Schedule 1

– in a Public Bill Committee at 4:00 pm on 10th February 2009.

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Schedule to the Street Offences Act 1959

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 248, in schedule 1, page 107, line 22, after ‘practicable’, insert

‘and in any event within 24 hours’.

The amendment seeks to probe how long someone can be detained under the schedule before being brought before a court. When the measure was originally introduced in the Criminal Justice and Immigration Bill, the relevant schedule provided that an individual in breach of a rehabilitation order could be detained for a maximum period of 72 hours before being brought before a court. That was controversial enough at the time. The Joint Committee on Human Rights said in its report on that Bill, at paragraph 1.55 of the fifth report of Session 2007-08:

“However, we are concerned that these measures may in fact lead to the detention of women for up to 72 hours for failing to attend a meeting, and in fact may eventually lead to their imprisonment for failure to comply with the terms of court orders.”

The Minister clarified the latter issue—he cannot envisage a situation in which merely not turning up to meetings or having to be arrested because of not responding to a summons would lead to imprisonment—but it was a fact that the women could be detained for up to 72 hours under those provisions. As I understand it, in this  Bill there is no such 72-hour limit. In fact, it says that an offender can be detained for an open-ended period of time before he or she must be brought before a court. The Bill simply states that he or she must be produced “as soon as practicable”.

The Minister will be aware that article 5 of the European convention on human rights is engaged in any indeterminate detention. We are not dealing with control orders or terrorists or anything like that, so it is necessary for the Government to explain why there is no time limit in the Bill. Why could the individual detained for breach of a rehabilitation order not be brought to a court within, say, 24 hours, as proposed in my amendment? That is what I am proposing. I am sure that the Minister will be able to answer that.

While I am on my feet—I hope to avoid a schedule stand part debate—I shall deal with one other issue and make two points on the approach in the schedule. First, on the definition of a “reasonable excuse”, at the moment the Government have provided that, if an individual

“has failed without reasonable excuse”— the Minister has used that wording himself—

“to comply with the order...The court...must revoke the order...and...may deal with the offender”

“in any way” that the court would have been able to if he or she had been convicted of the original offence.

That much I understand, but there is a problem, because the consequences of the original order are rather uncertain for the individual subject to it. If someone does not turn up to the meeting, the question of whether they are brought back before a court depends essentially on whether their supervisor is of the opinion that they failed to comply with the rehabilitation order without reasonable excuse. There is no attempt to define what a “reasonable excuse” might be. Given that the sort of people who may be subject to the orders—as I think has been acknowledged—are likely to be vulnerable and leading chaotic lives, which may include drug dependency or severe economic deprivation, it is unreasonable not to provide a clearer definition of “reasonable”. Even if the Minister thinks it is reasonable, there is a question of legal certainty, in which people subject to criminal sanction are entitled to know—to have a clearer idea at least—what part of their behaviour is likely to lead them into trouble and a possible conviction. I would be grateful if the Minister could clarify that.

I want to make the point that I was in the middle of making when Mr. Bayley, who was in the Chair, said that it would be best made under schedule 1 stand part, rather than the clause that brought in the schedule. Although the Minister heard what I said about the impact of compulsory rehabilitation, I would be grateful if clarified the basis on which compelling rehabilitation is likely to be effective, especially in the absence of, or in contradistinction to, voluntary rehabilitation involving properly funded resources and people outside the criminal justice system seeking to engage with those vulnerable individuals.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Amendment 248 seeks to impose an absolute limit of 24 hours on the period that the police would be able to detain an offender following their arrest for a breach of the new rehabilitative order that we intend to introduce in clause 16. Detention in these circumstances may be necessary, as we discussed earlier,  in order to ensure that an offender who has not only breached a court order but ignored a summons to appear at court can be brought before a court to be re-sentenced for the original offence of loitering or soliciting for the purposes of prostitution.

The hon. Member for Oxford, West and Abingdon is correct. When the provisions for the order were introduced in the Criminal Justice and Immigration Bill, they allowed the police the power to detain an offender arrested for a breach of an order for up to 72 hours. The hon. Gentleman will recall, as I do, that that raised some concern among hon. Members. We have acknowledged that, and paragraph 9 will now oblige the police to bring the offender before a court “as soon as practicable”. We are confident that that will provide sufficient safeguards against undue detention without imposing an upper limit with which, in certain circumstances the police, through no fault of their own, would be unable to comply.

Let me give the hon. Gentleman and the Committee an example. If an arrest was made on a Saturday afternoon, the police might not be able to bring the offender before a court until Monday morning at the earliest. In such circumstances, 24 hours would not be a practicable time limit to set. I have stressed as often as I can in discussions on this matter that it will be a last resort for the police to detain offenders so that they can enforce the orders where they have been breached. We accept that there must be limits on the power to detain, but we consider that the requirement for the person to be brought before the court “as soon as practicable” is sufficient to prevent the police from detaining the offenders for unreasonably lengthy periods. In other words, it gives the police time to deal with circumstances such as when an arrest takes place at the beginning of a weekend but when the court might not be sitting until Monday. It covers those situations. By including the words “as soon as practicable”, the measure specifies an end limit in terms of hours. It has to be “practicable” and it has to be “as soon as”.

I understand the concerns expressed by the hon. Gentleman, but he must accept that if we are to introduce this order, it is necessary to strike a balance between the disproportionate use of power against those involved in street prostitution, and the need to ensure that the orders can be effectively enforced. We believe that we have struck the right balance, and that the provisions ensure that the power will be used appropriately.

The hon. Gentleman asked what would constitute an unreasonable excuse for failing to comply with a rehabilitation order. “Reasonable excuse” is an established term. It is used in existing legislation in relation to breaches of community orders, for example, so it is understood. Ultimately, it will be for the court to decide whether the offender has a reasonable excuse for failing to comply with the order. If an offender was unable to attend a meeting because of illness, for example, but they could provide evidence in the form of a doctor’s note, that would be considered a reasonable excuse.

I think the hon. Gentleman is perhaps seeking—either setting it out now or in the Bill—a whole series of scenarios or descriptions of what would constitute a reasonable excuse. The reality is that there will be as  many excuses as there are people who breach the order, so we do not want to be too prescriptive. We want to give some discretion to both the supervisor and the court. We believe that, particularly in the case of the court, they would understand what was meant by reasonableness. We would not want to make a list of acceptable excuses, because some of the people receiving the orders will not have signed up to them themselves and will not need any encouragement to find ways to circumvent them. We do not want to be too prescriptive; we want to leave it to the discretion of the courts in particular.

Photo of Evan Harris Evan Harris Shadow Science Minister 4:15 pm, 10th February 2009

I understand the Minister’s point and his reasons, and I am grateful to him for setting them out so clearly. The difficulty is that some people might not turn up to the meetings because they are in acute heroin withdrawal and need a fix. It is a key question whether that will be considered a reasonable excuse. If not, people will be penalised for drug addiction when the whole purpose of the rehabilitation is, I guess, to track them into treatment services. Although I accept and understand the Minister’s reasons for not giving a list, I think that people out there want to understand in that clear, obvious example what the Government’s intention is in establishing the statute. It is likely that those circumstances could arise several times.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The hon. Gentleman refers to a particular situation in which someone who is dependent on drugs might find it difficult to comply with an order, but as I explained earlier, the suitability of a supervisor for an order will depend very much on the needs of the woman in question. If she has a drug dependency that affects her life in the way that he described, it seems appropriate that she should be referred first and foremost to someone with expert knowledge about drugs who could help her end the habit. If so, I would expect them to have a good understanding of how drugs can get in the way of people’s lives. That might well constitute a reasonable excuse.

In the same circumstances, if having discussed the options and understood them, the woman decides to breach the order for some other reason, that would certainly mean that she ran the risk of falling foul of what is a reasonable excuse. It would depend on the circumstances, but we are not talking about someone who deals only with generalities; we are talking about seeking out experts and practitioners who can give the person the support that they need. That is the whole point of the order.

The hon. Gentleman also asked why we do not require the offender’s consent. The reality is that for some offenders, a fine may be an easy option. We know what will happen, because it happens to now to some extent. The offender accepts the fine and finds when they are back out on the streets that the only way to pay the fine is to go back into prostitution. We are imposing an order and putting them on the path to rehabilitation, even though they might regard that as a more difficult option, bearing in mind that if they do not comply with the order, it is possible to return to the original penalty, which could be a fine. I do not think that the orders should be regarded as a soft option at all. We should not give offenders the opportunity to pick and choose. That is why we do not believe that the consent of the  offender is necessary in all circumstances. With those remarks, I hope that the hon. Gentleman will feel able to withdraw his amendment.

Photo of Evan Harris Evan Harris Shadow Science Minister

I have only one point to make in reply. Responding to the Minister’s last point, if someone is determined just to be fined, they will breach their order. Obviously, some monitoring will be required to see whether any of that group of people successfully go through the provisions; if none does and they all end up being fined anyway, I accept that there is nothing that he can do under the architecture of the Bill, but we ought to consider whether it is a good use of everyone’s time. I hope that the Government will ensure that there are adequate post-legislative review procedures if the measure passes, so that the obvious problem of making rehabilitation compulsory, with no consent required, is dealt with.

In respect of the amendment, I understand the Minister’s point, but regret that it was not in the explanatory notes. It is clear why he has done what he has done. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 17 ordered to stand part of the Bill.