Legal Aid, Sentencing and Punishment of Offenders Bill

(Limited Text - Ministerial Extracts only)

Thursday 9th February 2012 Lords Chamber

[Lord Beecham]

My Lords, the Front Benches are occupied by somebody from the lowest levels of the legal profession and somebody who is even lower because, as we were told the other day, he has done only a short period of legal education. I do not know about the Minister, but I find myself oscillating between the very eloquent, articulate and lucid explanations of the various positions. I was totally persuaded by the noble and learned Lord, Lord Lloyd—until I heard the noble Lord, Lord Carlile. Then—with all due respect to the noble Lord, Lord Blair—I was made to think more by the noble Lord, Lord Thomas. On balance, I am grateful that I was not a member of a jury to be addressed by any of these three eminent lawyers because I am not sure we would have reached a verdict even now—at least I would not.

On balance, I am persuaded by the arguments of the noble Lord, Lord Carlile, although I am concerned—as everyone in this House should be—at the very disturbing statistic that the noble and learned Lord, Lord Lloyd, adduced about the number of people held on life sentences in this country being greater than that for the whole of the rest of Europe. That is not something about which the English system should feel at all complacent. Nevertheless, for what it is worth—which is clearly not much—I am persuaded by the argument that the noble Lord, Lord Carlile, advanced. It remains to be seen whether it endorses the position that the Minister will give us in a moment.

[The Minister of State, Ministry of Justice (Lord McNally)]

I thank the noble Lord, Lord Beecham, for those comments. I approach any discussions on Schedule 21 with great trepidation because very early in my ministerial career, I was lured by the eloquence of the noble and learned Lord, Lord Lloyd, into agreeing with him about some of the flaws in Schedule 21, only to be hauled over the coals when I got back to the department and told that this was not departmental policy and I was not to listen to such siren voices.

I think the noble and learned Lord, Lord Lloyd, knows that both the Lord Chancellor and I—importantly, and less so—come instinctively to the view that judging is best left to the judges. This debate has taken place within this context. I am very grateful to my noble friend Lord Carlile for his intervention because he pointed out that what we are debating is where the responsibility of Parliament is in setting a framework, while leaving, properly, to the judges the flexibility to handle that framework.

I am also grateful for the intervention of the noble Lord, Lord Blair, for two reasons. First, he made the unique point—certainly in this Bill—that he was going to shorten his speech because somebody else had made the speech earlier. All I say to the rest of the House is: “Go thou and do likewise”. Secondly, he made the important point that I think will come back again and again in our debates—I wrote it down—that murder is “the crime by which the public judge the criminal justice system” above all others. Therefore, as the noble Lord, Lord Blair, said, it is right that Parliament has a duty to set a framework in these matters.

I take the point of the noble Lord, Lord Thomas, that it may seem an artificial framework, but in putting forward the 2003 Act Parliament allowed judges the necessary discretion to arrive at any minimum term from any starting point, which allows exceptional cases for minimum terms to depart from the norm. It is not as inflexible as is suggested. The 2003 Act puts in place arrangements for all minimum terms to be imposed judicially—something which I think has general approval. However, Parliament took the view at the time that it was right to have statutory guidance on sentencing for murder. The guidance provides for consistency of approach but still gives the court the necessary discretion to deal with each case appropriately.

I note what the noble and learned Lord, Lord Lloyd, said about the Sentencing Council and I pay tribute to its work, but the Government still believe, as Parliament believed in 2003, that it is right that Parliament should remain responsible for sentencing guidance for murder. It is for Parliament to reflect what circumstances should be considered as particularly or exceptionally grave for this, the most serious of crimes. With that explanation, I urge the noble and learned Lord to withdraw his amendment.

[Lord Lloyd of Berwick]

My Lords, I am grateful to the noble Lord and I am particularly grateful to the noble Lord, Lord Thomas. If it is right for Parliament to give such guidance, how did judges get on before 2003? The answer is that they managed perfectly well. The only effect of the rigid 2003 framework has been to increase the average sentence—I repeat the figure—from just over 13 years to 17.5 years. I do not suppose that anyone did an impact assessment before the 2003 Act was passed, but in my submission it cannot be right that we should suddenly increase the average by so large an amount without considering whether the framework is responsible for it and considering again whether that increase is actually justified.

The noble Lord, Lord Carlile, who made the main objection to this suggestion, has said that the tariff provides valuable help to counsel in advising what the likely sentence will be, but how did counsel manage before the 2003 Act? The answer is that they managed perfectly well and could manage perfectly well even today without Schedule 21. I can see that I have not persuaded enough of your Lordships, and in the mean time, I beg leave to withdraw the amendment.

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[Lord Beecham]

Indeed, but the Government have, as I understand it, no real plans to deal with the 3,000 people who are still held on indeterminate sentences. My whole point is that just as the previous Government did not invest in this sufficiently, this Government are in danger of doing the same. Across your Lordships’ House there would be a view that this investment would repay itself in financial terms as well as in social terms.

[Lord McNally]

My Lords, as the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Goodhart, mentioned, IPP was identified long time ago as a train crash in waiting. I take pride that this Government have taken forward this reform. I note that, as always, there are those who say it does not go far enough—and that is the nature of reform. I was also pleased that there was a certain cross-examination of the noble Lord, Lord Beecham, because he is such a reasonable and likeable person that one would think he was going to slip past the responsibility that the previous Administration have to carry for bringing in these reforms.

We are trying to disarm a time bomb and it has to be done in a careful and measured way. This afternoon, we have heard unanimity of views on prison reform. I have to say, in trying to argue the case for prison reform to both Houses and the public at large, it would be easier if the Labour Party, for which I retain a residual affection, had resumed some of its old and traditional campaigning for penal reform, instead of indulging in a kind of “We’re tougher than you” arms race with those who need to be convinced of the case.

That is a fact of modern political life. The Labour Party of Sydney Silverman and Roy Jenkins is perhaps not here any more. Successive Labour Home Secretaries were very keen not have the term “liberal” attached to their term of office. Thus we face a problem such as IPP. We are trying to deal with the issue. The National Offender Management Service prisoner co-ordination group is chaired at director level. It certainly does not meet the catchiness of the request by the noble Lord, Lord Ramsbotham, for a named person, but that group is trying to manage the specific problem of IPP prisoners. The new specification for offender management, which will provide for the prioritisation of resources based on risk, will be phased in from April 2012. It means that the higher the level of identified risk or the likelihood of reoffending, the higher the level of service that will be provided. In particular, that will result in improved targeting of rehabilitative intervention for IPP prisoners.

To take up the point made by the noble Lord, Lord Dholakia, the key rehabilitation stage for those prisoners is being able to demonstrate in open conditions or temporary release that they have learnt new behaviour. NOMS has identified special issues surrounding waiting lists for IPP prisoners who have been assessed as suitable to be held in open conditions. Work is under way to improve the speed of allocation to open prisons, and a temporary release policy is being reviewed to consider whether suitable prisoners might be given access to temporary release from closed prisons.

The Government took the view from an early stage that IPPs must be replaced, and we have brought forward proposals in the Bill to do so. Once those provisions are commenced, no further IPPs can be imposed, even for previous offending. That is a major step forward. We are now concerned with those who have or will receive an IPP sentence prior to abolition. A range of amendments have been tabled on the subject, which we are now debating. The noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, have tabled amendments proposing that the Parole Board release tests be changed. Their amendments also propose the conversion of current IPP sentences to automatic release sentences; that cases are referred back to the Parole Board every six months; and that the Secretary of State should be required to demonstrate that he has made programmes available to prisoners who are refused parole.

The amendment from the noble Lord, Lord Wigley, proposes that those offenders should either have access to a relevant rehabilitation programme or that their sentence be rescinded. By that, I presume he means that they should be given automatic release if programmes are not available. The noble Lord, Lord Ramsbotham, and other noble Lords have asked through another amendment for the Government to plan release for those prisoners. I should make it clear that, as the statute stands, the Government could not implement any such plans, because the power to direct release would remain with the Parole Board. Again, a conversion to automatic release would be required.

Let me start with the question of the conversion of IPP sentences. We do not think that it is right or appropriate retrospectively to alter sentences that were lawfully imposed by the court simply because a policy decision has now been taken to repeal that sentence. That is what would be required to make release automatic for those prisoners. Generally, sentences already imposed are not substantively altered by subsequent legislation. In this case, it would be particularly difficult, as the court would have to impose the sentence with risk management issues in mind.

Several of the amendments relate to the availability of programmes for IPP prisoners. There is rightly concern that those currently serving IPP sentences should be supported in progressing their sentence and achieving release on licence. The National Offender Management Service is using a range of measures to improve the progression of those prisoners through sentence, including improvements in assessment, sentence planning, delivery and the parole review process. We continue to monitor outcomes to ensure that further improvements are identified and implemented.

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[Lord Wigley]

Before the noble Lord comes to a conclusion, perhaps I may press him on one matter. He has given a list of steps that are currently being taken. When does he assess that all those who are currently being held back on IPP because of the non-availability of courses and rehabilitation will have been cleared? Have the department or the Government set themselves a target for getting this done?

[Lord McNally]

I do not think so, my Lords. I do not think that it would be sensible to go into such targetry. We are talking about individuals of whom individual assessments will be made. As I said, we are disarming a time bomb; we are looking at a backlog of, in many cases, extremely dangerous prisoners. Therefore, it is not just, as someone pointed out, a matter of throwing the gates open; this has to be a managed process. However, I hope that I have made it clear that that process is being managed—a point made by the noble Lord, Lord Ramsbotham—and that we are trying to target resources to make sure that this is carried forward with due urgency.

[Lord Ramsbotham]

Is the group that the noble Lord mentioned making plans for every IPP prisoner or is it drawing up general plans for others to follow?

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[Lord McNally]

I do not know the detail of how the group is managing its work, but I do know that we are bringing forward a coherent programme to deal with what I readily acknowledge is one of the problems to which the noble Lord, Lord Wigley, and others referred. In some of these cases, there was a definite and horrible Catch-22 situation for prisoners. They were being asked to prove their fitness for release by carrying through certain programmes but were then told, “By the way, those programmes are not available”. That Catch-22 was not fair to those prisoners. We are trying to address that problem and focus resources on it. I will write to the noble Lord about whether the group to which I referred is an umbrella strategy group or an action group, but I know that all IPP prisoners will be assessed carefully and, where progress can be made with due concern for public safety, that will happen. I think that we can manage this safely and constructively out of the prison system very rapidly once the legislation is in place.

I should also say that parole hearing processes have become more streamlined, with reviews made through a combination of written evidence and oral hearing, and significant resources have been deployed to increase the ability of the Parole Board to increase its throughput. That has significantly reduced backlogs and significantly increased the number of parole dossiers produced on time. I note the suggestion that prisoners should be referred back to the Parole Board every six months. The maximum period that can elapse between the post-tariff review hearing is two years. All decisions on the timing of the next review are based on the individual circumstances of the particular case. Review dates are determined taking into account the extent and nature of the outstanding work that the prisoner needs to do to address his or her risk factors, and where necessary the testing and monitoring needed to demonstrate the impact and efficacy of the work done to address those risk factors.

A fixed period of six months between review periods would not take into account the prisoner’s individual circumstances, so could be counterproductive as it would require prisoner cases to be reviewed without consideration for the time needed to address the risk factors presented. Currently, review periods of between 12 months and two years are usual, but review periods of less than 12 months have been set.

On the Parole Board’s release test, to which several amendments relate—we are also debating whether Clause 117 should stand part of the Bill—I should say that I do not think it appropriate at this stage to change the release test in this legislation. Clause 117 gives the Secretary of State a power to change the release test, which is set in statute for IPP prisoners and prisoners serving the new extended sentence. We will continue to monitor the progress of current IPP prisoners and will consider the use of the power to change the release test, alongside careful consultation.

The Secretary of State is committed to such prior consultation. It is absolutely not the Government’s intention to use the power to make it harder for prisoners to demonstrate reduced risk. However, by way of safeguards, the use of this power is subject to an affirmative procedure in both Houses. I fully understand colleagues who say that we have not gone far enough and some of the detailed criticisms in this debate. I go back to the point I made in the earlier debate. Often these interventions are crafted compromises and, as such, they will have weaknesses and will not go as far as some would want. However, in getting rid of IPPs we are removing what is, to put it politely, an error of judgment in our penal policy, and we are doing it in a way that disarms the time bomb without raising public concern. I hope, in those circumstances, that the noble Lord will withdraw his amendment.

[Lord Wigley]

My Lords, I have listened carefully to the Minister but his opening remarks remain in the back of my mind—that IPP was something akin to a train crash. The victims of that train crash have been left in the wreckage for an indeterminate time before these issues will be sorted out. Of course, there has to be reference to the Parole Board and it may not be appropriate for some to come out. Surely, when the Government themselves have recognised that the system is not fit for purpose for the future, to continue it for those who are incarcerated without any indication of a timescale is doing them and the whole system a grave disservice.

I accept entirely that my amendment has faults and that there may be a version that meets the theme, which I suspect is accepted on all sides of the Committee, that further work needs to be done by the Government on this.

I very much hope that between now and Report the Minister will seriously consider how the Government can respond to the pressure that has come from so many sides, with many different suggestions for relieving the problem. I hope that they will consider this, and that an amendment will be tabled on Report so that their mind is focused on the issue and we do not allow the people who listened to the debate in this House to have all their hopes snuffed out by the response of the Front Bench. On that basis, I beg leave to withdraw the amendment.

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[Lord McNally]

My Lords, it is very difficult debating against the noble Lord, Lord Beecham. He is such a reasonable man who puts forward such reasonable arguments. I sometimes think that surely he must be on the Lib Dem Benches. But no, there he is.

[Lord Beecham]

Perhaps the Minister should seek treatment for this condition of confusion.

[Lord McNally]

I asked for the House of Commons Hansard for 1 November. I could have picked quite a few but I shall pick one for the House to catch the flavour. As I have said, I have been faced with such unanimity today. Mr Sadiq Khan said:

“No amount of smoke and mirrors can disguise the fact that, by abolishing indeterminate sentences, he”—

the Lord Chancellor—

“is risking the safety of communities in each and every constituency”.—[Official Report, Commons, 1/11/11; col. 793.]

You can imagine him banging the Dispatch Box and a growl of “Hear, hear” coming from behind him. That is the difficulty we have in this. Quite frankly, if the noble Baroness, Lady Mallalieu, or perhaps my noble friend, was dishing out awards for political posturing, it would not be to only one side of the House or to this end of the corridor. I am also a little—

[Lord Carlile of Berriew]

I hesitate to interrupt my noble friend who I know will say that in the spirit of what he said earlier he regards all his Liberal Democrat colleagues in this House as entirely reasonable. But this is a bicameral Parliament. What are we to read into the fact that, as it happens in this House as we debate this important matter, there are seven Liberal Democrats on the Government side of the House and one Conservative Peer, who deserves credit for being here. If the Conservative Party is really committed in the way in which he has explained from that quotation, should its Peers not be here to say so?

[Lord McNally]

That perhaps is why my noble friend is on the Back Benches rather than enjoying the pleasures of coalition government. He will also know that—

[Lord Carlile of Berriew]

What is that supposed to mean?

[Lord McNally]

I am sure that my noble friend’s comments will be noted in the proper places, particularly at reshuffle time.

There will always be debates about whether or not sentences are deterrent. I am not usually in favour of mandatory sentencing and deterrent sentencing, but it is hard to deny that deterrent sentencing could have an effect. It is not just a matter of some barrack-room lawyer; a hardened criminal would know the consequences of reoffending. I share a lot of the concerns about putting declaratory sections into Bills, but sometimes they have their place.

This clause introduces a new mandatory life sentence for an offender who has committed a second very serious sexual or violent offence. Both offences must be so serious as to merit a determinate sentence of 10 years or more. The offence must also be contained in Schedule 15B to the Criminal Justice Act 2003, which is inserted by Schedule 16 to this Bill. Schedule 15B contains the particularly serious offences that were in Schedule 15A to that Act. Previous Schedule 15A convictions make offenders eligible for IPPs and EPPs even if they have not reached the two-year tariff threshold. Schedule 15B also includes further child sex and specific terrorism offences, and the offences of causing or allowing the death of a child or vulnerable adult.

The new mandatory life sentence will affect only those who have committed, on separate occasions, two very serious sexual or violent crimes deserving a custodial sentence of 10 years or more. That is a small number of offenders, but this provision is intended to provide reassurance to the public that very serious repeat offenders of this type can expect to be held indefinitely in prison.

[Lord Thomas of Gresford]

Perhaps the Box can have the chance to deal with this question. Has any analysis been carried out as to how many people would be liable to a life sentence for committing an offence that is not subject to a life sentence at the moment? It seems that they would be liable to a life sentence if the maximum was only 10 years. Has an analysis been carried out of how many offences in the schedule do not carry a life sentence?

[Lord McNally]

My Lords, an impact assessment was made and I think they were talking about 20 cases a year.

[Lord Thomas of Gresford]

That is not quite the point that I am making. It may be that only 20 people would be sentenced to life imprisonment, but would they be sentenced to life imprisonment under this clause, when for the actual offence that they had committed, they could not receive a life sentence? In other words, many serious offences carry life sentences; some do not. I would be grateful for an analysis as to how many would not have a life sentence were it not for this clause.

[Lord McNally]

As far as I understand it, the second serious offence would carry a life sentence.

[Lord Thomas of Gresford]

That is not what it says, as I understand it—perhaps the Box can help him.

[Lord McNally]

That is as I understand it, but I will write to the noble Lord if I am wrong. The other point that has been made—but of course if you try to be reasonable, you are derided—is that the courts are exempted from imposing the mandatory life sentences where they believe it is unjust to do so in all circumstances. It is the policy intention that offenders who have committed two serious offences not carrying life sentences will be liable to the mandatory sentence. However, we cannot at this moment assess the likely numbers that would be affected by that.

As I said before, we have a sense of schizophrenia about this. Perhaps I may finish with a quote from Sadiq Khan:

“Through their “two strikes” policy, the Government absolve themselves totally of any responsibility to identify the serious, violent offenders who are most likely to reoffend. That should be done at the time when the first sentence is handed down for the commission of a heinous crime”.—[Official Report, 1/11/11; col. 796.]

There is not much sense of rehabilitation or reform there. We have to deal with a serious set of reforms and what we get is headline-grabbing attacks on the basis that we are going to let out violent criminals and the rest of it. That is why I hope that some of the unity that was shown earlier about penal reform will resolve itself around support for the Government as we try to manage these proposals through the House.

[Lord Clinton-Davis]

I am much obliged to the noble Lord. I am totally unconvinced by the arguments put forward here, and not for the first time. When is the Minister going to address the issue that has been raised around the Committee?

[Lord McNally]

When is the noble Lord going to go down the corridor and talk to Sadiq Khan and the other spokesmen from the Labour Party and engage in a serious debate about penal reform?

[Lord Lloyd of Berwick]

My Lords, I am grateful for the support of those who have spoken, particularly the noble Baroness, Lady Mallalieu, with her reference to political posturing, which to me seems to be what this clause really is; on this occasion for the support of the noble Lord, Lord Carlile, for which I am always grateful, and for that of the Official Opposition. But once again it was my noble friend Lady Stern who put her finger on it with those extraordinary statistics that she gave us of the comparison between those serving life sentences in England and Wales and all other countries. We seem to have a thirst for life sentences, and that bears out the only statistic that I gave earlier. I shall say it again: we have more people serving life sentences and indeterminate sentences than the whole of the rest of Europe put together.

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Moved by

[Lord McNally]

179A: Before Schedule 16, insert the following new Schedule—
“SCHEDULEAmendments of the Criminal Justice Act 2003: transitional and consequential provisionsPart 1Transitional provisions1 The Criminal Justice Act 2003 is amended as follows.
2 After section 267 insert—
“267A Application of Chapter 6 to pre-4 April 2005 cases
Schedule 20A (which modifies certain provisions of this Chapter as they apply to persons serving a sentence for an offence committed before 4 April 2005) has effect.”
3 After Schedule 20 insert—
“SCHEDULE 20A Section 267AApplication of Chapter 6 of Part 12 to pre-4 April 2005 cases1 In this Schedule—
“the 1991 Act” means the Criminal Justice Act 1991;
“the commencement date” means the date on which section (Simplification of existing transitional provisions) of the Legal Aid, Sentencing and Punishment of Offenders Act 2011 comes into force.
2 Paragraphs 3 to 9 apply in relation to any person serving a sentence for an offence committed before 4 April 2005, whenever that sentence was imposed (see section (Simplification of existing transitional provisions)(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2011).
3 (1) Any relevant period is to be treated, for the purposes of section 240ZA, as if it were a period for which the offender was remanded in custody in connection with the offence.
(2) “Relevant period” means any period which would (but for the repeal of section 67 of the Criminal Justice Act 1967) be a relevant period within the meaning of that section (reduction of sentences by period spent in custody etc).
4 Section 246 applies as if, in subsection (4)—
(a) the reference in paragraph (a) to section 227 or 228 were a reference to section 85 of the Sentencing Act;(b) the reference in paragraph (d) to paragraph 9(1)(b) or (c) or 10(1)(b) or (c) of Schedule 8 were a reference to paragraph 4(1)(d) or 5(1)(d) of Schedule 3 to the Sentencing Act;(c) in paragraph (g)—(i) the reference to section 246 included a reference to section 34A of the 1991 Act,(ii) the reference to section 255(1)(a) included a reference to section 38A(1)(a) or 39(1) or (2) of the 1991 Act, and(iii) the reference to section 255(3) included a reference to section 38A(3) of the 1991 Act;(d) the references in paragraph (h) to sections 248 and 254 included references to, respectively, sections 36 and 39(1) or (2) of the 1991 Act; and(e) in paragraph (i), the words from “in the case of” to “relates” were omitted.5 (1) Where the person has been released on licence under Part 2 of the 1991 Act or under section 60 of the Criminal Justice Act 1967 before the commencement date, the person is to be treated as if the release had been under this Chapter.
(2) In particular, the following provisions apply.
(3) A licence under section 34A of the 1991 Act is to be treated as if it were a licence under section 246.
(4) A licence under section 36 of the 1991 Act is to be treated as if it were a licence under section 248.
(5) Any condition of a licence specified under section 37 of the 1991 Act is to have effect as if it were included under section 250 (whether or not the condition is of a kind which could otherwise be included under that section).
(6) Where the licence is, on the commencement date, subject to a suspension under section 38(2) of the 1991 Act, the suspension continues to have effect for the period specified by the court despite the repeal of that section.
(7) A licence under section 40A of the 1991 Act is to be treated as if it were a licence under this Chapter, except that in respect of any failure (before or after the commencement date) to comply with the conditions of the licence, the person is liable to be dealt with in accordance with section 40A(4) to (6) (despite the repeal of that section) and is not liable to be dealt with in any other way.
(8) Sub-paragraph (1) does not affect the duration of the licence.
6 (1) Where a person has been recalled under Part 2 of the 1991 Act before the commencement date, the person is to be treated as if the recall had been under section 254.
(2) In particular, the following provisions apply.
(3) If the Secretary of State has not referred the person’s case to the Board under section 39(4) or 44A of the 1991 Act, the Secretary of State must refer the case under section 255C(4).
(4) If the Secretary of State has referred the person’s case to the Board under section 39(4) or 44A of the 1991 Act, that reference is to be treated as if it had been made under section 255C(4).
(5) A determination of a reference under section 39(4) or 44A of the 1991 Act is to be treated as a determination under section 256(1).
(6) If the person is released on licence, the duration of that licence is determined in accordance with section 249 (subject to paragraphs 17, 19 and 26 of Schedule 20B).
7 Rules made by virtue of section 42 of the 1991 Act have effect as if made by virtue of section 257.
8 (1) A person removed from prison under section 46A of the 1991 Act before the commencement date is to be treated as having been removed from prison under section 260.
(2) Section 260 applies as if, in subsection (7)—
(a) the reference to an extended sentence imposed under section 227 or 228 were a reference to an extended sentence imposed under section 85 of the Sentencing Act, and(b) the reference to the appropriate custodial term determined under section 227 or 228 were a reference to the custodial term determined under section 85.9 An order made under section 47 of the 1991 Act is to have effect as if it were an order made under section 243.
10 Section 264 applies as if the definition of “custodial period” in subsection (6) included, in relation to an extended sentence imposed under section 85 of the Sentencing Act, one-half of the custodial term determined under that section.”
Part 2Consequential amendmentsRepatriation of Prisoners Act 1984 (c. 47)4 In section 2(4)(b)(i) of the Repatriation of Prisoners Act 1984 (power to provide for prisoner to be treated as having been released) for “section 244 or 246” substitute “Chapter 6 of Part 12”.
Criminal Justice Act 1991 (c. 53)5 In Schedule 12 to the Criminal Justice Act 1991, omit paragraphs 8 to 13 (transitional provisions relating to the coming into force of Part 2 of that Act).
Crime (Sentences) Act 1997 (c. 43)6 Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) is amended as follows.
7 In paragraph 8 (transfers to Scotland)—
(a) in sub-paragraph (2)(a), after “246 to 264A” insert “, 267A and 267B”;(b) in sub-paragraph (4)(a), for “and 249 to 264A” substitute “, 249 to 264A, 267A and 267B”.8 In paragraph 9(2)(a) and (4)(a) (transfers to Northern Ireland), for “and 254 to 264A” substitute “, 254 to 264A, 267A and 267B”.
Extradition Act 2003 (c. 41)9 The Extradition Act 2003 is amended as follows.
10 In section 59 (return of person to serve remainder of sentence), in subsection (11)—
(a) omit paragraph (a);(b) in paragraph (b), for “section 244” substitute “Chapter 6 of Part 12”.11 In section 132 (return of person to serve remainder of sentence), in subsection (11)—
(a) omit paragraph (a);(b) in paragraph (b), for “section 244” substitute “Chapter 6 of Part 12”. 12 In section 153B (return of person in pursuance of undertaking), in subsection (10)(a)—
(a) omit sub-paragraph (i);(b) in sub-paragraph (ii), for “section 244” substitute “Chapter 6 of Part 12”.Criminal Justice Act 2003 (c. 44)13 The Criminal Justice Act 2003 is amended as follows.
14 In section 240A(1)(a) (crediting of periods of remand on bail), omit the words “committed on or after 4th April 2005”.
15 (1) The repeal by section 25 of the Criminal Justice and Immigration Act 2008 of provisions in section 247 of the Criminal Justice Act 2003 comes fully into force.
(2) Accordingly, in paragraph 2 of Schedule 2 to the Criminal Justice and Immigration Act 2008 (Commencement No.2 and Transitional and Savings Provisions) Order 2008 (S.I. 2008/1586), omit “and 25”.
16 Omit section 262 and Schedule 20 (prisoners liable to removal from United Kingdom).
17 Omit section 265(1A) (restriction on consecutive sentences for released prisoners).
Domestic Violence, Crime and Victims Act 2004 (c. 28)18 Omit paragraph 46 of Schedule 10 to the Domestic Violence, Crime and Victims Act 2004.
Police and Justice Act 2006 (c. 48)19 Omit paragraph 33 of Schedule 13 to the Police and Justice Act 2006.
Criminal Justice and Immigration Act 2008 (c. 4)20 In the Criminal Justice and Immigration Act 2008, omit—
(a) sections 20(4)(b), 26 to 28, 32 and 33(1), (3), (5) and (6);(b) paragraph 29(2) to (5) of Schedule 26;(c) paragraphs 8 and 9 of Schedule 27.Coroners and Justice Act 2009 (c. 25)21 In the Coroners and Justice Act 2009, omit—
(a) section 145;(b) paragraph 43 of Schedule 22.Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional Provisions) Order 2008 (S.I. 2008/1466)22 Article 3 of the Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional Provisions) Order 2008 (S.I. 2008/1466) is revoked.”

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[Lord Beecham]

Perhaps the Minister could indicate what assessment has been made of the effect of the new extended sentence provision on prisoner numbers and the time that prisoners will spend in custody, as well as the cost. In so far as the indeterminate sentence will, one hopes, reduce numbers when various changes have been made, this measure is likely, like the mandatory provision, to drive up both numbers and costs. Has an assessment been made of that? If it leads to extra costs, how will the Government manage the process? The noble Lord is to be congratulated on the amendment. The current provisions simply do not make sense in the context of what purport to be the Government’s objectives.

[Lord McNally]

My Lords, perhaps I may clarify the point raised by my noble friend Lord Dholakia. The two-thirds release point applies only to the new extended sentence. The court must specify both the custodial term and an extended licence period when it imposes an extended sentence. The offender is released or can apply for release at the two-thirds point of the custodial term. The extended licence will start when the custodial term is concluded, so offenders will receive an appropriate licence period regardless of the point during the custodial term at which they are released. I listened to my noble friend’s idea about discretion. This is not something that courts would have discretion on. They will decide on the appropriate custodial term plus an appropriate extended licence. Yet, as always with suggestions from my noble friend, I will ponder this one between now and Report.

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[Lord Beecham]

My Lords, on a point of clarification, the Minister referred to the impact assessment disclosing that 2,500 fewer people would be in prison. Does that relate to the overall package or to this particular amendment? That was the point that I was raising.

[Lord McNally]

It relates to the overall package and, in that wonderful save-all term, the long term. As we are already seeing, predicting prison numbers is not an exact science.

[Lord Beecham]

Perhaps not now, but could the Minister advise me on the implications of this amendment in terms of numbers, as opposed to the generality to which he has referred?

[Lord McNally]

I do not have a specific number, but I will write to the noble Lord and make it available to the House.

[Lord Dholakia]

My Lords, I am grateful to my noble friend the Minister for the explanation that he offered. The purpose of my amendment is not to dwell too much on whether it is half or two-thirds of the sentence; all I care about is the need to look carefully at whether the supervision period is affected by the decision. I would be very grateful if the Minister could write to me before Report. It may be that his explanation will suffice in this matter. I beg leave to withdraw the amendment.

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Moved by

[Lord McNally]

179C: Clause 117, page 96, line 3, leave out “an IPP prisoner or an extended sentence prisoner” and insert “a discretionary release prisoner”

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[Lord McNally]

My Lords, if Clause 117 is to stand part of the Bill, Amendments 179C to 179F will ensure that the Secretary of State’s power to amend by order the release test that the Parole Board must follow when considering the release of prisoners applies consistently to all categories of determinate sentence prisoner whose release is determined by the board. Currently, the clause applies to the release test for IPP and extended sentence prisoners but there are some other types of determinate sentence which also include a period of parole eligibility and are subject to the same release test. We think the order-making power to change the test should apply equally in those cases. These amendments therefore propose to extend the order-making power to the other categories of determinate sentence to which it does not currently apply. These are: first, the 1991 Act prisoners serving four years or more who are parole eligible between the half and two-thirds points of sentence; and, secondly, the 2003 Act extended sentences imposed before 14 July 2008, when release between the half and end points of the custodial period is at the discretion of the Parole Board. This is simply about ensuring the order-making power in this clause is applied consistently to all determinate sentences when the same release test is used. I beg to move.

[Lord Thomas of Gresford]

Your Lordships will recall that in connection with an earlier amendment I referred to the existing test—which will continue to apply under this Bill—for the Parole Board to apply in considering whether a person should be released. The existing test is that the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Your Lordships will recall the criticisms that I made of that. In his reply, the Minister said that Clause 117 gives power to the Lord Chancellor to change that test. I am a little bit puzzled, and I ask my noble friend to explain why that power to change the test is in there. Furthermore, I am very pleased that it is, because I think that the present test is neither fair nor just. The power to change the test is in subsection (1), where,

“the Parole Board … must direct the prisoner’s release if it is satisfied that conditions specified in the order are met, or … must do so unless it is satisfied that conditions specified in the order are met”.

I know that my noble friend, as he earlier confessed, is a follower of Blackpool football club, but at the weekend he may have had the opportunity of watching the Wales versus Ireland rugby match at Lansdowne Road. An incident there perfectly illustrates the situation. There was a pile-up over the line and the referee, instead of making the decision and awarding the try which Wales had so clearly scored, called in the TMO and said, “Has the try been scored—yes or no?”. Immediately, that illustrious and brilliant commentator Jonathan Davies, a brilliant player in his own day, said, “He’s asking the wrong question. The question he should ask is: ‘Is there any reason why this try should not be awarded?’”. By asking it as, “Has he scored it—yes or no?”, the referee was pushing the decision over to the TMO; but if he were to ask the second question, he would be taking responsibility by saying, “I am going to award the try unless you tell me that there is a reason why I should not”.

Applying the same approach to the release of a prisoner, the Parole Board should not be asking whether the prisoner has complied with this or that test; it should be asking: “Is there any reason why we should not release this prisoner? Is evidence being produced for us to look at in reaching a conclusion on whether this prisoner can be safely returned to the community?”.

That is the reason why I support Clause 117—in the hope that the second alternative, in subsection (1)(b), is adopted, and that the Lord Chancellor will then very quickly see the necessity of changing the Parole Board’s test to one that is far fairer: “Is there any reason why, after serving the period of the tariff that the judge has imposed”—which is supposed to be what the judge would have awarded by way of a sentence had he taken that course—“this person should not be released?”. I commend this clause and suggest that the power should be exercised very quickly.

[Lord Beecham]

My Lords, this amendment is perfectly sensible. Before we get to Third Reading it would perhaps be helpful, if it is at all possible, to have a clear indication of how the Government propose to proceed. Presumably it will not be long before the affirmative resolution procedure is put into place once the Bill is enacted, and that might just allay some doubts around the House and outside it about what is likely to happen. Subject to that, we certainly take the view that it is sensible to proceed on the lines set out in the amendment.

[Lord McNally]

I am grateful for that. As to what I was watching on Saturday afternoon, being a gentle soul, I take the view that rugby is a gentleman's game played by hooligans. I am not as keen on watching it—the violence is too much. I am glad, however, that everybody has noticed the point of Clause 117. It goes back to what I said before in that analogy about disarming the time-bomb. We need a little flexibility and a chance to see how the present probation rules apply, but this gives the Secretary of State the opportunity to adjust what we are doing in the light of the experience of the overall reform of IPP. I am therefore grateful for the support from all sides of the House and I hope that Clause 117 will stand part of the Bill.

Amendment 179C agreed.

Moved by

[Lord McNally]

179D: Clause 117, page 96, line 8, at end insert—
“(1A) “Discretionary release prisoner” means—
(a) an IPP prisoner,(b) an extended sentence prisoner, or (c) a person to whom paragraph 4, 15, 24 or 27 of Schedule 20B to the Criminal Justice Act 2003 (determinate sentence prisoners subject to transitional provisions) applies.”

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[Baroness Gale]

My Lords, this amendment and Amendment 180B are tabled in the names of my noble friends Lady Royall of Blaisdon, Lord Bach and Lord Beecham.

I begin by paying tribute to Michael and Adam Brown. It is as a result of their campaign that we are here today and are debating this important issue in order that we can protect vulnerable women and men from the very small percentage of people who think that they have a right to hurt the partners they claim to love. In 2007 Michael’s daughter and Adam’s sister, Clare Wood, a resident of Salford, began a relationship with George Appleton, a man she had met through the social networking website Facebook. A year later she ended the relationship but became the target of a sustained campaign of violence and harassment from Appleton. Over the next six months Appleton stalked Clare, sexually assaulted her and threatened to kill her. Then in February 2009 he strangled her, killing her before setting her body on fire. After a six-day manhunt he fled to an abandoned pub in Salford and hanged himself.

Appleton had a long background of violence against women, including repeated allegations and convictions of harassment, threats to kill, and kidnapping one of his ex-girlfriends at knifepoint. Clare had no way of knowing this. Had she had that information, it could have saved her life. I think we would all agree that this is a horrifying story.

My right honourable friend Hazel Blears, MP for Salford, has advocated for this change of law and worked on this amendment, as Michael Brown is a constituent of hers. We need to change the law urgently to save lives.

At the inquest into Clare’s death, the coroner made the following recommendation:

“Subject to appropriate risk assessment and safeguard, I recommend that consideration should be given to the disclosure of such convictions and their circumstances to potential victims in order that they can make informed choices about matters affecting their safety and that of their children”.

Since Clare’s death, her father Michael Brown and brother Adam have campaigned for a change in the law to enact precisely the coroner’s recommendations to give women and men at risk of domestic violence the right to know of any threat that they face. The Respect & Protect: Clare’s Law campaign calls for women and men to be given the right to know. It has received cross-party support and has been backed by Fabulous magazine and Key 103 radio.

In 2009 a report commissioned by ACPO and compiled by Chief Constable Brian Moore of Wiltshire Police advocated the creation of a right to know, but by the creation of a positive duty on the police proactively to disclose information. This is not just a compassionate issue but one with serious public order, health and economic implications. Domestic violence represents 18 per cent of all violent incidents. The cost of domestic violence was calculated to be £15.7 billion in 2008 in public services, loss to the economy and victims. In 2009-10 in England and Wales, 21 men and 94 women were killed by a partner or ex-partner. Over the past 10 years, an average of between 111 and 146 people a year have been murdered by their partner or ex-partner. ACPO estimates that there are 25,000 serial perpetrators of domestic violence in the country. It has the highest rate of repeat victimisation of any crime, with 44 per cent of victims victimised more than once in the past 12 months. Therefore, if we act today we know that we will stop a significant number of repeat abusers and help a huge number of men and women to take control of their personal safety.

The public support this initiative. Polling conducted by Fabulous magazine in the summer of 2011 found that 91 per cent of women agree that they should be given the right to know whether their partner has a history of domestic violence; 84 per cent think that such a change in the law could save lives; and 77 per cent would consider leaving their partner if they found that he had history of abuse.

On 25 October 2011, the Home Office launched a consultation on the introduction of a domestic violence disclosure scheme. This followed a meeting between the Home Secretary, Theresa May, Michael Brown and my right honourable friend Hazel Blears. The consultation paper established the three following options: to continue current arrangements under the existing law; to create a “right to ask” national disclosure scheme; and to create a “right to know” national disclosure scheme. On 27 October 2011, Hazel Blears MP tabled a new clause to the Legal Aid, Sentencing and Punishment of Offenders Bill that would have introduced Clare’s law. The new clause was based on the legal framework established by Sarah’s law, which created a disclosure law for paedophiles living within a locality. Therefore, while the Home Secretary’s consultation on Clare’s law, which has just ended, is welcome, for the law to be changed, legislation surrounding crime and justice needs to be passed. The passage of the Bill through Parliament provides a legislative vehicle to which the change can be attached. At the moment, while there is some common law provision for disclosure, it is unclear and needs clarification. The Clare’s law proposal aims to empower men and women by giving them the right to request this information. A codification of the law will make it easier for men and women to make a request, and provide clearer guidance to the agencies on their roles and responsibilities.

The Hazel Blears clause represents the second option in the consultation. The first option does not offer a change to the current situation and the third creates obligations for the police that might be difficult for them to meet. The second option—a right to ask—gives men and women the opportunity to make a request without putting the police in the position of having to make a disclosure or risk negligence claims. Any change in the law needs a legislative vehicle. The passage of the Legal Aid, Sentencing and Punishment of Offenders Bill offers an opportunity to change the law. As this matter relates to crime and security, any change must be appended to a Bill that deals with either justice or crime prevention. With no other Bill to address these issues on the horizon, this offers the Government an easy way to change the law quickly, before more people are killed at the hands of serial domestic abusers.

Under the consultation put forward by the Government—the second option—a four-step process will take place. After an initial enquiry by A to the police, the police undertake an initial check on the police national database to identify whether any information is held on B. The police then meet A face-to-face to confirm their identity and that of B, to confirm the relationship between them, and to enable A to complete a formal application for disclosure. The police will then conduct full checks on the police database systems to inform a risk assessment for A. The police refer information about B to an appropriate multi-agency setting, probably a multi-agency risk assessment conference, which would then make a decision on whether to disclose the information to A. Such a decision would be informed by the risk assessment and whether appropriate safety measures could be put in place for the applicant. If disclosure was approved, it would be made by the police with an independent domestic violence adviser present to provide support to A, if required.

The introduction of the police national database in 2011 offers the opportunity easily to identify serial perpetrators of domestic violence. The PND gives police the ability to create national markers, such as a domestic abuse serial perpetrator marker, which could flag up prolific and dangerous subjects operating across England, Wales and Northern Ireland. This is a very important subject. I, Hazel Blears and, of course, Michael and Adam Brown, are thankful that we are able to debate this matter today. Debate was prevented in another place as, due to the timetabling on Report, this amendment was not reached.

When can the Government’s response to the consultation be expected? What was the weight of opinion in the replies? I trust the Minister can give an assurance that the Government will support this amendment to bring about Clare’s law. I can assure him that we would welcome further discussions with him, if required, to ensure a positive outcome which would do so much to provide a safety net for these people. I look forward to hearing a positive response from him on this matter. I beg to move.

[Lord McNally]

My Lords, earlier today we gave support to Jane’s law. The noble Baroness referred to Sarah’s law. Now we are discussing Clare’s law. Those all stem from tragedies that have befallen families. The measure may be viewed as a case of slamming the stable door but we are trying to learn lessons from those tragedies and to give the families concerned at least the comfort of knowing that the lessons we have learnt will save others in the future. Therefore, I assure the noble Baroness that we have great sympathy with this proposal. We pay tribute to the campaign that Hazel Blears, the Member for Salford and Eccles, has pursued in co-operation with Clare’s family, and her work in tabling this amendment in the other place.

As the noble Baroness explained, the amendment would place a duty on responsible authorities such as the police, probation and Prison Service to consider disclosing information held in their possession about the relevant previous convictions of any violent abuser to any person deemed by the responsible authority to be at risk. The amendment is born of the circumstances referred to by the noble Baroness, Lady Gale, of the tragic murder of Clare Wood by her ex-boyfriend. Noble Lords will know that the Government have been considering this issue very carefully. The Government are committed to ending violence against women and girls. The fact that approximately two people are killed by their current or former partner each week underlines how serious this issue is, and we are committed to looking at new ways of protecting victims.

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[Lord Stevenson of Balmacara]

My Lords, I support the amendment so eloquently introduced by the noble Lord, Lord Ramsbotham. From what he said, I got the sense that it is really a probing amendment and that he did not expect to receive much support for it. However, he made such a powerful case that I hope the Minister might be swayed to think again about some of these points. As we have already heard in this Committee, it is obvious that many people enter prison without the capacity to read and write, let alone to hold down a job when they come out on release. Therefore, examples such as the Toe by Toe programme should be mandatory. Indeed, it is a pity that the amendment has not specified that it should be a requirement on the Secretary of State.

We have no objection at all to what is being proposed. Indeed, we would regard its prescriptive nature as being of benefit in the sense of tying down, as the noble Lord, Lord Ramsbotham, said, what is required of prisoners—that they should have a full, purposeful and active day, and that every prisoner should undertake something instead of staying in their cells so as to at least become engaged and appreciate what is necessary in order to succeed outside prison. It would therefore also reduce the level of reoffending.

There are some good examples of work with prisoners having been done by private employers. National Grid had a project at Reading in which I was involved in an earlier life, and I thought it was absolutely exemplary. It provided what seemed to be the critical path forward for those due to leave custodial sentences in the sense that it provided them with housing, jobs and training. It started before the prisoners left in order to bring their reading and writing up to speed, and it allowed them to learn a skill—in this case, fitting—which meant that they were able to operate as soon as they left. As I understand it, that programme is still going. The recidivism rate was very small indeed, so the programme was certainly worthy in that regard. It also had the advantage of satisfying a need on the part of employers—they had realised that they were not getting an adequate supply of people to do the necessary jobs, and they found that this programme provided a ready supply.

Therefore, there can be a win-win in what the Government and private enterprise are looking for. Indeed, one might say that it could apply to charities and public bodies and not just to private companies. However, the essential point of the amendment is that, if it is decided that there will be employment from such activities in prisons, it should be done properly so that those who benefit from it have skills and qualifications that are nationally recognised, and it should be done in all cases so that we have a better outcome from the prison element.

[Lord McNally]

My Lords, like the noble Lord, Lord Stevenson, I have had the opportunity to look at some organisations that have become involved in providing work for prisoners and, like him, I am impressed. It is encouraging that those who have taken the risk, as some may see it, of employing ex-prisoners, helping to train them, and doing work in prisons, find it a very fruitful experience.

Sometimes I think that the noble Lord, Lord Ramsbotham, is a little hard on NOMS. I fully accept that it is obvious that the vast majority of the prison estate was not designed for operating work regimes. Many very competent prison governors and prison officers are not equipped to run businesses. That is a given, which makes the idea of work in prisons difficult but not impossible. One of the things that we have tried to do in the past 18 months is to tackle in a practical way the realities to which the noble Lord, Lord Ramsbotham, referred. Several hundred organisations already provide work and training opportunities inside prisons, but many are small and want to do more to attract business.

We aim to provide a competitive package for business. We will make involvement as straightforward as possible and get the commercial model right for both prisons and the private sector, subject to our paramount interest in ensuring security, in line with our legal obligations. NOMS is developing new structures and putting in place the right people to operate in a businesslike way. That includes the recruitment of a new chief executive for the prison industries team within NOMS and a business development manager who will have responsibility for finding new businesses and managing relations with customers.

We are trying to address some of the issues raised by the noble Lord, Lord Ramsbotham, and as of now around 9,000 prisoners are employed in prison industries, which my rough arithmetic makes it to be around 10 per cent, or perhaps just a little over of the prison population. It is clear that there is much to do, but there are great prizes if we can get this right. Clause 118 is central to our plan to achieve our aim to make prisons places of meaningful and productive work where prisoners make reparation. Ensuring that prisoners and those detained in young offender institutions or secure training centres have access to training and can obtain qualifications is important. The Government certainly recognise the importance of this area and agree with the intent behind the amendment.

Let me assure noble Lords that we are already doing much of what we aim to do. Through our desire to increase the amount of meaningful and productive work done in prisons, the Government will give many more offenders the chance to learn the discipline and skills of working. As study after study has shown, offending patterns diminish once employment has been found. However, it is not just through prison working that we aim to reduce reoffending. Experience of a proper working week will be augmented by ensuring that their work links them to the right opportunities to develop the skills necessary to their finding employment when they are released.

We plan to deliver learning bases on clusters of institutions that regularly transfer offenders between them. The learning and skills offer will focus on the needs of employers in the areas into which prisoners will be released, as well as on key issues, such as numerous, literacy and communication skills. Here again, I pay tribute to Toe by Toe, which is a marvellous way of tackling illiteracy—one of the problems that comes through time and again in offending. Decisions on the most appropriate learning and skills offer will be taken locally with the key aim of giving offenders the skills that they need to find and keep jobs and apprenticeships on release. There will be no one size fits all approach, nor should there be. Within this new framework we are retendering the offender learning and skills services—a process that gives the chance to look afresh at how to work with the best range of providers. As well as learning the necessary skills and having the right qualifications, many offenders have barriers to entering the labour market that must first be tackled.

As the Deputy Prime Minister announced in August 2011, from the summer of this year offenders leaving custody and claiming jobseeker’s allowance will have to engage with a work programme provider on release, who will be paid for getting them into work. As well as creating this “day one” service, we are bringing together the claiming of jobseeker’s allowance and the processing of benefits before release rather than after it, so prisoners should have a shorter wait for their first benefit payment, which will help their resettlement. In addition, any prison leaver who claims jobseeker’s allowance within 13 weeks of release will be mandated to the work programme from the point of claim. We will also test, in two work programme areas, the addition of a reducing reoffending payment as part of our payment by results approach, in which we will use a variety of methods in the pilot phase.

We recognise that equipping children under the school leaving age with the skills they will need to succeed in life is vital. There is already an expectation that they will be in education rather than paid work. The raising of the participation age will mean that from 2013 all young people, including those in custody, must continue in education or training until the age of 17, and until 18 from 2015. Young people in secure training centres and under-18 young offender institutions will have access to a full day of education and constructive activity. In secure training centres, young people participate in education or training for at least 25 hours per week. In the under-18 young offender institutions, each young person will receive at least 25 hours per week of education and other constructive activity.

We believe that the amendment is constructive but unnecessary. Section 47(1) of the Prison Act 1952 allows the Secretary of State to make rules concerning the regulation and management of prisons, young offender institutions and secure treatment centres, and the treatment of those required to be detained therein. Subsection (3) states:

“Rules … may provide for the training of particular classes of persons”.

Clause 118 will not change those aspects of the 1952 Act, which cover the same ground as Amendment 181A.

For adults detained in custody, the rule-making powers contained in the Prison Act are augmented by provisions in the Apprenticeships, Skills, Children and Learning Act 2009, including a duty on the chief executive of Skills Funding to,

“secure the provision of reasonable facilities for education suitable to the requirements of persons who are subject to adult detention”,

and, in doing so, to take account of a range of factors such as facilities and equipment. In carrying out this duty, the chief executive must have regard to various matters, including the desirability of prisoners continuing the education or training that they have begun, and making the best use of resources.

I have listened often to—and have always welcomed—the noble Lord, Lord Ramsbotham, championing the concept of making work, training and education a priority. They are the key to rehabilitation. I hope that what I have said has convinced him that, although we may not have achieved all that he desired, we are listening and trying as best we can to move in the direction that he advocates. For that reason, I hope that he will withdraw his amendment.

[Lord Ramsbotham]

My Lords, I am very grateful to the Minister for the care that he put into his response, and in particular for his closing remarks. I am also very grateful to the noble Lord, Lord Stevenson, for his words. As I said, the purpose of the amendment is to encourage something that I very strongly support. I hope that the Minister will be able to assure me that the business manager whom he said would be appointed will be a businessman and not a civil servant from NOMS. I do not decry civil servants who do civil servants' jobs, but we need a businessman in there, and I hope that one will be appointed.

I also hope that one of the first things that the business manager will do is carry out an inquiry with the people who currently provide work in prisons and allow them to tell him frankly of the frustrations and problems that they currently experience when trying to take work into prisons. The person concerned would find that very illuminating. If they take action on those frustrations, many of which I am very happy to pass on to the Minister because I have some censuses here, they would find it much more possible to deliver precisely what the Minister says he wants. If that happens—and, knowing the Minister, I am sure that it will—I beg leave to withdraw the amendment.

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[Baroness Hayter of Kentish Town]

My Lords, as has been set out very clearly, the amendment seeks to ensure that anyone leaving custody gains swift access to the benefits to which they are entitled. We often think that coming out of prison is very positive, but it can be traumatic for people, particularly those with multiple needs. With no financial contingencies, these people usually rely on a benefits system that they experience as complicated, slow and unhelpful. In extremis, some return to crime, as the noble Lord said, because before they went into prison that was their proven source of income. Delays in accessing benefits can lead to financial hardship, stress and an increased risk of reoffending.

The Prison Reform Trust in its Time is Money report found that eight of 10 former prisoners claim benefits, so it is essential that we make sure the process of claiming is as simple and as hurdle-free as possible to give these post-custody people the best chance of staying away from crime.

One report on adults with multiple needs documented the problems that they faced on coming out of prison, including delays of up to four weeks before the first payment, with no explanation; problems with claims made before they went to prison that had to be resolved before any new claim could be made; claims delayed because of no fixed address, as has already been referred to, or other unstable living arrangements; disputes over prison admission and release dates; and problems caused by not closing down a claim on entry to prison, which results in a fraud investigation and the new claim being suspended.

We also know that a third of people in prison do not have a bank account. This makes the payment of a deposit for housing or early expenses even harder to organise on release. Help beforehand and immediate access to benefits are key if the person is not to feel the need to return to using other people's money just to survive.

The report also emphasises the need for help and advice while still in prison—even more so over the coming years as the benefit system will, for most prisoners, have changed phenomenally by the time they come out from what they saw and knew about when they went into prison. For all the advantages in the Welfare Reform Bill—and, despite the arguments that we will have on Tuesday about its disadvantages, there are undoubtedly some advantages in it—the system of social security facing prisoners on release will be very different from the one they knew before. That will affect their re-emergence into a household. The payment of the universal credit to only one partner in the couple and other complications will need to be sorted out in advance.

In addition, half of prisoners have debts awaiting clearing on release, according to one survey, and one in three owes money for housing, which also makes access to a new home even more difficult.

The Centre for Social Justice has also highlighted similar problems faced by people leaving custody. Its report, Locked Up Potential, recognised that delays in processing benefits mean that many people who are discharged have no source of income when they most urgently need it. The report concluded:

“To bridge the finance gap, with the objective of reducing the resulting crime which it can fuel, we recommend that all prison employment and benefit advisers be required by the … DWP and the MOJ to initiate core benefit applications at least three weeks prior to a prisoner’s nominated release date”.

Along with the noble Lord, we consider three weeks to be rather too short. Nevertheless, will the Minister let us know what discussions his department has had with the Department for Work and Pensions about responding to the recommendations in that report, thus ensuring that those leaving prison are not left with gaps and delays in accessing the financial support that may be essential to them for starting a new life?

I welcome the comments that the Minister made in response to the earlier amendment about access to the work programme. Undoubtedly, that is of great advantage to people coming out of prison. Access to advice on the whole new system of universal credit well before a prisoner’s release date, and preferably when they first go into prison, would be of great advantage to them and to the rest of us. We hope very much that the Minister will accept this amendment.

[Lord McNally]

My Lords, it is very nice to see the noble Baroness, Lady Hayter, at the other side of the Dispatch Box. I presume that she is on the night shift. The noble Lord, Lord Ramsbotham, is correct. We recognise a certain familiarity about the amendment from another Bill but it is none the worse for that. The reality is that the MoJ and the Department for Work and Pensions are in close contact on these issues and are trying to work through them.

I am reminded of a visit I made to a Turning Point project in Birmingham when I talked to a young man who was being helped and trained. He said, “You can’t imagine the cold feeling in the pit of your stomach on your day of release”. The noble Baroness, Lady Hayter, indicated that there is a broad consensus that one of the trigger points for reoffending is problems in resettling in the community on release. It is also true that some face problems in accessing benefits. In addition, we should do more to equip offenders to work, enabling more of them to be productive members of society on release and not a burden on the state, which was the subject of our earlier debate.

The National Offender Management Service is working to develop financial capability in custody by increasing access to money advice services. A number of prisons also commission financial advice from local CABs and through contracted housing advice services. We also encourage rent arrear repayment schemes. NOMS has also granted funds to Unlock, of which the noble Lord, Lord Ramsbotham, is president, to increase offender access to financial services. I was very pleased to attend and to speak at the launch of a handbook produced by Unlock to help prisoners with financial issues. We recognise that more work needs to be done to encourage prisoners to save towards their discharge across the estate and to make use of the IT available, which would support them in preparing for release.

More than half of those sentenced to custody are claiming benefits at the start of their prison sentence, and two years after release nearly half are still claiming out-of-work benefits. That is why we are working so closely with the Department for Work and Pensions to overcome the gap in access to benefits, which the noble Lord has outlined, and to ensure that our plans to get Britain working will get more offenders into jobs. However, I do not believe that the noble Lord’s amendment will assist in achieving these aims. It would require us to conduct unnecessary assessments for all prisoners. This is because the work done on entering prison is highly likely to need updating as the sentence continues. At this time of fiscal constraint, it is vital that we look extremely carefully at how resources are targeted.

Staff working in prisons already take relevant steps when someone comes into custody to help sort out their benefits. New prisoners are specifically asked about this at induction and are referred to one of the 140 Jobcentre Plus employment and benefit advisers currently working in prisons. However, support does not end there, as we also recognise that release from prison into the community is a key transition point in the journey from crime to rehabilitation. Prison staff and employment and benefit advisers also take steps to help individuals make an application for a community care grant, usually about six weeks prior to discharge, so that payment can be forwarded to the prison and made available on release. They will also help in explaining how an individual can apply for a crisis loan on release.

[Baroness Hayter of Kentish Town]

I am not so much the night shift as the Welfare Reform Bill shift. Of course, the grants that the noble Lord has just referred to are to be abolished. I trust that prisoners will be aware that they will no longer be available because the Welfare Reform Bill abolishes them.

[Lord McNally]

Yes, but not instantly, and there will be a transition to the new scheme that I will explain shortly. It is unfair, if the noble Baroness sat through the Welfare Reform Bill, to start brandishing her knowledge at this time of night!

All this activity is aimed at ensuring that ex-prisoners can access advice on employment and benefits. It is backed by the new NOMS specification for rehabilitation services which requires, as a minimum standard, that prisoners are supported to sort out their financial problems.

As I mentioned earlier, during the debate on the noble Lord’s amendment on employment and training in prisons, we are working to overcome the remaining barriers as part of the Government’s welfare reforms. This includes our plans to use the work programme as the primary vehicle for help and support, whereby all prison leavers who claim jobseeker’s allowance will enter the work programme from day one of release from prison. This means some 30,000 prisoners a year will claim jobseeker’s allowance and start the work programme on release from prison or within the following 13 weeks.

These changes will also mean that instead of arranging an appointment for the prison leaver to attend and claim jobseeker’s allowance on release, the claim for jobseeker’s allowance will be taken in prison, to start entitlement immediately on release, allowing mandatory referral to the work programme. We will also continue to work with the DWP, Jobcentre Plus and other agencies, including in the voluntary sector, to ensure that prisoners have all necessary information about claiming benefits on release, and in pursuing programmes that prevent reoffending.

The noble Lord has specifically raised concerns about what will happen in the case of ex-prisoners who are not seeking work. As the noble Lord, Lord Freud, also explained in the debate that touched on this issue, we are aiming to address the finance gap through our plans for universal credit payments, which are paid monthly in arrears. Under the proposals, an applicant, on leaving prison and with a valid claim, can be paid their claim immediately through payment on account. I think this will strike the right balance, in ensuring that ex-prisoners can access their benefits quickly through payment on account, and that our resources are primarily focused on getting more offenders into work.

I hope with those explanations that the noble Lord will be reassured to the point that he will withdraw his amendment.

[Lord Kerr of Kinlochard]

My Lords, the noble Lord, Lord Ramsbotham, knows that I cede to no one in my admiration for him. He demonstrates that he understands the problem, and I am sure that he understands it much better than I do—I am a complete amateur in these matters. I found his argument very telling, particularly the £46 Catch-22. I also found the statement by the noble Baroness, Lady Hayter, very telling.

I have the impression that the Minister recognises there is a problem. He is describing various means which are already in hand of perhaps reducing the scale of the problem, and that is good. However, what is wrong with accepting the amendment? If the means of amelioration which the Minister has described reduce the need to impose a deadline—I take it that the nub of my noble friend Lord Ramsbotham’s amendment is in subsection (5), with the one-week deadline—and mean that it would bite in fewer cases, that would be excellent. But would it not be good to have this provision anyway? I hope that the noble Lord will think further about the amendment because the arguments he has made are not arguments against it. He has made the argument that the scale of the problem which the amendment seeks to deal with may turn out, because of what the Government are doing or are planning to do, to be smaller than it was in the past. I accept that because it could well be true. However, that would still leave the core of a problem which the amendment would deal with. I hope that this matter will not be put away for ever.

[Lord McNally]

My Lords, if the noble Lord was the head of a department of state he would not be advising me to accept the amendment moved by the noble Lord, Lord Ramsbotham, with such alacrity. However, I take the point. At the beginning of my remarks I made the point that we are now in close discussions with the Department for Work and Pensions in what we hope will be a genuine exercise in joined-up government. I remember one of the first experiences I had when I took over this office—and I should say that I am not the prisons Minister; my honourable friend Crispin Blunt is the Minister, and he has addressed these problems with great energy and commitment, but because of my responsibilities in this House I take an interest in this area. At any rate, I was reading in what was the strangest of all places, the Daily Telegraph, an article about a young man being released from prison with £46 in his pocket, but with a cold feeling in the pit of his stomach. The article went through the 48 hours after his release, by which time he was using that money to buy drugs and was back with the gang he had been associated with and which had sent him to prison in the first place. So we are not unaware of the problem.

I have said before that there is a revolving door of crime which sometimes our treatment of prisoners only exacerbates. What we are doing, in what I hope is a non-ideological way—I know about the fierce debates on the welfare Bill, but the noble Baroness was kind enough to comment that there are aspects of the reforms that are genuinely useful—is to see if we can stitch those reforms into our prisons. That will go a long way towards addressing the problems raised by the noble Lord, Lord Ramsbotham. As I have already indicated, I do listen to what he says and I will take back his ideas to see where they can mesh in with what we are trying to do with the DWP and the various initiatives that NOMS has taken.

[Lord Judd]

I thank the noble Lord for giving way. He has been talking with a great deal of sensitivity and imagination in response to this amendment and I am encouraged and reassured by that. He seems to have a real grasp of the realities. I hope that he will be able to deal with a couple of points. He talked about a young man with a cold feeling in the pit of his stomach. I have encountered too many conversations of exactly that character. I remember something that I think I may have mentioned in the House before. A former chief constable was doing great work as a volunteer in a young offender institution, but he was bowled over when a youngster who was about to be released started to weep in his presence. He asked him, “Why are you weeping? You are about to be released”. The youngster said, “Because I am absolutely scared of what I am going to encounter outside”.

There are two things that we must bear in mind: first, that for some people—not, of course, the majority, but some—perhaps the very last thing they need is to go straight into a job. They need a great deal of support and counselling to prepare them. Front-line staff in prisons working with these youngsters often make that point. Secondly, agencies, advice and everything else are tremendous—what the Minister has been saying is terrific; the more of it that is available, the better—but it is not just that. What so often is needed in the context of the cold hole in the stomach is stable relationships and friendship. I hope that the Minister can give us reassurance that, in all the work that the Government are doing with the voluntary sector, they will give every encouragement to those voluntary organisations that are moving into this sphere and trying to provide a stable relationship—as it were, walking with the individual back into full rehabilitation into society.

[Lord McNally]

Part of the problem with this debate is that we cover two areas, which we were discussing earlier. First, there are dangerous people from whom society needs protection, and we have to deal with them within our criminal justice system. Secondly, you do not need to be in this job very long, or to visit very many prisons, to realise that there are people in our prisons who have no place there and who, with a proper policy of rehabilitation in its broadest sense, can be stopped from reoffending. We are really fighting on those two fronts.

On whether there should be a glide path into work, perhaps that is where we can get the work-in-prison regimes working properly. That in itself can help in that direction. The other thing that I am also very enthusiastic about and would like to see developed, and where the voluntary sector is superbly equipped to help, is mentoring schemes, and finding people who are willing to act as mentors. That could have a powerful effect. I do not think that there is division in the Committee on that. We are trying the perhaps revolutionary idea of joined-up government in making sure that the move from prison to a proper, productive, law-abiding life is not aborted at those first steps through the prison gates because of lack of basic support.

[Baroness Hayter of Kentish Town]

Perhaps the Minister would use joined-up government to do one other thing. I mentioned when I intervened just now that the Social Fund was going to be abolished and that both grants and loans would become the responsibility of local authorities. The DWP has undertaken to issue a “settlement letter” about it to local authorities. One of the areas that we were worried about with regard to the Welfare Reform Bill was that a person would have to have a local connection to be able to claim either their replacement for social care grants or crisis loans. It is exactly ex-offenders who are least likely to be able to qualify because they may not have ties with the place that they go back to. It would be extremely helpful if the Minister could in discussions with the DWP stress the importance of that settlement letter making it clear that ex-offenders should be eligible for those payments even if they go to a local authority area where they have not just moved from because they are coming out of prison. His help on that would be greatly appreciated.

[Lord McNally]

I will gladly draw that to the attention of DWP.

[Lord Ramsbotham]

My Lords, I was very glad that the night shift had started so that the noble Baroness, Lady Hayter, with her great experience of these issues, was here to contribute to the debate. I am very grateful to my noble friend Lord Kerr and to the noble Lord, Lord Judd, for their contributions. They added value to the debate.

I am extremely grateful to the Minister, who demonstrated, as has been mentioned, that he understands the problem. Yet, in 1996 I first received an official pat on the head from an official in the Home Office who said, “Do not worry, we are talking to the Department of Employment about this”. Absolutely nothing has happened about it and that was more than 15 years ago. In the run up to putting my amendments to the Welfare Reform Bill, I questioned officials in the Department for Work and Pensions who were not aware of any people in the Ministry of Justice involved in such discussions. I am glad that that is happening. It would be sensible to bring this amendment back on Report so that the Minister can tell us precisely what has happened since that time. I know that the Department for Work and Pensions is poised and waiting. The suggestions that I made to the Minister were requests from that department that would help it to help the Ministry of Justice. Hoping that that will happen, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord McNally]

182ZB: Clause 120, page 101, line 9, at end insert—
“(2A) The relevant Minister may issue a transit order where—
(a) international arrangements apply to any of the Channel Islands or the Isle of Man which provide for the transfer between that island and a country or territory outside the British Islands of persons to whom subsection (2B) applies; and(b) the relevant Minister has received a request from the appropriate authority of that island for the transit of a person to whom subsection (2B) applies through a part of Great Britain.(2B) A person falls within this subsection if—
(a) that person is for the time being required to be detained in a prison, a hospital or any other institution either—(i) by virtue of an order made in the course of the exercise of its criminal jurisdiction by a court or tribunal in the island from which the transit request is made; or(ii) by virtue of any provisions of the law of that island which are similar to any of the provisions of this Act; and(b) except in a case where a transit request is made in the circumstances described in section 6D(1), that person is present in that island.”

[Lord McNally]

My Lords, I cannot resist commenting on the last point made by the noble Lord, Lord Ramsbotham. He is such an old Whitehall warrior that he is always between one department and another, asking, “What are the difficult questions that I can ask them?”.

Clause 120 provides that prisoners who are being transferred under escort from one state to another for the purpose of serving a sentence of imprisonment may transit through the territory of Great Britain. Transit will normally involve a prisoner and escort changing aircraft at an appropriate UK international airport. The clause is required to enable the UK to fulfil its international obligations under existing and future prisoner transfer arrangements. Following discussions with the authorities of the Channel Islands and the Isle of Man, it has become clear that further powers are necessary to enable escorts from these territories to transit through Great Britain when transferring a prisoner to another state. This group of amendments address that particular issue with the Crown dependencies. They have no other, wider or ulterior motives, despite talking about transiting through territories et cetera. They are to enable the Crown dependencies—the Channel Islands and the Island of Man—to participate in what are already international obligations. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I am deeply sad that my appearance before the witching hour did not receive the approbation of the Minister, who did not welcome me to the Front Bench with my comments. I make no further comment on that. I also make it absolutely clear that the comments which follow have not been solicited by me creeping around Whitehall. The noble Lord, Lord Ramsbotham, has gone, but I will obviously take lessons from him about how to do that in future. He concealed his briefing very well to the end. Perhaps he should have done so until after the Minister responded.

The Minister is right. The wording of these amendments looks pretty innocuous on the surface but we wonder why they are there. I have five questions to leave with the Minister. He said that these were necessary to fulfil international obligations. That of course raises in one’s mind the words “extraordinary rendition”. Could he reassure the Committee that, as he said at the end, there is nothing that one should be worried about in that? Clearly, we are worried about extraordinary rendition. Is this a part of that overall process and, if not, could he explain precisely why the Channel Islands and the Isle of Man need to have this legislation at this time? I am sure that there is an innocuous explanation, but we would be grateful to have that. Perhaps in answering that he could also say what he estimates the effect will be of the provision. I cannot imagine that many international flights carrying prisoners and escorts, or without escorts, land in the Channel Islands and require this sort of arrangement; so it would be interesting to have the figures and, if he does not have them to hand, perhaps he could write to me.

Since we are on extraordinary rendition, which has been a sensitive issue for some time, perhaps the Minister could use the opportunity to refresh our memories about where we are on this. Is it still the case that the UK will not undertake extraordinary rendition of detainees in a manner that may be illegal? Confirmation of that would be gratefully received.

[Lord McNally]

On the last point, of course I can give that guarantee. I very much welcome the noble Lord as part of the nightshift. I apologise for the omission during his earlier contributions.

The Isle of Man, Jersey and Guernsey are not part of the United Kingdom; they are Crown dependencies. Whether it was an oversight or not, I do not know, but this just clears things up so that they can operate through UK airports if that was needed. I understand that there have been two or three cases in the past three or four years, so this is not some mass movement of people. They are applications on a voluntary basis, with people wanting to be repatriated back to their own country, and for prisoner exchange purposes.

It may help if I speak to Clause 120. The clause would enable prisoners who are being transferred from one state to another for the purpose of serving a sentence of imprisonment to transit through the territory of Great Britain. Transit will normally involve a prisoner and escort changing aircraft at an appropriate UK international airport. It is required to enable the UK to fulfil its international obligations under existing and future prisoner transfer arrangements. The United Kingdom is party to a number of international prisoner transfer arrangements which require the United Kingdom to facilitate transit wherever possible. In the absence of a specific power to authorise transit, and where necessary to detain a prisoner during transit, applications have been routinely refused.

Clause 120 will enable the relevant Minister to authorise transit through the territory of Great Britain where a request is made in accordance with a relevant international prisoner transfer agreement to which the UK is party—in particular the Council of Europe’s framework decision which requires a member state to facilitate transit between member states when requested. It also provides a power for the police to detain a prisoner in transit only for a period necessary to complete the transit.

The Government fully support the principle that foreign national prisoners should be able to serve their sentences in their own country and we need to support partner jurisdictions in achieving this end. For this system to work effectively, Governments must to co-operate with each other in facilitating transfer. Indeed, the UK regularly seeks and obtains permission to transit through other countries when returning British nationals here.

I recognise that concerns have been raised about the rights and protection of individuals subject to transit, but I remind the House that only when a person has been convicted and sentenced by a court of law and when that person is being transferred for the sole purpose of the enforcement of that sentence in another country would transit through the UK take place. The prisoner concerned is unlikely to have any connection with the United Kingdom and any challenge to the prisoner’s transfer and detention should be made either to the sentencing or receiving state, not the United Kingdom.

This is a technical amendment and has none of the sinister implications that might have arisen at first blush. I hope that the assurances that I gave at the beginning to the noble Lord’s questions will satisfy him.

Amendment 182ZB agreed.

Moved by

[Lord McNally]

182ZC: Clause 120, page 101, line 10, after “(2)(a)” insert “or (2B)(a)”