with other partners to achieve the best result under our system, and we will incentivise them to do so. We will monitor local partnership working as part of obtaining assurance of the delivery service. As I have said, we will liaise with the police and crime commissioners, local authorities and others in this task. We are doing further detailed work on the contractual requirements on providers and will look at how we address issues such as lack of engagement.
However, it will be in the provider’s interest to do this work. For this reason, although I think it is an important issue, I hope that my reply convinces the noble Lord that it is one that we are keeping in mind as we draw up the contracts. We will try to get the balance right between flexibility in operation, which we have continually emphasised, and an important emphasis on local engagement, commitment and monitoring, which the noble Lord has rightly raised in this amendment. Having given such a warm and constructive reply, I hope that he will agree to withdraw it.
Out of sheer surprise, I certainly will. I welcome the thrust of the Minister’s reply. From the way that the amendment is framed, it looks as though responsibility is intended to fall only on the provider of the supervision but, of course, a wide range of other organisations—some statutory—need to be involved. While the Minister and the department will keep an eye on these matters, it is important that other departments are also engaged, including departments at a national level, particularly the Department for Work and Pensions, the Department of Health and the Department for Communities and Local Government. Then, at local level, there are various bodies such as local authorities, clinical commissioning groups and the like.
I wonder whether a cross-governmental approach on this would be sensible, although not necessarily at this point, rather than simply leaving it to the Ministry of Justice to adumbrate the desiderata of co-operation, but ensuring that there is buy-in from other government departments. Equally, we might approach, for example, the Local Government Association—I declare an interest as an honorary vice-president thereof—to encourage local authorities to recognise the importance of their role in this new programme.
There is nothing between us on this. I hope that spirit of joint approach, which has been evident in the Chamber tonight, will be communicated to those who will be taking the important decisions at the local and, indeed, the national level. I beg leave to withdraw the amendment.
Amendment 7B withdrawn.
Schedule 1 : Supervision Requirements
Moved by Lord Beecham
8: Schedule 1, page 20, line 6, leave out paragraph 1
My Lords, I expect this will be another brief debate. There are two matters to which I want to draw attention in this amendment, and they relate to Schedule 1, which seeks to introduce a new provision, again into the Criminal Justice Act 2003. One relates to the requirements that the Secretary of State may specify must be adhered to by an offender on supervision. That is in relation to the,
“requirement to reside permanently at an address approved by the supervisor and to obtain the prior permission of the supervisor for any stay of one or more nights at a different address”.
While one can well see the importance of residence, particularly in cases where it is undesirable for an offender to reside in a particular location—for example, if there has been an incident of domestic violence and that is the subject of his or her conviction. Equally, however, there are very vulnerable people in the system. If they were, for example, to return to the family home—particularly in the case of a young person, but not necessarily in only those cases—where there are already problems, one can envisage circumstances in which they may be unable to continue to reside there and it may be almost an emergency situation.
I hope it would be clear that, in those circumstances, as long as the offender takes the first opportunity to notify that he or she has not been able to return to that place of residence, that would not lead to a breach. I assume that would be the case, but some words on the record from the noble Lord would perhaps be helpful.
My other question is a simple one in relation new Clause 256AB(4), which relates to the fact that the Secretary of State may, by order, specify additional requirements, or “remove or amend” the requirements that have already been set out in new subsection (1). The order will presumably have to take the form of something laid before the House. The question is whether that would be an order subject to negative or affirmative resolution. It is as simple as that. I beg to move.
My Lords, I hope I am answering the amendment that the noble Lord has moved, because I am just wondering what Amendment 8 would actually do. It would remove paragraph 1 of Schedule 1 to the Bill, which amends the 2003 Act and sets out the conditions under which the Secretary of State may top up supervision. I have already said that top-up supervision is a useful device to ensure that there is a reasonable period of supervision to enable a change to be made to the offending behaviour. Therefore, the amendment has the unusual and perhaps unintended effect of not removing the provision for top-up supervision that is contained in Clause 2.
Instead, it would simply remove any statutory controls on the conditions that can be imposed during the supervision period. When sentencing offenders to custody, courts will be unaware of the limits to the conditions that may be imposed by the Secretary of State. This could affect their sentencing behaviour if they decide that they need to compensate for the risk of punitive supervision conditions being imposed. It also, strangely, retains the detail of drug testing and drug appointments under the top-up supervision, which are in paragraph 2 of the schedule, along with the process for dealing with the breach of supervision. However, it removes the reference to them as conditions of the supervision.
The noble Lord said that this was a probing amendment. I will look again and reflect on what exactly he was probing. If I need to clarify this, I will. On his question about a resident who for unforeseen circumstances was in breach, again, I hope that what we are doing is not setting up circumstances for individuals to fail; these are meant to be supportive, sensible, intelligent ways of dealing with individuals whom we know—as has been emphasised—often have very complex problems. The noble Lord has probed, I have responded, and if the matter requires further clarification, I will certainly provide it.
I am grateful for the second—unscripted—part of the noble Lord’s speech. In the circumstances, I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
Amendments 9 to 12 not moved.
Schedule 1 agreed.
Clause 3 : Breach of supervision requirements
Moved by Lord Marks of Henley-on-Thames
13: Clause 3, page 3, line 38, after “may” insert “if satisfied that the interests of justice so require”
My Lords, I will speak also to Amendments 16 and 17 in this group. All the amendments are in my name and in the names of my noble friends Lady Hamwee and Lord Dholakia. Our amendments concern sanctions for the breach of supervision requirements. Clause 3 deals with such sanctions. Noble Lords will have seen that failure to comply with supervision requirements may lead to information being laid before a justice and to the issue of a summons, with or without an arrest warrant, as appropriate. On proof of a breach of supervision requirements without reasonable excuse, it is proposed by new Section 256AC(4) that the court may do one of four things. First, it may impose a sentence of 14 days in prison or in a young offender institution, as appropriate. Secondly, it may impose a fine. Thirdly, it may impose an unpaid work requirement. Fourthly, it may impose a curfew requirement. The clause is permissive, so it would be open to a court also to take no action. However, as drafted, the clause establishes no test for when action is or is not appropriate.
As has been pointed out, the Secretary of State very helpfully attended a meeting of all Peers yesterday and explained the purposes of new Section 256AC(4). The first purpose was, effectively, punishment. He explained that because this section is concerned with offenders who have been sentenced to prison and who then on release are subject to supervision requirements, it should be made clear that if the offender does not comply with those requirements, there will be a penal sanction. That effectively is why the four sanctions that I listed—imprisonment, a fine, unpaid work or a curfew requirement—are penal in nature.
The second purpose he outlined was personal deterrence. He explained that offenders should not think that the supervision requirements are in any sense voluntary, and that if they choose to ignore them or fail to comply with them, nothing will happen. He might have added that there should also be an element of public deterrence, so that the world will know that if offenders disobey supervision requirements, they will be liable to penal sanctions.
Those propositions may be sound; I do not dissent from them. However, they do not advance rehabilitation, which is the purpose of the Bill. Furthermore, offenders on release from short sentences are, as the Government and many noble Lords have pointed out, particularly fallible. It may be that in many cases a court would take the view that instead of imposing one of the four penal sanctions, it would be better in the interests of rehabilitation for the supervision requirements previously imposed by the Secretary of State to be varied. It may be that they should be varied to stronger requirements or to requirements that are better targeted to the particular needs of the offender, which may have been revealed by the breach of the requirements that had been imposed earlier—or by the proceedings taken after the breach and the investigation before the magistrates in court when the breach was looked at.
The possible requirements that can be imposed are to be found in Schedule 1. They cover a broad range and are very flexible. It is right that an offender may start with a very relaxed regime but a court may take the view on investigation that although the breach of those requirements justifies the imposition of a much tighter regime, it does not require one of the four penal sanctions. Amendment 16 would allow the court to recommend to the Secretary of State that the requirements be varied. Why should they be varied on the Secretary of State’s recommendation? It is because the notice imposing requirements comes from the Secretary of State by virtue of new Section 256AA. I accept that it is therefore right that the court’s power should be to make a recommendation for the Secretary of State to vary the requirements rather than to make an order imposing such a variation. The proposed scheme allows the court much more flexibility than it has under the Bill as drafted. That flexibility would both be useful and advance the cause of rehabilitation.
Amendments 13 and 17 are designed to ensure that the courts have some guidance about the proper response to a breach. Noble Lords will remember that at Second Reading, concerns were rightly expressed by a number of Peers, including the noble Lord, Lord Beecham, and the right reverend Prelate the Bishop of Newcastle, that the purpose of the Bill, which is rehabilitation, might be frustrated by the excessive imposition of sanctions for breach. As the Bill is presently drafted, the court has no indication as to when it ought or ought not to impose a sanction. Amendment 13 would give a clear direction as to what should be the court’s approach to a breach of supervision requirements. It would impose a threshold test so that the power to impose sanctions would be exercisable where the court was satisfied that the interests of justice require a sanction to be imposed. While I accept that it may be said that that can be inferred from the permissive nature of the power, it seems to me that the purpose and the test should be expressed on the face of the Bill. Amendment 17 would help to secure some policy consistency and uniformity in the imposition of sanctions by requiring that the Sentencing Council should publish guidelines in respect of the imposition of sanctions for breach of supervision requirements.
These amendments introduce flexibility to allow for the appropriate treatment of individual offenders and individual cases of breach. They are in the interests of rehabilitation which the Bill is designed to promote. They do not undermine the policies which the Secretary of State outlined yesterday and which he rightly wishes to implement in pursuit of that policy. I therefore invite my noble friend the Minister and his department to consider them on that basis. I beg to move.
My Lords, my Amendment 14, which is very similar in many ways to the amendment moved by the noble Lord, Lord Marks, would help to ensure that the purpose of the new supervision period is primarily rehabilitative by removing custody as a sanction for technical breach of requirements. It would retain the sanctions available to the courts of imposing a fine or a supervision default order imposing either an unpaid work requirement or a curfew requirement. The option of recall to custody for breach of conditions during the licence period is unaffected.
The Prison Reform Trust—it is good to see the noble and learned Lord, Lord Woolf, in his place—has had many tributes paid to it to which I add my own for the invaluable work it does in the whole of this area. It is particularly concerned that, without additional safeguards, the proposals will result in an increase in breach and recall to custody, which will drive up the short sentenced prison population. As the Transforming Rehabilitation consultation acknowledges, many people serving short prison sentences have complex and multiple problems, including homelessness, unemployment, drug and alcohol addictions, mental health needs and learning disabilities. This in turn increases the likelihood of breach and recall to custody if sanctions imposed for non-compliance are too onerous or the period of licence or supervision is too long.
By limiting custody as an option for breach, the amendment should help to reduce the costs of extending statutory supervision to short sentenced prisoners. The risk of breach and recall to custody is acknowledged but not quantified in the impact assessment. It states:
“There will be court costs associated with breaches of this provision and costs of providing sanctions for these breaches. These will include additional pressure on the prison population arising out of offenders being recalled to custody and further electronic monitoring starts. Initial estimates of these costs are of the order of £25 million per year”.
In addition, the impact assessment states:
“There may be an additional burden to the police from extending supervision in the community to offenders released from custodial sentences of less than 12 months, as police time will be needed to deal with offenders who fail to comply with the conditions of supervision. Our initial estimate is that this could cost up to £5 million per year”.
The rise in the number of recalls has been identified by the Ministry of Justice as a key driver of the growth in the prison population over the past two decades. The recall population has grown rapidly since 1993, increasing by more than 55 times. The recall population increased by 5,300 between 1993 and 2012. Growth in the recall population began in 1999, reflecting the change to the law in 1998 which extended executive recall to medium-term sentences—12 months to less than four years.
There is a significant risk that extending recall to custody as an option for breach of the new supervision requirements for short sentenced prisoners could have a similar impact on the short sentenced prison population. This would be counterproductive to the rehabilitative aims of the proposal, given the poor record of prison at reducing reoffending, particularly by short sentenced prisoners. Reoffending by offenders sentenced to less than 12 months in prison is estimated to cost the economy up to £10 billion annually and 57.6% of prisoners sentenced to 12 months or less reoffend within one year of release. For those who have served more than 11 previous custodial sentences, the rate of reoffending rises to 68%, which is a horrific figure. By contrast, community sentences for 18 to 24 year olds outperform prison sentences by 12.8 percentage points in reducing reoffending. Even when offenders of all ages are closely matched in terms of criminal history, offence type and other significant characteristics, the performance gap remains a robust 8%.
In the summary of responses to the Transforming Rehabilitation consultation the Government acknowledge that “many” respondents suggested that return to custody should,
“only be available as a final option after other sanctions had failed, rather than an automatic response in every case”.
The Government then state:
“The conditions attached to mandatory supervision will be geared towards rehabilitation rather than punishment, with discretion for providers to identify the activities that should be carried out. We propose to adopt a range of sanctions to address non-compliance with supervision, only recalling offenders to custody as a final measure”.
That is partly reassuring and I was rather more reassured after the meeting we had yesterday on these and other issues. However, despite these assurances, very little provision is made in the proposed legislation to ensure that custody will be imposed as a last resort in response to breach of the supervision requirements. Subsection (4) of new Section 256AC sets out the sanctions available to the court where it is proved to the satisfaction of the court that the offender has, without reasonable excuse, failed to comply with a requirement during the supervision period. These include committal to prison for a period not exceeding 14 days, a fine and a supervision default order imposing either an unpaid work requirement or a curfew requirement. There is nothing in the legislation which guarantees that custody will be imposed only as a final measure. I very much hope that the Minister will be able to reassure us further on these points.
My Lords, as regards the practicalities of this issue, as mentioned by the noble Lord, Lord Marks, and the noble Baroness, Lady Howe, it is important to provide greater flexibility to deal with breaches. Many of the offenders whom the Bill is intended to help to go straight have deep problems which are often associated with drugs. It would be a huge achievement if these offenders were able to keep out of trouble for part of the 12-month period. Sending them into custody would be most unfortunate and would fail to give them the further opportunity they may need. Support can be much more helpful in these circumstances than something that is more in the nature of a sanction. Sanctions are important in appropriate cases, but other approaches are sometimes more constructive.
My Lords, I join the noble and learned Lord and the noble Baroness, Lady Howe, in supporting the amendments spoken to by the noble Lord, Lord Marks, which would help considerably. The noble Baroness’s amendment would remove the capacity to order a person in breach to be committed to prison. She said that there was no provision in the Bill for this measure to be used as a last resort. That is the substance of my amendments in the next group. It may be convenient for me to speak to those amendments now as I am advised that that is possible. It makes sense to do so, as my Amendments 15 and 18 would qualify the provision in new Section 256AC(4)(a) within Clause 3 by providing that a sentence for breach not exceeding 14 days is to be treated as a last resort. I hope that meets the point raised by the noble Baroness. Concerns were expressed about this provision in the consultation document, which the Government acknowledged in their response. However, as yet, their response has not been reflected in the Bill. In my submission, it would make sense to add that qualification, so that, in addition to the provisions in the amendments spoken to by the noble Lord, Lord Marks, the right of the court to impose a custodial sentence of up to 14 days would be preserved but it would be stated explicitly in the Bill that it is to be used only as a last resort. That is the sort of declaratory statement to which the noble Lord has referred in earlier debates.
Is the Minister in a position to indicate the anticipated number as regards the recall provision? I could not find it in the impact assessment. He may not be in a position to do that. However, the noble Baroness rightly referred to the very large increase in this regard—the 55-fold increase—in the past 20 years, most of which, as she rightly says, occurred over the past 14 years. Many of the custodial sentences for breach are imposed on young offenders. Indeed, the Prison Reform Trust has reported substantially on that problem.
I suspect that there is no great distance between the Minister’s position and that set out in the amendments of the noble Lord, Lord Marks, and in my Amendments 15 and 18. I would welcome the Minister indicating tonight or on Report that those measures will be included in the Bill, with the appropriate wording. The noble Baroness rightly referred to concerns about there being an increased readiness to impose custodial sentences for breach and the cost of this in material terms and, potentially, for offenders and the rehabilitative process. This is not a clear-cut issue and there are clearly arguments on both sides but I have heard concerns expressed by a senior member of the Magistrates’ Association as well as by the noble Baroness and other organisations. Accepting these amendments would go a long way to relieve those concerns while still leaving the court with the ultimate power to impose a custodial sanction as a last resort.
I thank noble Lords who have taken part in this debate. Perhaps I could cover numbers and costs in the revised impact assessment that I will bring back to the House.
I say to the noble Lord, Lord Beecham, and the noble Baroness, Lady Howe, that I certainly do not want to see any benefits gained from a successful rehabilitation programme being dribbled away in the costs incurred through dealing with breach. That would be very self-defeating indeed and we must look carefully at that. However, although this is a wonderful Chamber in which to discuss these problems, I sometimes think that we try too hard to be understanding on these issues. In trying to understand all these terribly complex problems with which these people are faced, we do not face up to the fact that they have a choice. As I have said in previous debates, I remember from my childhood young people who experienced in their upbringing many of the problems we talk about in this House but who nevertheless grew up to be honest, decent, honourable members of society. It is a choice.
In our efforts to understand, I sometimes think that we leave some of these offenders with the belief that the gun is never loaded and that they will never have to face the consequences. As the noble Lord, Lord Ponsonby, has said in earlier debates, some offenders who have been given every chance, shown every understanding and been offered every opportunity still appear before the courts and the magistrates have no alternative. I am as willing to be as woolly a liberal as the next man, but we must also send a very clear message that as a society we do not intend to tolerate anti-social and criminal behaviour without a firm response. If we do not do that, some of the characters we are trying to deal with will never apply themselves to the offers we are making them that we hope will help them put their lives together again.
I will try to deal with the various amendments, and I accept with alacrity the kind offer of the noble Lord, Lord Beecham, to reschedule his amendments into this group. I turn first to Amendment 14 from the noble Baroness, Lady Howe. Its effect is simple to understand: it would remove the power of the court to commit an offender to custody for failing to comply with the conditions of their top-up supervision. I do understand concerns about the risk of some offenders ending up back in prison for breaching their supervision conditions. We should, however, not lose sight of the fact that far too many of these offenders are already ending up back in custody because they have been released without any conditions and have gone on to reoffend.
There has to be a balance between the need to ensure there is some grip on offenders under supervision and the need to keep them out of custody and on programmes designed to rehabilitate them. The Bill gets this balance right. First, there is discretion for supervisors to warn offenders before bringing breach action. Secondly, the decision to bring breach action will always be taken by the public sector. It is not in the interests of the public sector to have lots of offenders recalled to custody, which we all know is expensive.
Then we have the need in the Bill to demonstrate to the court that a breach has occurred and with no reasonable excuse. The court can find there has been no breach or that there was a reasonable explanation for the breach. Only when it is satisfied that there has been a breach can the court decide on the action to take on the breach. I would stress to the noble Baroness that the court may decide that, despite there being a breach, no sanction should be applied to the offender.
This is because Clause 3 creates new Section 256AC subsection (4) of the 2003 Act, which states that, if there has been a breach, a court “may”—not “must”—impose a sanction. I am quite sure that my noble friend Lady Hamwee will make that part of her bedtime reading because she likes to go back and check whether we have got this exactly right.
Even when the court decides there should be a sanction, it has three alternative options to consider before it decides to commit an offender to custody. If it does commit to custody, the maximum period available to the court is 14 days and this period does not amount to a new sentence, meaning it does not trigger a new period of supervision. As I say, I recognise the concerns about returning people to custody, but we have to put these safeguards in place. We also need to give the courts a range of sanctions that are effective in punishing an offender for breaching conditions and in getting the offender back onto the rehabilitation activities as soon as possible, which is the intention of the supervision period.
The noble Baroness’s amendment would create an inconsistency with existing powers. This is because the courts can already commit offenders to custody for failure to pay fines or for failure to comply with requirements of community orders. It would, I suggest, create an anomaly that courts were able to commit to custody for lesser sentences but were not able to do so for breach of conditions attached to more serious sentences involving custody. I hope my reassurance on the safeguards and the discretion given to the courts, reassures the noble Baroness so that, at the appropriate time, she will not move her amendment.
I now turn to Amendments 13, 16 and 17, proposed by my noble friends Lord Marks, Lord Dholakia and Lady Hamwee. Amendment 13 adds a qualification that the sanction for breach of top-up supervision may be imposed if the court is satisfied that the interests of justice so require a sanction. I hope that I have already made clear that the provision as drafted gives the court an option to decide not to impose a sanction even if a failure to comply with the condition has been demonstrated. This is because the court may impose a sanction for a breach but does not need to. The addition of an “interests of justice test” is unnecessary as the court already has the discretion to decide not to impose a sanction and would do so only if it felt it necessary. In other words, the court already has discretion to decide whether to sanction in the interests of justice.
Amendment 16 would mean that the court considering a failure of the offender to comply with top-up supervision conditions could recommend to the Secretary of State that the supervision conditions should be varied and suggest ways in which they may be varied. It will remain for the Secretary of State to set licensing conditions and now to set the new top-up supervision conditions. This is a continuation of what happens now with offenders serving longer sentences that already attract release on licence and is the most practical approach to setting conditions of supervision. However, I take my noble friend’s point that there may be circumstances in which a court dealing with a breach can point out that the rehabilitation of the offender might be better addressed by a variation of the Secretary of State’s supervision conditions. That seems a sensible and practical suggestion and I will take it away and examine the technicalities of the process and return to this at a later stage.
Amendment 17 would create a statutory duty on the Sentencing Council to publish guidelines with regard to the court’s powers to deal with failure to comply with supervision conditions. I expect that the independent Sentencing Council will want to provide guidance on the treatment of breaches as it does, for example, on breaches of other orders. I also expect that this will be a key element of the training for the judiciary that the Judicial College will want to provide. As noble Lords will know, the Sentencing Council is an independent body set up and governed by the provisions of the Coroners and Justice Act 2009. Apart from two specific general matters relating to sentence calculation the Act, does not specify what guidelines the council must produce.
There is already a power for the Secretary of State or the Court of Appeal to refer to the council any matter that it considers the council should consider issuing guidelines on. It is also open to any other person to make representations to the council about guidelines. I have already said that I would expect that the council will consider guidance for the courts in this area, but my noble friends will also appreciate that I am anxious to maintain the independence of the Sentencing Council. I would not want to encourage every Bill coming before the House to have a provision that required the council to issue guidelines on matters affected by it. I am confident that the council will consider the provisions of this Bill and issue any guidance it considers necessary. I hope that my noble friend will understand that reassurance and feel able to withdraw his amendment.
I turn to Amendments 15 and 18 from the noble Lord, Lord Beecham. Are those the ones? That is good. I know that it throws everything into confusion if you move them out of order, but I will do my best. As I said in relation to the previous group of amendments, and particularly that in the name of the noble Baroness, Lady Howe, I understand the concerns about the risk of some offenders ending up back in prison for breaching their supervision conditions and I understand why a number of noble Lords have expressed concern about this. The approach taken by these amendments is somewhat different from that taken by the noble Baroness, Lady Howe, in the previous group in that rather than remove the option of committal to custody, they insert a provision which requires the committal to be a last resort after all other means of dealing with the breach have been exhausted by the court.
As I have outlined already, there are a number of steps to reach before the offender will be committed to prison. So there is an option for courts to take no action at all before they consider the four sanctions available to them. There is no hierarchy of sanctions here. It is for the court to decide what the most appropriate sanction is for any particular breach of conditions. Of course, committal to custody is an onerous sanction, but the courts will be aware of this and will take that into account in deciding the appropriate and proportionate response to any breach.
It is not necessary to set out the concept of the use of committal as a last resort and I would point out that it is not clear exactly what that would mean. I also suggest to the noble Lord, Lord Beecham, that Amendment 18 is unclear about what amounts to exhausting all other matters. Does it mean that a court must first use the option of imposing no sanction, then a fine for a further breach? It seems simply to be impractical and unduly restrictive on the discretion of the courts. There will also be offenders who will fail to comply with conditions in such a way that will justify committal to custody as a first response. I suggest to the noble Lord that we have some faith in the ability of the judiciary to make reasoned, proportionate and sensible decisions about breach, and I ask him not to move his amendments.
Having listened to the debate and heard the tenor of my reply, I hope that the House will believe the point that the noble Lord, Lord Beecham, made that there is not a great deal of difference between us on this. I hope that I have demonstrated that in the way that we are approaching this matter we are providing the supervisors at every stage of this process with a great deal of discretion. However, we must face up to the reality that there will be those who, by their response to the assistance that they are given, will provoke the only response that we can make—to return them to prison. I hope, however, that it is also clear that we provide this wide discretion. This area is not a matter of punishment but real assistance to those who are willing to receive it. There should be a real commitment by society to make it clear to those who are in this process that we mean it and that we expect them to mean it too. I ask Members to withdraw their amendment.
My Lords, before my noble friend responds, I should deal with the terrible slur from the Front Bench about the narrowness of my bedtime reading. In fact, my bedtime reading at the moment consists of Caroline Shenton’s book, The Day Parliament Burned Down—a wonderful book that the Minister himself recommended to me.
My Lords, first, I am grateful to my noble friend for indicating that he will consider Amendment 16 and come back to the House on it at a later stage. I am also grateful for his assurance that he has great confidence that the Sentencing Council will indeed publish the guidelines, and I quite understand his reason for not wishing that to be included in the statute because of the danger of compromising that body’s independence.
As to the lead amendment in the group, while I completely appreciate the Minister’s position that “may” is discretionary—I have no doubt that my noble friend Lady Hamwee, notwithstanding her additional bedside reading, will confirm my view when she has considered the response—I still feel that setting a test for the use of discretion might be helpful. Perhaps the Minister will consider that also. I beg leave to withdraw the amendment.
Amendment 13 withdrawn.
Amendment 14 not moved.
Tabled by Lord Beecham
15: Clause 3, page 3, line 39, at beginning insert “subject to subsection (7A),”
My Lords, I have to reassure the Committee that my bedtime reading does not consist of “50 Shades of McNally”.
I regret the dismissal of the purpose of my amendment, even if the wording might be improved, because it is important, as the noble and learned Lord, Lord Woolf, said in another context and as I reminded your Lordships, that a declaratory phrase be used to clearly indicate that the court should not be quick to impose even a 14-day sentence. It should be implemented only after full consideration of such a measure. The experience of committal for breach for young offenders, to which I have alluded, lends some force to the suggestion that a clear message be sent that such a provision ought not to be lightly adopted. Not all benches would do that in any case, and obviously the court on which my noble friend Lord Ponsonby sits is not cavalier in its approach, and I doubt whether many courts would be. Nevertheless, a declaration of the sort suggested would have been helpful. However, in the circumstances, I shall not move the amendment.
Amendment 15 not moved.
Amendments 16 to 18 not moved.
Clause 3 agreed.
Moved by Lord Beecham
18A*: Schedule 2, page 23, line 27, at end insert—
“(1A) An offender subject to a supervision order under section 199 (unpaid work requirement) shall not be required to work unpaid for a private sector employer.”
My Lords, the amendment relates to new Schedule 19A, which deals with supervision default orders and incorporates new provisions in the Criminal Justice Act 2003. The amendment addresses the issue of the unpaid work requirement embodied in new sub-paragraph (2)(a).
It is a straightforward amendment that might not be necessary. To be frank, I do not know the Government’s current thinking or, for that matter, the present state of the law. However, if unpaid work is to be required it should not be to the profit of a private sector organisation that is in the business of, perfectly legitimately, generating profits. If unpaid work is to be done, it should be for a public body or a social purpose. Obviously it is important that people have the opportunity to develop skills. It is also good that the discipline of work should apply. That is very much part of the rehabilitation process, which is not always easy to achieve. Unpaid work might be very helpful in that respect. However, I repeat that it would be wrong if that work were to the financial advantage of a profit-making organisation. One could well envisage placements with voluntary organisations, local authorities or whatever, which would be perfectly reasonable and satisfactory.
I hope the Minister can assure us about that. Otherwise, we might have to return to this issue on Report because it is an important point. We hear too much of what can only be described as bogus apprenticeships, shelf-stacking and the rest of it under the Work Programme. One does not want to see that kind of work, particularly if it is unpaid, being imported into this agenda. It is desirable that the range of activities that might be encompassed within such a programme benefits the offender and perhaps society. It would be wrong if financial benefit was thereby given to a private business. I beg to move.
My Lords, I thank the noble Lord and I can from the outset assure him, as is clear in all these matters, that the objective is not for any operator to make profit from such work. My understanding of the purpose of the amendment is that it would prevent any offender who is carrying out unpaid work as a sanction for breach of a supervision requirement from doing that unpaid work for any private sector organisation. I would make a number of points in response to the noble Lord.
First, as noble Lords will know, we intend to open up the delivery of unpaid work, along with other services for offenders in the community, to a wide variety of organisations. This will include the private sector. However, the model for private sector organisations’ delivery of unpaid work would, I should make absolutely clear, not involve the offender working directly for them. The private provider would be responsible for organising the community work and supervising the offender’s progress. Unpaid work is intended to be of benefit to local communities. The private provider would make arrangements with a local authority, community group or charity for the actual work to be carried out. The private provider may also subcontract another organisation to deliver the unpaid work. This may be particularly important for women offenders or offenders with particular needs, such as learning disability. In these cases a smaller organisation within the community with the relevant expertise is much better placed to arrange the unpaid work.
However, the amendment might prevent private providers even from making arrangements with other bodies to deliver unpaid work. Consider the case of a private provider with responsibility for supervising offenders carrying out unpaid work and that wants to make arrangements for placements with a local charity or community group. The amendment could prevent the private provider from doing so, although I am sure that this was not the intention of the noble Lord, Lord Beecham, in tabling the amendment.
Unpaid work can fulfil a number of purposes. As part of a community order or suspended sentence it provides a credible punishment, but it can also help offenders to learn new skills or disciplines of work. The noble Lord, Lord Beecham, raised this important issue. Too often offenders are looked at in a particular way, but some lack the basic ability to turn up at a given time to serve a particular number of hours. We need to help develop these basic skills and mindsets.
Unpaid work is also reparative, allowing offenders to pay back the harm done by their crimes to the wider community. This is equally true of unpaid work carried out under supervision default orders. It is a sanction for the breach, but this is not to say that it cannot also support the offender’s rehabilitation, or allow them to put something back into the community they have harmed.
My point here is that unpaid work needs to be meaningful, whether it is carried out as part of a community order or as a sanction for the breach of supervision requirements. Even if it is imposed as a sanction for a breach, the work needs to be of sufficient quality. This remains true whether the provider is a private sector organisation, a charity or the public sector. For this reason I do not believe this amendment’s singling out of private sector organisations to be the right approach. The key issue is ensuring that whoever delivers unpaid work does so to the appropriate standard. We will ensure that our new arrangements deliver this. For these reasons I hope the noble Lord will see fit to withdraw his amendment.
My Lords, I cannot say that I am terribly happy with the noble Lord’s response. It seems to me that there is almost a moral issue here about what is in effect the exploitation of unpaid labour. There is already some concern about the degree to which this now forms part of the process of imprisonment. Bringing in unpaid work has a potential impact on competitor organisations that do not have the advantage of cheap labour, or as in this case unpaid labour. If private sector employers are to be engaged in the process of assisting rehabilitation by providing work—and there is no reason why they should not be—it is incumbent on them to pay for that labour. There is no reason why they should not pay at least the minimum wage. It seems wrong that they should benefit from this process.
I regret the Minister’s response. I invite him to think again about this, as it is not satisfactory. Otherwise we might have to return to it on Report, because it strikes me as a wholly inappropriate response. There are many opportunities outside unpaid work in the private sector that would encourage the rehabilitation that we all want to see. The Government should rethink their position on this issue.
My Lords, perhaps I may clarify this. The noble Lord’s point about paying someone who is caught up in one of these arrangements or rehabilitation schemes is a slightly separate one. I emphasise that the amendment as tabled would prevent the private sector from providing any kind of service as part of the rehabilitation process. I have made the point, which I wish to underline, that the private sector organisation is there not to make any profit. As I have said, the person actually performing this particular arrangement within the community would be doing so as part of their rehabilitation. The issue about whether that person should be paid or unpaid is a slightly separate matter.
As the noble Lord has said, we will come back to this. For the benefit of the Committee I would like to clarify that many offenders are currently subject to unpaid work. Currently, around 60,000 offenders have successfully completed community payback sentences, for example. That is 7 million hours of work on projects that directly benefit local communities. To be clear, the intention is that any unpaid work is of benefit to the community and to the individual as part of their rehabilitation process. The underlying objective is not for any provider, whether private or otherwise, to make a profit from that arrangement.
I am grateful for the noble Lord’s most recent remarks, although the points that he made did not really come across when he previously addressed the matter. There is perhaps not the great difference between us that I had perceived. However, it would be better, if the noble Lord agrees, to go back and look at how the Bill might be worded to deal with this situation, which I now apprehend does not really divide us.
I am well aware of community payback schemes, and I see them in my own ward. They are very valuable and seem to me to be the right approach, although not necessarily in exactly the same form. I sense that really we agree about the notion of people carrying out work for a profit-making organisation on a profit-making project, in which case perhaps the noble Lord would look again at the amendment and see whether we can come up with something on which we can agree. Having said that, I beg leave to withdraw the amendment.
Amendment 18A withdrawn.
Schedule 2 agreed.
House resumed. Committee to begin again not before 8.28 pm.