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Schedule 1 - Supervision requirements

Offender Rehabilitation Bill [Lords] – in a Public Bill Committee at 4:00 pm on 28th November 2013.

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Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 4:00 pm, 28th November 2013

I beg to move amendment 3, in schedule 1, page 20, line 34 at end insert—

(k) a mental health assessment requirement.’.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss the following:

Amendment 23, in schedule 1, page 20, line 34, at end add—

(k) literacy, numeracy and employment training.’.

Amendment 39, in schedule 1, page 21, line 10, at end insert—

‘(4A) An order under subsection (4) shall be made by statutory instrument.

(4B) A statutory instrument introduced under subsection (4A) shall be subject to approval by both Houses of Parliament.’.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I will speak briefly to amendments 23 and 39. I know we are trying to make some progress. What I like is that my hon. Friend the Member for Darlington has written that into the script. She obviously knows us too well.

Part 1 of schedule 1 introduces the list of possible requirements that may be specified as part of an offender’s supervision arrangements following release from a short-term prison sentence. They include measures such as requiring an offender to keep in contact with a supervisor or attend drug appointments. Amendment 3 is a probing amendment to find out why the Government have not included a specific mental health requirement as part of the list and whether they might consider doing so. It provides that a mental health assessment requirement be added as an available supervision requirement.

It is widely recognised that mental health is a pressing concern for people entering the criminal justice system. The Bradley review published in 2009, led by Lord Bradley who spoke on this Bill in another place, reported comprehensively on this issue and highlighted the importance of diverting people away from the criminal justice system and into appropriate treatment.  The Government’s impact assessment for the Bill notes that mental illness is particularly prevalent among offenders serving short sentences to which the new supervision requirements apply.

The Government have made a welcome commitment to investing in liaison and diversion services in custody in order to identify and respond to mental health issues as early as possible in the system. I am sure the Minister would agree that where an offender has already received a short custodial sentence, supervision is then the next best opportunity to assess and respond to mental health needs and, where necessary, divert a person in time before the revolving door leads them back into custody. Could the Minister tell the Committee where the Government thinking is on this issue and whether he will consider the matter further? If he has time, I am sure the Committee would also appreciate a brief update on progress in the roll-out of liaison and diversion services.

Amendment 23 is a basic technical amendment. The schedule gives the Secretary of State the power to add or remove requirements from the list of possibilities given, as well as to amend or make instructions about the requirements. Amendment 39 would make any change to the list of options subject to the affirmative resolution procedure in both Houses. I am sure that the Minister will appreciate that the Secretary of State’s power to decide which of those options are available is quite wide-ranging.

We believe that it would be beneficial for any changes to be brought before Parliament, where the reasons and evidence for removing or adding an option can be clearly set out and agreed to. I would welcome the Minister’s thoughts on those suggestions. For the avoidance of doubt, I feel similarly about the amendment tabled by the right hon. Member for Dwyfor Meirionnydd, which would add an education, employability and training requirement to the list of possible supervision requirements.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs) 4:15 pm, 28th November 2013

I am pleased to say that I can truncate my remarks because of what the hon. Member for Hammersmith has just said. I support amendments 3 and 39, and I think they contain a great deal of common sense.

I turn to amendment 23. Crimes committed by the under-12 cohort tend to be acquisitive theft and handling stolen goods. A fair number of crimes involve the selling of drugs, less serious violence against the person, a small number of sexual offences, and burglaries and robberies. The number of burglars among those in the medium and low-risk category of offenders was nearly 16,000, and nearly 30,000 people in that group were convicted of violence against the person. That is on the lower end of the scale, for obvious reasons.

One has to ask who those offenders are. They are not a compliant group of economically healthy individuals who are free from social problems; they characteristically have multiple problems and factors of disadvantage. According to the Bromley briefings produced by the Prison Reform Trust, the chance of such an offender having been taken into care is 27%, which compares  with 2% of the general population; 49% are likely to have been excluded from school, compared with 2% of the general population; 52% have no qualifications, compared with 15% of the general population; 67% were unemployed at the time of the offence, compared with about 5% of the general population; and, critically, 65% have numeracy and literacy skills at levels below those of an 11-year-old.

The schedule contains a range of programmes that an offender can be required to attend, all of which are aimed at improving his or her chances of being rehabilitated, being educated and eventually, we hope, finding work. There is no condition that an offender must attend a literacy or numeracy class, however. Given that according to staff, the majority of short-term prisoners are illiterate and are abusing drugs, alcohol or both, it is essential that those conditions are addressed. The hon. Member for Hammersmith has partly addressed the question of mental health, which is allied to alcohol abuse. There is provision for attending drug abuse programmes, which is an excellent move, but before an offender can be deemed fit to take part in a pathway to work programme, surely we must deal with the terrible problems of lack of literacy and numeracy.

Schemes such as the excellent Toe by Toe initiative, in which former offenders mentor individuals who have low levels of literacy and numeracy, have been carried out in prisons with great success. The success of the Toe by Toe initiative is, no doubt, due in part to the fact that offenders are likely to identify with a former offender who has found their life of crime to be the wrong pathway and worked their way out of it. A provider of probation services—the hope is that they will be supervised by the public sector, but I will not go into that again—may well be able to contract in services from agencies such as Toe by Toe, which is desperate to work with the community to help offenders to break the cycle of needless, soul-destroying crime.

The Minister will say that the amendment is otiose, to use the time-honoured word that is used only in Parliament as far as I can tell. The point he may well also make is that the list is not exhaustive. That may well be, but—and with the greatest respect—this is an important omission from that list. I urge him, even at this late stage, to accept the amendment.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I shall begin with amendment 3. As the hon. Member for Hammersmith said, the amendment would add to the list in schedule 1 a mental health assessment requirement. As he knows, the same assessment was debated during the Committee consideration in the other place.

The Government’s concerns about the amendment have not changed and I will set out the practical issues we have with it, but first let me acknowledge the importance of identifying and addressing the mental health needs of offenders, as he says. We do need to ensure that offenders with mental health issues do not fall through the net. We know that many offenders have mental health issues, sometimes related to offending and sometimes not.

Providing appropriate intervention and treatment at the right time and in the right place is vital to improving outcomes for people with a mental disorder. The crucial issue is that any assessment should be done at the  earliest possible opportunity. That can mean when a person is arrested, before they stand trial, when they are about to be sentenced and in prison, where every prisoner receives a health check on arrival.

Prisoners identified with a mental health problem after the initial screening are referred for a mental health assessment. It makes little sense, therefore, to introduce an assessment at the very end of the process, as the amendment would do, with top-up supervision.

Our “Transforming Rehabilitation” proposals include a through-the-gate service where providers will engage with offenders before release, and help them to resettle into their communities. The partnership agreement, which the hon. Gentleman will know, between NOMS and NHS England includes an undertaking to work together to support continuity of care. NHS England, which commissions health care, including mental health in prisons, is responsible for ensuring that all prisoners are registered with a GP in the area they will be released to, as well as the transfer of health care records. Providers will be able to support the offender to access the services they need as they return to their communities.

The introduction of resettlement prisons and through-the-gate services, as well as statutory supervision for all prison leavers, will also support better transition from care in custody to care in the community. That is important because probation providers themselves cannot ensure that professional mental health assessments take place, or compel offenders to be assessed. If they are concerned about an offender’s mental state, registration with a GP means that they could recommend that an offender seeks help from his or her GP who would be able, if appropriate, to make any necessary referral.

NHS England’s mandate also commits it to developing better health care services for offenders and people in the criminal justice system that are integrated between custody and community. I would expect providers to support offenders to address any mental health treatment needs as a priority. Engaging with the offender before release means that providers can seek to ensure that provision is available with the help of health practitioners immediately upon release on licence, for the offender to be supported into continuing treatment in the community.

There are, I am afraid, some technical issues with the amendment but I know that the hon. Member for Hammersmith hates it when I dwell on those. I will try not to do so for too long. However, they include whether it is intended to have people assessed without their consent. That matter has a number of problems that he will be able to anticipate. That is a situation much better dealt with by the Mental Health Act 2007 rather than the Bill. It is also not clear how the provision would interact with the well established process for making assessments of mental health under the Mental Health Act, especially when a person does not consent to that assessment.

I do not believe that the amendment is necessary and I fear it may not be practical. There is also a danger that it could be seen as a way to shift the responsibility for addressing mental health issues to someone else further down the line. Neither the hon. Gentleman nor I would want that. However, I hope he is reassured by our commitment to address these issues in the criminal justice system.

I shall now turn to amendment 23 from the right hon. Member for Dwyfor Meirionnydd. He says it would add to the list of requirements what I assume to be a requirement to attend literacy, numeracy or employment training. I entirely agree with the sentiment behind the amendment. It is clearly important that we address these issues as a significant contribution to the rehabilitation of offenders. As he says, literacy and numeracy are key skills in obtaining employment, and gaining employment is one of the best ways that we know to prevent a return to crime. I also agree entirely with what he said about the Toe by Toe project, which is a fine example of its kind and does a great deal of excellent work.

Either by that route or by others, many offenders receive education and training in prison. Sometimes it is the first time that they have attended and achieved any progress or qualifications. The introduction of licence and supervision for those serving short sentences in the Bill, and the other reforms that we are making, will enable that work to continue in the community.

As the right hon. Gentleman predicted, though, I do not think it necessary to make the additions proposed by the amendment to the list of conditions. That is not so much because the list is exhaustive as because attendance at education or training programmes is already covered in licence conditions and the new top-up supervision by condition H in schedule 1, which is the requirement to participate in activities in accordance with any instructions given by the supervisor. It seems clear to me that that requirement already allows for tailored education and training activities. The condition will be crucial to allowing the providers of probation services to develop new programmes and activities to help rehabilitate offenders. I hope that with that clarification, the right hon. Gentleman will withdraw his amendment.

The last amendment in the group, amendment 39, is an entirely straightforward amendment that would require any order from the Secretary of State to change the list of conditions that can be imposed as part of top-up supervision to be subject to affirmative resolutions of both Houses. I have good news on that for the hon. Member for Hammersmith. I can curtail my comments and hopefully be helpful to him simply by pointing out that such a provision already exists in the Bill. Paragraph 16 of schedule 3 to the Bill amends section 330(5a) of the Criminal Justice Act 2003 to add to the list of provisions subject to the affirmative resolution procedure an order under section 256AB(4), which he will of course know is an order to vary the top-up supervision conditions. I hope that with that clarification, he will be content to withdraw his amendment.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I just set that to see if the Minister was still awake. I appreciate his comments on those matters. We think—I am sure that the right hon. Member for Dwyfor Meirionnydd would say the same—that they are important, but I will not press them to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I beg to move Government amendment 8, in schedule 1, page 21, line 26, leave out paragraph (a) and insert—

‘(a) the Secretary of State is satisfied of the matters in subsection (2A),’.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss the following:

Government amendment 9.

Amendment 24, in schedule 1, page 21, line 31, at end insert—

‘(c) the drug test must be administered by a professionally qualified practitioner.’.

Government amendments 16 to 18.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

Government amendments 8, 9, 16 and 17 make certain changes to drug testing after release from custody. It might help the Committee if I start by explaining briefly the existing provisions on drug testing in the Bill. Currently, section 64 of the Criminal Justice and Court Services Act 2000 allows for offenders released on licence to be required to submit to compulsory testing for specified class A drugs where the offender’s conviction offence is on a trigger list. Trigger offences are those crimes most likely to be linked to misuse of drugs and include theft and fraud offences as well as drugs offences.

The current clause 12 expands that existing power to include class B drugs. Schedule 1, which creates the various requirements that can be imposed under a top-up supervision period following licence, provides for an equivalent class A and B testing power for top-up supervision. The supervision requirement replicates the existing trigger list in place for testing under licence. The condition imposed under the requirements is that the offender attends a specified place as and when required by their supervisor to give a sample for drug testing. Positive drug tests can be used by those working with the offender to determine their likely progress with treatment in order to support rehabilitation. They can also be used to support an assessment of the offender’s compliance with the good behaviour licence condition.

Since the Bill’s introduction in May this year, I have considered in more detail the evidence on drug use by prisoners. It suggests, as one might expect, that there is a strong correlation between prisoners who report using class A or B drugs before sentence and those who go on to reoffend, but it also suggests that using the trigger offence as a filter omits about half of all prisoners who are class A users and a majority of those who are class B users. In other words, that could lead to scenarios where a prison governor imposing licence and supervision conditions might consider it appropriate to allow for testing an offender whose drug abuse is linked to their offending, but would not be able to do so. It means that where an offence is not on the trigger list but is linked to the offender’s use of illegal drugs, there is no power to require the offender to take drug tests where that would support their rehabilitation. Similarly, in a scenario where a persistent offender abusing drugs commits an offence that, this time, happens not to be on the trigger list, there is no testing power after they are released from custody.

What these amendments would do is replace the trigger offence threshold with a new two-limbed test. The first part would be whether the offender has a propensity to misuse specified class A or class B drugs and the second part, whether the misuse by the offender of any specified class A or class B drug caused or contributed to any offence of which he has been convicted,  or is likely to cause or contribute to the commission of further offences. That mirrors the threshold in place for the drug appointment also contained in the Bill. It continues to provide safeguards to ensure that testing requirements are not imposed in inappropriate cases through a more targeted threshold for imposing testing requirements.

It may help if I also say something about how the testing requirements are, in practice, imposed. The power to set the condition for both licence and supervision conditions sits with the Secretary of State. In practice, that is and will continue to be delegated to prison governors, who already set licence conditions at the point of release for offenders released from sentences of 12 months or more. The power to impose that will not be delegated to private or voluntary sector probation providers, although they and the national probation service will be able to recommend a drug testing requirement as part of their assessment of offenders before release, in line with other licence conditions, just as probation trusts do now.

Governors already receive, and will continue to receive, national guidance on imposing testing conditions through prison service instructions. We will be issuing revised PSIs once the “Transforming Rehabilitation” operating model takes effect, and will provide detailed instructions to governors on the use of the testing condition as we do now. In the future, the move to a through-the-gate system will support governors in targeting testing conditions on those for whom they are appropriate. Prison staff will complete an initial needs screening when an offender arrives in custody and providers will have access to that to carry out a more detailed assessment and develop a resettlement plan for the offender. That will include an assessment of whether an offender has a dependency on drugs, of whether and how their dependency relates to their offending and of whether testing after release is likely to support compliance with their other licence conditions, engagement with treatment where appropriate and staying away from offending.

I will also deal briefly with amendment 18, which is a minor and technical change to the Bill’s drug appointment provision. Clause 13 will add new section 64A to the Criminal Justice and Court Services Act 2000. Proposed new section 64A(3) currently reads:

“The conditions imposed on the offender’s release may include”.

That is intended to refer to the conditions to which an offender’s release is subject—in other words, the conditions that apply during any period of supervision at any time after their release. However, it could mistakenly be read as referring only to the conditions set at the time of release. That is not the intention. The amendment clarifies the clause accordingly.

Finally, I will deal with amendment 24. That raises the important issue of the quality of drug testing. I am grateful to the right hon. Member for Dwyfor Meirionnydd for raising that—although, come to think of it, I do not think that he spoke to it. In that case, I seek your guidance, Ms Dorries, as to whether I should respond.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire 4:30 pm, 28th November 2013

Minister, you have the lead amendment in the group, so you speak first. I will call Mr Llwyd afterwards.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I will make my comments now and then if the right hon. Gentleman wishes me to come back later, I will do that—[ Interruption.].

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Mr Llwyd, you sit there and I will call you in a moment. The Minister has the lead amendment, so he is speaking.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I will try to deal with amendment 24 and then, if perhaps the right hon. Gentleman disagrees with what I say, he can say so. The amendment, I believe, raises the important issue of the quality of drug testing. I know that he will explain what the amendment does, but it relates to the application of testing conditions for class A and B drugs during the licence and top-up supervision periods.

Drug testing, both compulsory and voluntary, takes place in many parts of society, as the right hon. Gentleman knows, and is administered by many types of professional. The administering of a drug test that entails taking samples of oral fluids, swabs or urine rather than blood does not require medical or scientific qualifications or experience; it is a manual exercise carried out through the use of approved testing kits. If that were not the case, drug testing would not be able to be carried out in a number of environments, for example by the police in the course of an investigation into drug-driving, or as part of the programmes of drug testing at work carried out by some employers. I am not aware of any requirement for people carrying out those tests to be qualified, either medically or scientifically.

Furthermore, interpretation of the results is not to be left to the probation provider. Either the kit itself will provide an instant result, which will be read by a probation officer who has been trained to do so, or the completed test will be analysed by an accredited laboratory, which will provide the result. For drug-testing kits that are read by a probation officer, the result is no more difficult to determine than determining whether a line has appeared on a test card. It does not require a medical qualification. As for laboratory results, the laboratories used are accredited by the United Kingdom Accreditation Service.

Moving responsibility for testing to a medical practitioner, as suggested by the amendment, would not therefore bring any benefit but would bring many complications. Part of the rationale for the drugs-testing condition is that testing can be administered by the probation officer at any time, without warning, when they wish to know whether an offender has been taking drugs. To that end, testing can be done at random intervals, to militate against the opportunity for offenders purposely to avoid a positive result.

Involving a medical practitioner in administering the test would not only build in delay, during which drugs may leave a person’s system or become less easily detectable, but, given the need for an appointment with a practitioner for the test to take place, would also give an offender advance warning as to when any test might take place.

In view of all of that, before the right hon. Gentleman has had a chance to speak to it, I hope that he will not press amendment 24 to a vote.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

In that case, I am comfortable with what the Minister has said. I would take slight issue with him about the purport of what I was trying to bring in with amendment 24. It would not necessarily be an  appointment-based drug test. In the same way as a police surgeon is called in when a drink-driving offence has occurred, there would not be an appointment, but a practitioner would be on call. However, provided no blood is to be taken by an unqualified person I can see no reason to press amendment 24; as it is a question of a urine or saliva sample I am satisfied with the Minister’s response.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I have no point to make about amendment 24. On the Government amendments, I thank the Minister for the information he has given. We welcome the Government’s intention to try to improve the offer of support and services to offenders who are affected by drug use. It is a significant issue in prisons, as the Oakwood report recently reminded us, and a significant driver of crime. Drug use is particularly high among the most prolific group of offenders who tend to serve short sentences, so it is welcome that the Government are looking at ways to combat it.

That said, some concern has been expressed about the detail of the plans. DrugScope, a respected charity in this area, has reported its concern that testing for lower-level drugs may not be value for money, as they do not tend to have the same link to offending behaviour as class A substances. DrugScope refers to a 2008 UK Drug Policy Commission report that said:

“Current evidence suggests that expanding drug testing is likely to result in decreased efficiency (and value for money) and quality being sacrificed to increased quantity.”

The Government’s impact assessment notes that the provisions will come with associated costs, which are estimated at £1 million. What monitoring of the costs and impact, successful or not, is the Department planning? Will the Minister make plans to share that monetary information with Members, so that we can judge the cost-effectiveness and value of the scheme?

The other prevalent concern is whether the necessary services are available to support the introduction of drug appointments requirements and orders. Since the short-sighted abolition of the National Treatment Agency for Substance Misuse, drug treatment services are now competing for the heavily pressured budgets of directors of public health. There is no guarantee of what the provision of services will look like across different regions. What consideration has the Minister made of the services needed to implement the available drug appointment provisions? What efforts are the Government making to ensure that the appropriate provision is in place?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

In relation to the point that the right hon. Member for Dwyfor Meirionnydd raised, as I said, the current practice relates to drug tests that involve samples of urine or saliva and not of blood. Were we to want to pursue blood tests, we would require the necessary qualifications and training for the taking of blood. I hope that sets his mind at rest.

On the point made by the hon. Member for Hammersmith, we have made it clear that only if an appointment is available could that requirement be made. There would first have to have been an assessment that a suitable appointment could be taken before the requirement could be made. I hope that sets his mind at rest.

Amendment 8 agreed to.

Amendment made: 9, in schedule 1, page 21, line 30, at end insert—

‘(2A) Those matters are—

(a) that the misuse by the offender of a specified class A drug or a specified class B drug caused or contributed to an offence of which the offender has been convicted or is likely to cause or contribute to the commission of further offences by the offender, and

(b) that the offender is dependent on, or has a propensity to misuse, a specified class A drug or a specified class B drug.’.—(Jeremy Wright.)

Schedule 1, as amended, agreed to.