(12 years, 8 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
16:01 - Division on Amendment 144A - Ayes: 173 / Noes: 257 - Amendment 144A disagreed.
17:28 - Division on Amendment 151AZA - Ayes: 217 / Noes: 217 - Amendment 151AZA disagreed.
21:22 - Division on Amendment 153 - Ayes: 62 / Noes: 90 - Amendment 153 disagreed.
Lord Beecham
Lord Beecham
My Lords, there has been widespread condemnation outside the House, and unanimous condemnation inside it, of the activities of parasitic claims farmers and claims management companies that engage in the process of securing referral fees simply to generate profit. A major objection to the activities of those concerns is that they foster the myth of the compensation culture. People who see advertisements on the streets or in newspapers which invite claims may get the impression that hordes of people are succumbing to the temptation to make wholly bogus claims. In the field of whiplash claims, it is acknowledged that there is some truth in that perception. However, in general terms, as the noble Lord, Lord Young of Graffham, pointed out in his report, there is no substance to the suggestion that there is a widespread compensation culture.
The amendment deals with the position of not-for-profit organisations. We are entirely at one with the Government in seeking to ban referral fees made to commercial organisations simply for the purpose of making profits. However, some organisations—be they charities or membership organisations—receive referral fees from firms of solicitors and perhaps from others whom they appoint to panels on the basis of their expertise and record of service, and whose contributions help those organisations carry out their main purpose. That might be service to members or, in the case of charities, the furtherance of the charitable objectives of the organisation. For example, among the charitable organisations are the Spinal Injuries Association, Headway and Action against Medical Accidents. There are others, too, which receive referral fees and use the proceeds to benefit those whom their organisation was set up to help. Other membership organisations and trade unions do likewise.
When we debated amendments of a similar nature last week, the Minister referred to the main—and understandable—objective of the Government, which is to restrict the cost of litigation. We share that objective. In the case of referral fees, it is perfectly achievable. It does not constitute a cost to the system. If a referral fee is effectively charged to the client, of course that is a cost to the client, and that ought to be avoided. On general costs, costs payable by a losing party to another are either agreed or assessed by the court. Obviously, the court can base its assessment of costs on what the normal tariff would be. I have appeared before the courts many times in 35 years of practice as a solicitor—endeavouring to justify the very modest costs that my firm sought—to explain and justify those fees. In fact, a kind of tariff is applied locally by the courts. In any event, if this were thought to be a danger in the system, it would be possible to allow the courts to deal with any such referral fee, to require it to be disclosed and to make it an irrecoverable disbursement from the paying party. So the question of additional costs can be satisfactorily dealt with.
In last week’s debate, the noble Baroness, Lady Deech, made some interesting points, one of which was incorrect. She said that the referral fees received by some trade unions find their way into the coffers of the political party with which I and others in this House are associated. That is not the case. Payments by trade unions to political parties of any colour come out of the political fund, not the general fund. The noble Lord, Lord McNally, who was once more closely involved with these matters than he is now, confirmed that.
However, the noble Baroness also referred, understandably, to the situation that arose in respect of compensation claims by miners regarding pneumoconiosis —a whole raft of cases over many years. Many law firms and others spent considerable time and money researching these cases and it was a very long time before they were settled and a scheme developed. The abuse in that case was actually rather different from what we are now debating. It was not so much the question of referral fees; it was the fact that some firms of solicitors—happily, not many—not only were paid by the Government under the compensation scheme but had the effrontery to deduct some payments from their clients. That was absolutely outrageous and many of the firms involved were severely disciplined, and rightly so, by the Law Society. But that is a separate issue from that which this amendment and the whole topic of referral fees address.
There is a world of difference between the use of referral fees by claims management companies and the like—simply to generate profit and at the same time perhaps to promote invalid claims on the off-chance that some of them may succeed—and that by other organisations genuinely endeavouring to assist their members and receiving funds which in turn are used for the benefit of the members or the non-commercial purposes, charitable or otherwise, of the organisation. I beg to move.
Baroness Deech
My Lords, I will try not to repeat myself, because I spoke about referral fees last week.
Briefly, in response to the noble Lord, Lord Beecham, the evil of referral fees is threefold. First, if the law firm can afford to pay a couple of hundred pounds for each case, then it stands to reason that the case could have been handled more cheaply. Secondly, when work goes to a particular firm of solicitors, it encourages that firm not to compete and not to do its job properly because, no matter what, the work will come to it. The case of the miners to which the noble Lord, Lord Beecham, referred and which I described last week did not arise directly from referral fees, but one can see the risk. If a firm knows that 23,000 cases will come its way willy-nilly, why should it try very hard? Why should it not take short cuts?
Thirdly, referral fees arrangements deprive the consumer of choice. The argument for referring consumers to a particular firm is that they would not otherwise know where to go. These charitable organisations, to which the noble Lord referred, could do the job just as well by listing a few firms and helping their clients to go to those firms without expecting money to come their way. As far as I can make out from research on the web—I stand to be corrected—on its web page on legal services the Labour Party says that clients who are members of the Labour Party will be referred to a particular firm of solicitors if they have a problem. If one continues to click through the pages, the firm says in very small print, buried deep in the internet, that for every case that comes to it from the Labour Party website several hundred pounds will be paid to the political party.
To make things even worse, referral fees, some of which may well come from legal aid, could be channelled inter alia to a political party. There is no case for referral fees. I encourage the House not to be wooed into any set of exemptions, even where worthwhile charities are concerned, because the bad nature of referral fees spreads throughout the system, regardless of who uses them. I hope that your Lordships will reject this amendment and any similar ones. Now is the time to end the practice of referral fees.
Lord Goodhart
My Lords, I agree entirely with what the noble Baroness, Lady Deech, has just said. Referral fees have for some years been a serious problem in almost all circumstances and have caused a great deal of trouble and unnecessary expense. It is not a case where, as the Labour Party has just proposed, it should be treated just as a matter where two firms are in business. This is a matter that requires to be removed.
Lord Thomas of Gresford
My Lords, in my youth I appeared for insurers and unions, and I did not pay anybody to get those cases. We competed on quality. The competition was there so that unions and insurers would send their work where they thought that they would get the best service, not where they thought that they would get the largest fee. It is insidious for fees to be paid to purchase cases from any organisation, whether it is a union or even the finest charity. It is not right that unions and charities should fund themselves in this way. The noble Lord has made the case from the point of view of unions and charities being funded. One has to look at it the other way round. Why should firms of solicitors or even barristers’ chambers—I have heard rumours about this—get work on the basis of how much they pay a person referring cases to them? It is a practice which has to stop.
Lord Monks
My Lords, I support my noble friend in this amendment. Referral fees are one aspect of the Bill that will affect union legal services adversely, along with changes to “after the event” insurance and conditional fee agreements. These three issues will make union legal services much more difficult and expensive to operate. Inevitably, fewer cases will be taken. Last year, unions assisted something like 50,000 individuals with cases. There was no charge on the public purse for that assistance. It was done through people’s membership of the union. Many people who were very ill or injured in some way were helped considerably. When this Bill becomes law, essentially, that will become more difficult.
I have checked which unions use referral fees and which do not. Two of the major unions use them and the rest do not. The two which use them do not use them to fund the Labour Party, which is the allegation that is around. As my noble friend explained, the political fund of the unions is completely separate. A separate contribution is made to that. It is registered under the Trade Union Act 1984, which was put through by the noble Lord, Lord King. You make a voluntary donation which is separate from your union membership fee and it is separately accounted for.
The suggestion that referral fees are used by unions to fund the Labour Party is totally wrong. The whole purpose of referral fees where they are applied has been to support the expansion of union legal services to make good some of the defects elsewhere in the justice system. I hope that the House will bear that in mind when it considers this amendment.
Lord Martin of Springburn
I declare an interest as a member of Unite. The noble Baroness, Lady Deech, was good enough to say that she had mentioned the problems of referral fees in a previous debate. That debate took place on my amendment. My case was that trade union officers go to places where there has been an accident. Therefore, there is a certain expenditure when those visits are made. There is obvious expenditure and there should be some compensation. The noble Baroness was good enough to mention referral fees and I was deeply impressed by what she said. Therefore, I will not move Amendment 146.
Baroness Deech
My Lords, I should have declared an interest as chairman of the Bar Standards Board, which prohibits barristers from receiving or dealing in referral fees. If I gave the impression last week that referral fees that go to unions go direct to the political party and that is wrong, I apologise. My point is that it is happening in another way. I have not yet been corrected but my research on the internet showed that direct referrals from a party to a firm resulted in the firm paying a referral fee to the political party. Therefore, if it is not happening in one way, it may be happening in another.
Lord Brooke of Alverthorpe
My Lords, I support the line taken by our Front Bench. Without any question, there are risks with referral fees but they are fairly minimal. The questions that the noble Baroness, Lady Deech, and others should ask themselves are whether they believe that there will be more of the kind of litigants who at present benefit from the union offering these services, admittedly through using referral fees, especially given what we are doing to legal aid in this Bill; or whether there will be fewer people taking action. My view is that if these changes are put through, the likelihood is that unions will not be able to offer services on the same kind of basis that they have in the past. As a consequence, fewer people will pursue cases and the people who will not be pursuing those cases will be the ones at the bottom of the pile, and not those who are higher up with a fund of money to pursue the law without any trouble whatever. I put those very serious questions to those who are pursuing this line.
Lord Phillips of Sudbury
My Lords, I shall intervene briefly. I declare an interest in that a firm in which I was a partner had major arrangements with a number of trade unions.
I say to the noble Lord who has just spoken that the unions and the firms who do their work will be able to adjust their arrangements. For a start, by not paying the referral fee, the solicitors doing the work will be able to drop their charges to take account of that fact, and the trade unions will be able to adjust their arrangements with their members, although it will not be a major adjustment. The point that the noble Lord reasonably made is capable of adjustment in a way that will enable the abolition of referral fees—which, in general, are extremely deleterious to justice—to be effected.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this proposal is not in any way union bashing and I am sorry that it has been caught up like that. I was pleased that when the noble Lord, Lord Beecham, opened the debate he joined with the Government in our general desire to ban referral fees. It is of course right that injured people should be able to pursue claims and under our reforms they will be able to do so. Costs will be more proportionate and the damages they receive will be increased.
However, it is wrong for third parties to be able to profit from referral fees for personal injury cases in this way. I found the intervention of the noble Baroness, Lady Deech, last Wednesday extremely powerful and I recommend noble Lords to reread it. The noble Lord, Lord Beecham, is right: it is not four-square with referral fees but it illustrates the danger of sweetheart relationships in this area. The Law Society was quite right—but rather belatedly so—to deal with a great injustice to miners who had already suffered much in their industry.
On the question of political funding, yes, I understand the difference between union general funds and the political fund and that it is the political fund that goes to the Labour Party. However, again, the noble Baroness, Lady Deech, explained that she was referring to the party itself acting as a referee. Even as I speak, I wonder whether this merry thought has occurred to any other political party. I know political parties look for ways to earn funds and, if this has been thought up by the Labour Party, it is, at the moment, within the law. However, we do not think it is right.
I also welcome the intervention of my noble friend Lord Phillips. I do not always welcome his interventions but this time he has put his finger on it: we are not preventing solicitors taking on a case at reduced rates or for free; nor are we preventing solicitors from making donations to charities or other not-for-profit organisations. Charities representing injured people will still be able to offer advice and recommend the best law firms. However, they should do that in the claimant’s best interest, not on the basis of what fee they can get for that claim. The amendment would not only allow an exception for charities and unions but for all not-for-profit organisations. I fully appreciate that trade-union, charity and political-party referral fees can be nice little earners, but that kind of relationship is not in the best interests of the consumer.
I say to the noble Lords, Lord Monks, Lord Brooke of Alverthorpe and Lord Martin, that I am well aware of the record of trade unions in legal advice and the help that they give to their members. I have no doubt of the accuracy of the figure of 50,000 a year given by the noble Lord, Lord Monks. However, I also take the point—which I did not know—that only two trade unions use referral fees. This suggests to me that this is not the universal attack on trade unions that anybody has suggested. We simply say that whether it be political parties, trade unions or charities, it is not healthy or in the consumer’s interest to have sweetheart deals between unions, charities or political parties and individual law firms.
The amendment goes further than earlier proposals. Some claims management companies are currently not-for-profit organisations and others could become not-for-profit bodies in order to get around the ban. In Committee, the noble Lord, Lord Bach, tabled an amendment that would have made an exception for charities only. This amendment now makes a wider exception which would exempt unions, political parties and not-for-profit claims management companies as well.
We believe that referral fee arrangements are wrong in principle. Under the cloak of support for charities, the amendment would allow payments for the referral of personal injury cases by a wide range of organisations. This amendment would make a mockery of the ban on referral fees, which the Opposition have claimed to support in principle—and I believe they do support it in principle. I really think—and the more I listen to this debate the more I think it—that for the Opposition to press this amendment is simply wrong-headed. I hope that the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.
That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.
I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.
The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.
Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.
I feel strongly about this—
Lord Thomas of Gresford
My Lords, drawing on his long experience, can the noble Lord tell us when referral fees first reared their head? I do not recollect them 20 or 30 years ago. Does he know when they began?
Lord Beecham
To the best of my recollection, they have appeared in the past 10 to 12 years. I have not myself been heavily involved in the practice in which I was a senior partner for the past nine years, much to its relief and mine. Having had our debate and despite the pleas of the Minister, I wish to test the opinion of the House.
Lord Clement-Jones
(c) arranges for another person to provide, for a fee, marketing services by unsolicited SMS text message, unsolicited telephone calls or any marketing in a hospital or other primary treatment centre.”
Lord Clement-Jones
My Lords, first, I declare my membership of the Law Society. As we have discussed both in Committee and on Report, referral fees are one of the major causes of the public’s perception that a compensation culture exists in this country. We have heard some powerful speeches across the Benches on the subject of referral fees. My noble friend Lord Thomas called them insidious and I agree. For that reason I strongly support Clauses 54 and 55.
Although there has been some difference of views on the provisions for referral fees set out in Clauses 54 and 55 as they impact on charities and trade unions, generally there seems to be a common view that although these clauses are useful, if they are to catch all the abuses they need to go further—perhaps not as far as the right honourable Jack Straw would want to go in terms of making it a criminal offence, but covering the full range of malpractices. For instance, there is nuisance marketing in personal injury—specifically, advertising in hospitals, cold calling and spam texts; financial incentives to claim; selling contact and case details of personal injury victims without their consents; and auctioning claims to the highest bidder. Mr Simon Burns the Health Minister recently told English NHS hospitals that it was not acceptable to display advertisements for law firms encouraging no-win no-fee compensation claims. That was a firm and wise action, and I commend it.
In our debate in Committee, my noble friend Lord Carlile of Berriew, on the subject of text messaging immediately after an accident without injury even taking place, made a powerful speech in support of extending Clause 54. My noble friend Lord McNally expressed sympathy with the intention behind the amendment and said that the Government would consider it further. I hope that he will tell us today where the Government have got to. Can we expect white smoke on Report or Third Reading or, indeed, a text message? I beg to move.
Lord Beecham
My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.
I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.
Lord McNally
My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.
Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.
On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.
I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. It very much falls into two parts, as far as I can see, in terms of action by and with the Information Commissioner and action by the Secretary of State and Ministers relating to unauthorised and authorised marketing in NHS hospitals. The bit I find difficult is not that relating to the Information Commissioner; indeed, it is very welcome that those powers are being mobilised and that the Minister, Mr Djanogly, is having the necessary meetings with the Information Commissioner. The surprising part concerns the National Health Service. I think that the view around this House is that there should be no authorised marketing of this kind within NHS hospitals. What baffles me is why that kind of marketing is allowed to persist within NHS hospitals. I am not going to press the amendment today but I very much hope that we can progress further, certainly in pressing the Department of Health to be much more robust than appears to be the case about this kind of marketing.
Whatever the form of marketing which is an arrangement between a hospital and a firm of solicitors —perhaps advertising law firms within hospitals or allowing texting—it certainly falls morally within the terms of the kind of action that we are trying to prevent within this clause. It therefore really should be covered, and if there is that power within the department —or indeed by any future regulator under the health Bill that has now passed—I very much hope that it will be exercised and that my noble friend the Minister’s department will keep pressing the Department of Health. Perhaps we might even bring this back for an assurance on Third Reading, to understand exactly what is being authorised if there is such a thing as authorised marketing of this kind. In the mean time, I beg leave to withdraw the amendment.
Lord Pannick
“Pro bono representationPayments in respect of pro bono representation before the Supreme Court
(1) In section 194 of the Legal Services Act 2007 (power for certain courts to order losing party to make payment to charity where other party is represented pro bono) in subsection (10) for the definition of “civil court” substitute—
““civil court” means—
(a) the Supreme Court when it is dealing with a relevant civil appeal,(b) the civil division of the Court of Appeal,(c) the High Court, or(d) any county court;“relevant civil appeal” means an appeal to the Supreme Court—
(a) from the High Court in England and Wales under Part 2 of the Administration of Justice Act 1969,(b) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005, or(c) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court) other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court;”.(2) This section applies in relation to appeals to the Supreme Court only where the decision, order or judgment that is the subject of the appeal is made or given on or after the day on which this section comes into force.”
Lord Pannick
My Lords, this amendment is less controversial than some that your Lordships have been debating on Report. I am very grateful to the Minister for adding his name to it, and I will briefly explain its purpose and effect. Lawyers are often criticised, sometimes in your Lordships’ House and sometimes with justification, but noble Lords will wish to acknowledge that a large number of them spend at least part of their time working unremunerated for clients simply because they wish to contribute to the promotion of justice. In some of these cases, the lawyer succeeds for the client. The other side in the litigation, the unsuccessful party, cannot then be ordered to pay the costs of the proceedings because, having been represented by the pro bono lawyer, the successful litigant has no costs.
Section 194 of the Legal Services Act 2007 addresses such cases. It confers power on the court to order a person, normally the unsuccessful party, to pay a sum in respect of the notional costs to a charity prescribed by the Lord Chancellor. The charity prescribed is the Access to Justice Foundation. It then distributes the sums paid to it to voluntary organisations that provide free legal support for individuals and communities. As currently drafted, Section 194 has one defect; it applies to civil cases in the county court, in the High Court and the Court of Appeal, but it does not currently apply to civil cases in the Supreme Court. This is despite the fact that many of the cases in which lawyers act pro bono are in the Supreme Court. This amendment quite simply will remove that defect.
The amendment is also in the name of the noble and learned Lord, Lord Goldsmith. Unfortunately he cannot be in his place today as he is working elsewhere, although I do not think that on this occasion it is on a pro bono basis. He is, however, the chairman of the Access to Justice Foundation. As Her Majesty’s Attorney-General, he was the promoter of Section 194. I pay tribute, as I am sure all noble Lords will want to do, to his tireless work in encouraging lawyers to give of their time to work pro bono. I know that he is as pleased as I am that the Minister has indicated that the Government will support the amendment.
I thank the Minister for considering this issue and for supporting this much needed reform, which I know will also be welcomed by the justices and practitioners of the Supreme Court and by all those clients, and potential clients, who will benefit from the receipt of further funds from the foundation. I beg to move.
Lord Phillips of Sudbury
My Lords, briefly, I support every word of the introduction by the noble Lord, Lord Pannick, of this amendment. On behalf of the Solicitors Pro Bono Group, which is sometimes called LawWorks, of which I am founder and president, I wholeheartedly applaud this amendment to Section 194, which can only be beneficial to pro bono.
Lord Bach
My Lords, we congratulate the noble Lord, Lord Pannick, from these Benches. I thank him very much for his well deserved tribute to my noble and learned friend Lord Goldsmith. I have to say that I felt a slight tremor of envy when I saw this amendment on the Marshalled List. I have tried throughout the Bill to put forward an amendment that might have the name of the noble Lord, Lord McNally, attached to it, but have failed miserably. The noble Lord, Lord Pannick, makes one attempt and it succeeds.
Lord McNally
My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.
I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.
Lord Pannick
I renew my thanks to the Minister. He is absolutely right; those advising him did indeed improve the drafting of the amendment and I am very grateful to them as well.
Baroness Corston
“CHAPTER A1Women’s Criminal Justice Policy UnitWomen’s Criminal Justice Policy Unit
(1) There shall be a Women’s Justice Policy Unit (“the Policy Unit”) within the Ministry of Justice.
(2) The staff of the Policy Unit shall comprise officials from the Ministry of Justice and officials seconded from—
(a) the Department of Health;(b) the Department of Communities and Local Government;(c) the Department of Work and Pensions; and(d) the Home Office.(3) The Policy Unit shall report and be answerable to an inter-ministerial committee, including the Equalities Ministers, who shall be responsible for strategic oversight of the Policy Unit.
(4) The functions of the Policy Unit shall include—
(a) the development and implementation of a government strategy (“the strategy”) for women offenders and for women at risk of offending; and(b) review of the impact of government policies on women offenders and women at risk of offending.(5) The policies which the Policy Unit shall review under subsection (4)(b) shall include but not be limited to policies in the areas of—
(a) the delivery of appropriate and effective services to women in the criminal justice system including in the areas of—(i) the rehabilitation of offenders;(ii) sentencing, including youth sentences and the imposition of community orders;(iii) employment and treatment of prisoners; and(b) housing;(c) mental health; and(d) children and families.(6) The Ministers responsible for the strategic oversight of the Policy Unit shall lay before Parliament at least annually a report on the Policy Unit’s exercise of its functions.”
Baroness Corston
My Lords, it is a privilege to move this amendment. I acknowledge and am grateful for the support of my noble friend Lady Gould of Potternewton and the noble Lord, Lord Ramsbotham.
Last week was the fifth anniversary of the publication of the Corston report, and I have got to the stage now where I feel that the name on the report is not mine, as I gather that in the Ministry of Justice I have become both an adjective and a noun. However, I acknowledge that reference was made to that anniversary by the noble Lord, Lord McNally, in this place, and by the Secretary of State for Justice in the House of Commons. I also acknowledge that last week, on the fifth anniversary, the noble Lord, Lord McNally, held a roundtable discussion on progress and the way forward on the women’s criminal justice agenda.
In a debate in Committee on 15 February, the noble Lord, Lord McNally, said that,
“we are doing many things in the direction of travel of the Corston report”.—[Official Report, 15/2/12; col. 876.]
However, central to my report was the call for strategic and structural changes to drive progress on the women’s criminal justice agenda. I called for a joined-up response across government to address the multiple and complex issues in the lives of women offenders and—I emphasise “and”—women at risk of offending. Therefore, as far as I am concerned, the loss of a cross-departmental women’s unit poses a real risk of returning to policy silos within government departments that will inevitably be reflected locally.
The Ministry of Justice now has two officials left working on women’s policy, and they will inevitably focus on women offenders. In future, it is proposed that the funding should be devolved to NOMS—the National Offender Management Service—at regional level, and it will inevitably be probation focused. So NOMS will deal with women offenders. However, women who are at risk of offending do not come, and cannot come, on to its radar. These women will again be lost, as will a real opportunity to tackle their vulnerabilities before they end up experiencing custody and the consequent damage which that entails to themselves, their families and, particularly, their children.
The costs incurred to the public purse by not pursuing prevention are all too well documented. A women’s criminal justice policy unit does not need to be resource-intensive. In fact, I am not sure that it needs any resource at all. It does not need to mean cross-departmental officials working together in one place in a team. There are opportunities for creative working, with designated leads from each department working together on the common issues facing women offenders and women at risk in terms of mental health, drugs, housing, family, skills and employment. A policy unit would be cost-effective and represents a way to save money. Without such an approach, money could be wasted as individual departmental pots of money are all spent on the same group of women.
The Inter-Ministerial Group on Equalities is already in place, and I have called for ministerial oversight. I cannot see why that group cannot be used for good effect in helping the Ministry of Justice to drive forward progress on this agenda. The responsibility cannot and should not lie solely with the Ministry of Justice. Delivering the various required responses to women's needs is cost-cutting and it should be equalities-driven as well.
I am sure that many noble Lords will recall the speech of Nick Hardwick, Her Majesty's Chief Inspector of Prisons, on 29 February. I gather that the speech was entitled “Women in Prison: Corston Five Years On”. It was a timely reminder that while progress has been made, there is much more to be done. He said:
“We cannot go on like this … without senior, visible leadership, with real authority and resources to push things through”.
I could not agree more. That is what is missing. I do not mind people using my name, but I want them to make sure that they reflect what I called for, rather than what it might be convenient to suppose I called for.
I emphasise the need for a written strategy for these women. We currently have a virtual strategy in that government Ministers say that they have a strategy but that they will not publish it. That is no strategy at all. Surely that is meaningless if the Government are serious in their attempt to be accountable and to monitor progress. How can they evidence progress in a transparent way without publishing, at the very least, a framework of intent, supported by a statement of what they are trying to achieve for women with vulnerabilities who are caught up in the criminal justice system?
I fully understand that the Government wish to pursue localism and avoid being seen to dictate from the centre. However, without a strategy as an overarching framework, no one knows what it is about locally or can use it to persuade others of the merits of joined-up delivery. How can women's community projects or probation trusts persuade local delivery partners of the need for joined-up delivery at a local level if there is nothing to indicate that the strategy is in place? The Government’s planned programme of work on troubled families rightly intends to provide a clear national steer for local delivery. Why cannot the same be applied to the Government’s strategy for women offenders and women at risk of offending? After all, a lot of these troubled families are headed by such women.
What I am seeking is not a costly option; it is a basic minimum requirement to support the Government’s stated intent to progress the Corston agenda. It would be neither costly nor time-intensive to pull together a brief strategy that builds on earlier progress, because progress there has been. Without a strategy, how will the Government meet their requirements under the Committee on the Elimination of Discrimination against Women and the Bangkok Rules for women. Here, there are ramifications for the Government’s standing internationally. I have absolutely no doubt of the Minister's intent to influence policy across government, as the noble Lord, Lord McNally, has said. I also have no doubt that he will rely heavily on his officials to work closely to ensure that that influence results in tangible delivery. However, how much easier it would be for them to achieve that by having to hand a written statement of that strategy and its goals. I beg to move.
Lord Judd
My Lords, I am very glad to have this opportunity to support my noble friend. I had the privilege of serving on the Joint Committee on Human Rights when she was its distinguished chair. I then had the opportunity to see at first hand that this is not a passing interest of hers; it is something deeply rooted in her culture and in her sense of justice and the availability of justice for everyone. If justice, in its fullest sense, is to be delivered, what matters is the appropriateness of what is being done when someone is sentenced. It is not only my noble friend who in her very challenging report has spelt out the issues, but I am repeatedly impressed by the research which seems to come to the same conclusion that the overwhelming majority of women in prison should not be in prison at all.
I vividly recall visiting Holloway prison with the Joint Committee on Human Rights—I am not certain that my noble friend was the chair at the time—in connection with some work that we were doing. While we were there we got into very good conversation with some of the staff. It is easy to be prejudiced, but for me it is always interesting that in a place like Holloway you find a mix of people in the profession, including some very good, caring people who—for any of us who would want to be seen as humanitarians—are living a very challenging life in the front line of their professional services. I remember—and this was dealing specifically with short sentences—one woman turning on us in exasperation and saying: “I don’t think you people know what you are doing. We don’t understand what you are doing. These women’s lives are a story of chaos, and all we do by having the women in here for a short term is to increase the chaos in their life in terms of their relationship with their children, their relationship with the community of which they are a part, their relationship with life as they have got to live it”. Then she looked back a little poignantly and said: “Unless, of course, by having them in here for a few days we relieve them of some of the nightmare of pressures outside”.
It is an indictment of us all that we have such an inappropriate, wrong-headed approach towards how we deal with women who may have been caught up in some offence. From that standpoint, it is clear that there has to be an interdisciplinary approach. The problem—the challenge—goes across all sorts of different aspects of life. However, as the noble Lord, Lord Ramsbotham, repeatedly reminds us in debates on such occasions, if you are trying to get a change of culture and drive through a new approach, you have to pin down who is really responsible. You have got to have specific arrangements in place to make sure it happens and that it is pursued. This is what my noble friend’s amendment is about: making sure that we stop talking about what is wrong, stop talking about what we should all be doing, and start to do it. If that is to happen, it needs a cross-section of people with a specific responsibility for which they are accountable to make sure it is happening. From that standpoint, I warmly commend the amendment and am glad to support it.
Lord Ramsbotham
In Committee, we had two separate amendments on this issue which was, in a way, a commentary on the fact that the vital issue of women in the criminal justice system was not even discussed in Committee in the other place. I am very glad to have been able to combine the two amendments in one, in the hope that this time we really may get something in the Bill.
I am glad that the noble Lord, Lord Judd, has drawn attention to the need to get something done. Over the years there have been directors of women’s policy, women’s policy units, women’s policy groups, Ministers for Women, Ministers of prisons looking after it, but nothing has happened. Why? Because there has never been anyone who has been the agent for those people, responsible and accountable for overseeing that what is laid down actually happens. I have lost count of the number of times I have said that, but I say it again. The key word “implementation” appears in paragraph (4)(a) of the amendment and the word “delivery” in sub-paragraph (5)(a). With all the wisdom that has gone into this subject from many sources over many years, it is all there. Everyone knows what is to happen. What is lacking now is the drive to get it done. I therefore hope that the Minister will go away from this particular stage and reassure us that this time something will be done to action what is so well known.
Lord Dholakia
My Lords, may I first put on record my thanks to the Minister, my noble friend Lord McNally, for a number of changes that he introduced to the Rehabilitation of Offenders Act? I will do so because it has some relevance to the amendment that we are debating, which will assist many women to break the revolving-door syndrome of reoffending. There has been a near-100 per cent increase in the women's prison population in the past 20 years. The Government will find that the single initiative on the Rehabilitation of Offenders Act will help reduce the women's prison population.
I am attracted to at least one element of the proposal contained in the amendment of the noble Baroness, Lady Corston: namely, the importance of the Government publishing a strategy to improve the treatment of women in the criminal justice system. When we debated this in Committee, my noble friend Lord McNally said that the Government’s strategy had been set out by our honourable friend Crispin Blunt in a speech on 20 January. That was a good start, and I certainly welcomed that speech.
My noble friend the Minister then set out a series of measures that the Government were taking to improve the position of women in the criminal justice system. The measures included the provision of resources for diversion schemes for mentally disordered offenders; piloting drug recovery wings in women's prisons; giving women prisoners access to the work programme on release; developing intensive alternatives to custody for women; improving access to the private rented sector for women offenders; and developing support for female offenders who have suffered domestic abuse. No one in their right mind could object to these important and welcome developments.
The occasional speech needs to be crystallised. The published strategy document would start by setting out the Government’s overall objectives: for example, to reduce women’s offending—here I mention the Rehabilitation of Offenders Act; to reduce the unnecessary imprisonment of women; to ensure that every probation area and youth offending team has programmes geared to the special needs of women offenders; to place mentally ill women in appropriate treatment settings; and to increase opportunities for contact between women prisoners and their children.
Since we are all interested in outcomes, the strategy document would then set out the measures that the Government are taking to achieve each objective. Annual reviews would be published, assessing progress against each objective of the strategy. This would enable all concerned with the treatment of women to see that the Government had a thought-out, comprehensive strategy to improve the treatment of women in the criminal justice system. It would also enable the Government to be held to account for progress on each objective of the strategy. Very importantly, it would enable this to be done on the basis of accurate information about the measures that the Government were taking to improve the position.
Far from making life more difficult for the Government, this would help increase appreciation for the range of excellent work that is under way to tackle the injustices suffered by women in the criminal justice system. I therefore hope that the Minister will respond positively to the amendment, and in particular that he will agree to the publication of a strategy on women's offending, followed by annual updates on the progress being made towards meeting each objective of the strategy.
Baroness Gould of Potternewton
My Lords, perhaps I may crave the indulgence of the House; I was not here for the start of the debate on the amendment. Unfortunately, noble Lords moved a bit fast and by the time I got back the debate had already started. I hope that I will be allowed to say a few words as my name is on the amendment.
I start by saying that in no way do I question the Minister’s commitment to reducing the number of women in prison, or to extending support in the community for women who need help rather than punishment. However, I question the Government’s ability to make that happen within the present structure. In Committee, the Minister said that,
“we are working across government as well as with the voluntary and community sector”.—[Official Report, 15/2/12; col. 875].
That is fine, but the rest of his response made it clear that there was little co-ordination across the various elements that were working with government.
This simple and no-cost amendment would provide a model to overcome what is clearly a deficit. It would provide the Government with a strategy for women offenders and women at risk of offending, as well as reviewing the impact of government policies on this vulnerable group. It would also be a driver for local policy to provide co-ordinated and effective work to ensure that women offenders receive the right support to stop their offending behaviour. It is a tried and tested model and it works.
The backgrounds of many women offenders are certainly multifaceted. I will not go into the details as I am sure noble Lords have already heard them. If the Government are genuinely serious about trying to reduce reoffending, we need a holistic solution from all the agencies responsible. Most women offenders have children or are the primary carers for disabled and elderly relatives, so there is an enormous effect on the lives of their families. Many women offenders become homeless: imprisonment will cause one-third to lose their homes and other possessions. They are inadequately prepared for release, with little support and advice on how to cope with the future. Is it any wonder that there is such a high level of self-harming among women who have little hope for the future?
There is no question that progress has been made in recent years, and many extremely committed individuals within and outside the Prison Service have been working tirelessly, but it is essential that the momentum is maintained. The responsibility for that is firmly at the feet of the Government. However, it cannot be achieved by tinkering around the edges, but only by having a well co-ordinated strategy and integrated alternatives to custody via an expansion of the network of community centres. Essentially for the Government, this would save money, which could be used elsewhere.
This year the Government will be reporting to the Convention on the Elimination of All Forms of Discrimination against Women—CEDAW—on progress that has been made since the last CEDAW report five years ago, when the committee welcomed the measures that had been taken but expressed concern about there still being too many women in prison. In their report to CEDAW this year, the Government state:
“The UK Government is committed to diverting women away from crime and to tackling women’s offending effectively. It broadly accepted the conclusions in Baroness Corston’s March 2007 report … and is supportive of reducing the number of vulnerable women in prison”.
However, they are going to have to prove that, by the policies and structures that are in place, because at the moment that sentence lacks viability. Contributions from organisations that work in this field will show that that is the case.
If the Government are, as they say, serious about reducing the number of vulnerable women in the criminal justice system, the structures must be put in place to ensure that the needs of these women are prioritised, not marginalised. Only by addressing the issues strategically and monitoring the outcomes of the work effectively will we see a real reduction in the number of women in prison and the level of reoffending.
I do not for one moment question that the Government accept the seriousness of the situation, but I hope that they accept it in the context of this amendment, which will make a great difference by changing the position we have now. I hope that the Government will feel that they can accept this amendment. If they feel they cannot —although I would have great difficulty understanding why not—perhaps they could agree with the principle behind the amendment, of the need for a co-ordinated structure, and come back to us with a new amendment on Report.
Lord Wigley
My Lords, I support the amendment moved by the noble Baroness, Lady Corston, which will see the establishment of a women’s justice policy unit to review the treatment women received when they enter the criminal justice system. The unit would develop a government strategy for dealing with women offenders and the problems surrounding reoffending. Both these functions would be welcome.
In Committee, I supported an amendment tabled by the noble Baroness, Lady Gould, which called for courts to have regard for the effect of sentencing on dependants when sentencing women. I referred to the admirable work that the noble Baroness, Lady Corston, and her influential 2007 report have done to raise awareness of the particular problems facing women in the penal system. Women tend to fall into crime for specific reasons and, it is often claimed, are penalised more harshly than men.
The effect that prison has on women is more taxing. As the report by the noble Baroness, Lady Corston, points out, prisons were designed for men and thus the conditions are particularly unforgiving for women. For example, recent figures suggest that 37 per cent of women prisoners have attempted suicide, 51 per cent have severe mental illness, 47 per cent have a major depressive disorder, and 50 per cent have been subject to domestic violence and 33 per cent to sexual abuse. Developing a specific strategy to ensure that women in the penal system receive more appropriate services is fundamental if these appalling statistics are to be improved.
That the unit would tackle the problems which often give rise to women offending is welcome. It is a venture which would limit the number of women who end up in contact with the justice system in the first place. This is particularly important when we consider that, according to the Government’s figures, 54 per cent of women who are imprisoned are reconvicted within 12 months, rising to 64 per cent if the sentence was shorter than a year. To tackle offending and to limit reoffending, it is vital to eliminate the problems which cause women to fall victim to this vicious cycle of crime.
I am pleased to see that the unit would review the delivery of services relating to children and families. In Committee, we discussed the effect that sentencing can have on dependants. Some 66 per cent of female prisoners have children compared with 59 per cent of men. The Howard League for Penal Reform estimates that only 5 per cent of female prisoners’ children remain with the family when their mother is incarcerated compared with 90 per cent of male prisoners’ children. Clearly sentencing has an undeniable and often disastrous impact on women’s families. For that reason, more than most, the implementation of a unit to oversee and review strategies for women in the justice system would be a positive improvement, not just for these women, but for society at large.
Baroness Lister of Burtersett
My Lords, I want to make a very brief point in support of my noble friend Lady Corston. She talked about how we cannot leave the issue of women in the criminal justice system to the Ministry of Justice alone. My noble friend Lord Judd made the case for an interdisciplinary approach. Many women get caught up in the criminal justice system because their crimes are crimes of poverty. Women are more vulnerable to poverty than men, and many women in this country are experiencing poverty. They have to manage poverty while looking after their children. As well as a criminal justice system better attuned to the needs of women, we need an anti-poverty policy better attuned to the needs of women. A unit such as this could link the two.
Baroness Stern
My Lords, this amendment does not ask for much. It is indeed modesty itself. It asks for a focus, a group of people in the Ministry of Justice whose job should be to carry forward the excellent policies that the Minister told the House about in Committee. It makes it clear that the Ministry of Justice cannot do this on its own and calls for the Ministry of Health, the Department for Communities and Local Government, the Department for Work and Pensions and the Home Office to be involved—a point that has just been ably made by the noble Baroness, Lady Lister. It makes it clear that they should report to a ministerial group and that there should be an annual report.
This amendment is not a criticism of the Government’s work so far, nor of that of the previous Government. It is recognition that this is a particularly intractable problem. Efforts are made by many people, and the situation gets a little better, but then it reverts. The Minister will know, because he has just kindly answered a Written Question that I asked, that the Chief Inspector of Prisons said of the Keller unit at Styal prison that it constitutes,
“a wholly unsuitable place to safely hold and manage very seriously damaged and mentally ill women”.
The conditions in which such women are held in Styal prison have been criticised on and off for many years. On 15 February, in Committee, the Minister said that,
“one does not need to visit many women’s prisons to see that far too many prisoners should not be there”.—[Official Report, 15/2/12; col. 876.]
Ministers have said that before. This is not politically contentious. There is wide agreement about what should happen but sadly it does not change or it changes at the margins—one aspect improves while another deteriorates.
That is why there is wide support among those who are concerned with this issue for a statutory framework, a strategy, a focal point and an annual report that will allow Parliament to see if at last we are moving forwards and seeing improvements that last. I very much hope that the Minister will support this modest proposal.
Baroness Howe of Idlicote
My Lords, I, too, welcome this proposal. All of us have been talking about this area for so long, it is not true. The point about action now, which was made by various speakers, is entirely right. My noble friend Lord Wigley has quoted a number of horrendous figures, which I will not quote again, but the fact that 5 per cent of women’s children stay in the family home should be enough to indicate just how disastrous the effect of imprisoning women is on family life and on the futures of those children.
I very much hope that the actions already begun by this Government, and those started under the previous Government, to do much more to keep women out of prison will continue, which is entirely the right way to work. There needs to be intensive work and support at differing levels, both at professional and volunteer levels, to see the women out of these crises. Women prisoners outnumber men who self-harm, have mental health problems and so on. The situation is horrendous.
Without overemphasising absolutely everything about this issue, I hope that all departments will come together. I want to see good examples of what can happen in a women’s prison, but I also want to see it as an example of what would be effective for a number of men as well, particularly young offenders. I hope that the Minister and all those involved in this issue will treat it with urgency.
Baroness Linklater of Butterstone
My Lords, I add my wholehearted support to what the noble Baroness, Lady Corston, and everyone else around the House, has said. There has been no dissent. How could there be? It struck me that the proportion of women in the prison system is roughly similar to the proportion of children. Those are our two most vulnerable groups and the groups for whom we do least well by and least well for. They are the most vulnerable and the most needy.
It is very nice to see the noble Lord, Lord Warner, in his place, because the previous time we worked together—I imagine that we are together on this—we were fighting to save the YJB. I remember saying then that we must not allow ourselves to think for one minute that children are small versions of adults. Their needs are so different. Women are not other versions of men. Their needs are also extremely different. When the noble Baroness, Lady Corston, was quoted as saying that these prisons were all designed for men, she was quite right; women were in no one’s mind. They suited, and that was where they were coming from. To imagine for one minute that we could stick women into similar institutions and do them any good was absolutely insane.
If we ever get to what the noble Lord, Lord Ramsbotham, suggested and have someone who is in charge of and leads the way in policy, organisation, delivery and practice for women, I hope that that person will be a woman.
Lord Macdonald of River Glaven
I rise even more briefly to support the amendment. I do not know of a single lawyer, prosecutor, judge or prison officer who does not believe that women’s prisons are full of people who should not be there and, worse, who are being further damaged by being held there. The scandal is that we have all known this for years. Ministers know it, but nothing is done about it. The amendment is a modest proposal in the right direction, and it has my wholehearted support.
Lord Warner
My Lords, I apologise for missing the beginning of this debate, but I was caught on the hop by the speed of progress.
Prompted by the noble Baroness, Lady Linklater, perhaps I may, with some trepidation, remind the Minister of the Youth Justice Board—not to score any points off him but to make the point that that body was set up to produce focus over a continuing period of time and to bring a range of agencies together to focus on the need of that particular group of offenders. I think the Minister accepts that some progress was made in youth justice by that kind of approach, and I hope that he will apply that approach and the same logic to women. I thoroughly support my noble friend’s amendment.
Baroness Gale
My Lords, I join noble Lords all round the House in supporting the amendment. There has been not one word of disagreement, and I am sure the Minister has listened carefully to what noble Lords have had to say on this issue.
I believe, as does my Front Bench, that the amendment can help to focus a national debate on the needs of women in the criminal justice system more effectively over the coming years, whatever Government are in office. My noble friend Lady Corston referred to what the Chief Inspector of Prisons, Nick Hardwick, said a few months ago. Two of the words he used to describe the state of the women’s secure estate were “aghast” and “ashamed”. I am sure that everyone who has spoken and has any knowledge of the subject would agree with those words.
In my view and that of many of my noble friends, the secure estate is too often no place for women. The majority of women in detention have not committed violent crimes. They are mothers, and each year more than 17,000 children are separated from their mothers because of imprisonment. Many of these women are victims themselves: one in four women in prison was in local authority care as a child; nearly 40 per cent left school before they were 16; over half have suffered domestic violence; and one in three has suffered sexual abuse.
I do not believe that anyone who has read the 2007 report of my noble friend Lady Corston has not been impressed by her recommendations—as my noble friend said earlier, it is now five years since the report was presented—by the examples she gave, by the intellectual force of her arguments and by the way in which these could be translated into effective solutions. We did not do enough to put those solutions into practice but we did make some progress. We continue to listen carefully to what my noble friend Lady Corston says on these matters because of her great experience in this field.
The Women’s Criminal Justice Policy Unit in the MoJ will help to bring her recommendations to life. It will provide a safe and collaborative environment within government and across departments for real joined-up thinking on these matters.
To deal with women’s needs in a holistic way—their health and social welfare needs and how local authorities, the Home Office and other bodies could work to keep them out of crime and out of jail—there is a need for all government departments to work in this collaborative way because the needs are so great and the challenges so important. The results would certainly be more beneficial, not just for the woman involved but for her family and the society that she comes from.
With this great agreement that women should not be in prison—every report that one has read over the years has said the same thing, and all Governments agree—I would hope that this amendment could be put into action. I pay tribute to my noble friends Lady Corston, Lady Gould and Lord Judd and the noble Lord, Lord Ramsbotham, who put their names to this amendment, and to all those who have taken part in this debate this afternoon. They spoke with such passion in the belief that something should be done on these matters. I know the Minister is concerned about this and I am sure that he will look at this very favourably in the cause of justice for women. I look forward to his response.
Lord McNally
My Lords, the noble Baroness, Lady Corston, said that she had discovered over the years that she had become not only an adjective but a noun as well. I told her last week when we met that she was well on her way to becoming a national treasure—something I would not wish on anybody. Her report was certainly a landmark report. It is required reading for me and I listen carefully whenever she speaks and when other experts in the House speak on this subject. I also listen carefully to criticisms such as those recently made by Nick Hardwick and repeated today by the noble Baroness, Lady Stern.
I should like briefly to mention our response to those criticisms, and particularly to his criticism of the Keller unit. This is being reviewed and a number of recommendations have been suggested. The potential for the provision of updated facilities to supplement or replace the Keller unit is being reviewed by the National Offender Management Service. However, the majority of recommendations have been actioned, including the development of healthcare and support, including mental health, first aid, training in positive behaviour, support methods, the presence of a registered mental health nurse seven days a week, structured therapeutic programmes provided by mental health occupational therapists and a co-ordinated approach to the clinical review of patients. There is also the introduction of a programme of structured intervention on a daycare basis that is accessible to the residents of the Keller unit. Steps have been taken to ensure the timely sharing of records between mental health and primary care teams. The new governor of HM Prison Styal is currently reviewing the role of the Keller unit, alongside the development of other specialist accommodation in the prison to meet the needs of women with a range of complex problems. The review will continue, and the prison is currently bidding for funding to establish a therapeutic unit.
I emphasise from this Dispatch Box the importance I attach to a strategic and coherent policy addressing the problems of women at risk and the problems of women in prison and on release. The noble Baroness, Lady Gould, and the noble Lord, Lord Wigley, gave us the statistics that underline the importance and urgency of this matter. As the noble Baroness, Lady Corston, mentioned, I had an interesting and informative meeting with Peers and stakeholders last week on the occasion of the fifth anniversary of the Corston report. The noble Lord, Lord Judd, paid tribute to the long-term interest of the noble Baroness in these issues. My interest has grown with every month that I have been in office, every visit I make and every meeting I hold. As has been said, we have too many women in prison and we intervene too late.
However, I do not believe that a women’s justice policy unit bringing together officials from several government departments, as proposed in this amendment, is necessary. That approach was tried a few years ago, but I understand was discontinued after a year or so. I can reassure the House that there continues to be a dedicated resource to women offenders within the Ministry of Justice. However, rather than co-locating staff from other government departments into the Ministry of Justice, officials now work closely with a wide range of rehabilitation reform policy leads in those other departments who are best placed to address the needs of women offenders in their policy areas, including health, employment and homelessness. These close working relationships across departments help to ensure that the needs of women offenders are embedded in cross-government policy-making.
As I explained in Committee, this cross-government approach receives strong leadership from the Minister for Prisons and Probation, my honourable friend Crispin Blunt, who works closely with his ministerial colleagues, in particular the Minister for Women and Equalities and the Parliamentary Under-Secretary of State for Equalities. The amendment suggests that the policy unit would report and be answerable to an interministerial committee. I do not believe that we need any additional interministerial governance for the women’s agenda. The Inter-Ministerial Group on Equalities, on which Ministry of Justice Ministers sit, has responsibility for driving forward the Government’s equality strategy, including strategic oversight of issues affecting women. Departments also work together through the Cabinet Committee on Social Justice and the All-Party Parliamentary Group on Women in the Penal System.
Finally, let me assure noble Lords that officials are already delivering effectively the functions envisaged for the new policy unit. As I explained in Committee, we already have and are delivering a strategy for women offenders. This ensures that women will benefit in key areas such as mental health, drug recovery, tackling violence against women, troubled families and employment. It recognises the important role of women’s community services, as well as the good work by NOMS to implement many of the recommendations in the noble Baroness’s report. We also actively consider gender equality as required under the Equality Act 2010. We are committed to monitoring progress on achieving key outcomes for women offenders in all areas of our approach to rehabilitating offenders. For example, in setting out our plans radically to reform criminal justice through improved punishment, payback and progression of offenders, we have looked very carefully at how these reforms will impact on women, and have given a clear commitment that we will take into account the different profile of women offenders in achieving this, including the reasons underpinning their offending. I believe that there is effective provision to ensure that the Government are held to account for progress against this agenda.
The noble Lord, Lord Ramsbotham, gave us a long list of titles and initiatives, but he also pointed out that nothing has happened. What we need is what the noble Lord referred to: a drive to get it done. I believe that this is what the Government are doing—a drive to do practical things. In Committee, I undertook to consider what more we could do to communicate our priorities for women because, as I have emphasised, I believe that the priorities and policies are already in place. While I do not believe that we need a statutory requirement to report annually to Parliament on our work, I have agreed with my honourable friend Crispin Blunt that we will publish a short document setting out our strategic priorities for women. We will place this on the Ministry of Justice website for easy reference. It will be a live document that can be updated as necessary and will be available to promote questions and debate both in this House and the other place on the progress being made. We will continue to listen to noble Lords on this important issue. Noble Lords sometimes overemphasise the importance of writing things in the Bill. I believe the greater importance is, in the words of the noble Lord, Lord Dholakia, in achieving outcomes.
I have listened carefully to this debate. It has been an excellent debate, and I think it will read well outside. I honestly do not believe it is a matter on which the House should divide. I am not in a position to accept the amendment and, therefore, if the noble Baroness does press it, I shall ask my noble friends to vote against it. I would rather urge her to withdraw it in the spirit in which this debate has taken place.
I have said that we will publish a strategic document. It will be a short document setting out our strategic priorities for women. It will be a live document and will be updated. I believe that goes some way towards what the House has been asking for. I believe also that what we are doing in practice meets the demands that have been before the House today. In that spirit, I urge the noble Baroness to withdraw her amendment.
Baroness Corston
My Lords, I am grateful to noble Lords on all sides of the House who have spoken in support of this amendment. I am grateful to them for highlighting the profile of the women about whom we talk. They are poor, they are mothers, they are mentally ill, they are alcoholics, they have very little education, and they have no life skills. They are in prison for an average of 28 days, at the end of which they have lost their homes and children and generally do not get either back. It is a huge social issue, and this is the place where it can be resolved.
I have to say that the Minister is badly advised. One of the reasons progress was made from 2007 was because a women’s criminal justice policy unit was established, and because there was an interministerial group run by Maria Eagle, who harried officials, organisations and NOMS to make sure that this happened. On her watch, more than 30 so-called Corston women’s centres were set up across the country to reduce women’s offending, with spectacularly wonderful results.
To say that there was not an interministerial group is not right. Nor is it right to say that there was not a unit, in that I know that the people working in that unit from different departments made things happen. Indeed, collocation of staff from different agencies in youth offending teams and the Youth Justice Board was the key to getting agencies to work together. If you do not have that nationally, it will not be reproduced regionally and locally.
As the noble Baroness, Lady Stern, who I think of as a friend, said, you can make progress but you can quickly revert. All I say to the Government is that quick reversion is what will happen. I am sorry to sound so passionate, but it is because I feel passionate. I wish to test the opinion of the House.
“Awareness of sentencing options
(1) The Lord Chancellor shall, by regulation, promote arrangements to ensure that each Probation Trust provides adequate information about community sentencing provision to all magistrates in the area for which it has responsibility.
(2) Regulations under subsection (1) may provide—
(a) guidelines for liaison between magistrates and Probation Trusts;(b) a reimbursement scheme for magistrates expenses under paragraph (a); and(c) such other provision as the Lord Chancellor thinks appropriate.”
Baroness Linklater of Butterstone
My Lords, in moving Amendment 151A I shall speak also to Amendment 151B, with which it is grouped.
I am bringing back these amendments following the discussions on them in Committee, both because I believe them to be very important and because the amendment expresses a view shared by noble Lords from all around the Chamber without a single voice of dissent. They were views expressed by people of such knowledge and distinction that there was an obligation to try once more to persuade the Government of the importance of this case.
First, I thank those noble Lords who have added their names to the amendments, in particular my hero the noble and learned Lord, Lord Woolf, who was also poised to add his name to the list but was not allowed to do so. The Public Bill Office informed me that my list was already full—four names were all that were allowed—so my list has lost a little of its potential lustre. I regard the noble and learned Lord as being on my list in spirit if not in fact, and for that I am extremely grateful to him.
Although technically these are amendments they are in fact proposed new clauses, which do not amend but rather underpin the central objectives of this part of the Bill: to reduce the prison population and develop the use of alternatives to custody, and so reduce reoffending. I am a wholehearted and paid-up supporter of the Bill in these key respects, and I have worked all my life to promote the same objectives. They were also, of course, the core objectives of the Government’s policy as set out in the Green Paper. I regard these clauses as enabling ones, which ensure that the Government will achieve their objectives—and without which their success is far from being assured. Indeed, I believe that the Government need these clauses if they are to succeed.
In addition, the magistracy and the probation trusts, the organisations about which I speak, need these clauses as well. They are unequivocally in support of them because they know that if they are to be enabled to achieve their objectives, which are in line with the Government’s own, they too need them. I pay tribute to all the work that they do in their different ways. The magistracy is the bedrock of community-based justice—the representatives of our communities across the land, delivering justice locally. They are hard-working and dedicated, sustaining the peace of the realm within the law and all selfless, voluntary and unpaid. I was a magistrate once and I know how much it takes, in terms of not just time but care and effort, to try to get things right for the victims and the offenders, and for justice to be done. Their task becomes ever harder over time, as our society becomes more complex and difficult to navigate for so many.
By the same token, the work of the probation service has become ever harder but ever more necessary and valuable. As patterns of offending change and prison numbers rise, it has to provide the courts with pre-sentence reports, carry the challenging responsibilities of MAPPA and support offenders in the community, while facing more uncertainties about its own future as yet another review of its work and role is under way, causing anxiety all around. I have also been a fellow social worker—a childcare officer in my far-off youth—and my admiration for the work of probation is boundless. I also declare an interest as a patron of the old Probation Association. I know how much we all need those people, as they work at the interface of the courts and the community, protecting us as they work to reduce reoffending and meet the challenges of offenders.
These are the people who actually deliver the programmes that magistrates need, and they too are solid in support of these proposed new clauses. They know that statutory liaison is necessary to bring about the understanding by magistrates of the intricacy of what is provided in the community for the courts. From the distance of politics or non-penal worlds, it can perhaps be difficult to understand the subtleties of the relationship between these two organisations. The world of the courts is and must be at a certain remove from the day-to-day reality of the world of those who transgress and break the law, but that is where probation also operates. Good and valuable relationships can of course be, and often are, developed between individuals in both worlds. Yet you cannot conduct a system of professional interaction based on the arbitrariness of personal relationships. We discussed at Second Reading examples where we know that good liaison between probation and the magistracy frequently occur. However, we cannot deliver the sort of high-quality, highly professional service we need on that basis alone without communication and co-operation becoming uneven and patchy to the extent that we have seen happen since 2000, when the statutory basis for the relationship was abandoned. All high-quality, professional service must have a high-quality, professional structure within which to work. This is what these professionals want and it is what our communities need.
The magistracy has roughly 29,000 members and probation trusts nearly 12,000 probation officers and probation service workers, though these are slightly old figures—about 18 months old. These are dynamic institutions doing difficult, highly skilled, professional work, where change is an essential part of the progress. They must have a basic statutory basis on which to conduct their business and keep up to speed with each other. To leave it to a voluntary local effort is simply not in the nature of these national bodies. It is important that all magistrates—not just some eager ones—know what their local probation service is doing. Such is the pace of change that contact must be regular in order for everyone to be up to speed. Both parties in this area agree with that. For sentencers, this is important to be able to make properly informed disposals. Custody should never be used because a sentencer is not aware of a programme or a service which could have been a better alternative. This is sometimes tragically still the case today. While the pre-sentence report and information leaflets give a flavour, there is absolutely nothing to match or beat seeing and talking to the providers and the offenders. Quite simply, seeing is believing. This is not rocket science.
In Committee, the Minister said,
“unless we have public confidence in non-custodial sentences we will have criticism of them. We have to win that public confidence”.—[Official Report, 7/2/12; col. 170.]
How right he is. Where do we start? We start with the sentencers themselves, whose use of them will justify and develop confidence. As their own confidence grows, the more they learn. My noble friend also said that he was not aware of any obstacles to magistrates making regular visits. He is quite right; there are no obstacles. However, we need more than a mere desirable aspiration; we need a requirement, if all concerned are to understand the importance of visits and keeping abreast of current provision. I referred to the senior presiding judge’s recently revised protocol in Committee, which sets out voluntary arrangements for probation trusts, courts and magistrates. However, I am told by the Magistrates’ Association itself that, even where relations are very good, the involvement of all magistrates is “rarely achieved” and “aspirational”.
Lastly, magistrates’ expenses have in the past been a thorny issue. Expenses stopped in 2000 when liaison ceased to be statutory. I have already referred to the extraordinary and voluntary commitment of time, effort, skill and responsibility—on every level—of magistrates to their role on behalf of us all. These visits represent training over and above their duties and commitment. It seems petty and short sighted in the extreme to begrudge a bus or train fare, or petrol, to go and learn about a programme, which, if understood and then used, will save the community that proportion of the annual £40,000 cost of each prison sentence and will significantly increase the chances of reducing reoffending at a fraction of the cost while making our communities safer. That is an achievement which I think goes beyond price. My noble friend the Minister told us in Committee that Her Majesty’s Courts and Tribunals Service was “looking at” this issue, which suggests at least a recognition of the right way to proceed and where its duty lies. I hope I am right about that.
I believe that this proposed new clause is what the Bill needs really to succeed in its admirable core adjective. I know that my noble friend is expected to make no concessions beyond those already agreed but I also know that it is possible to keep her heart and mind open to argument—otherwise, what are we all doing here? My case is that this simple new clause is not an amendment to anything already in the Bill but would add something which endorses it and ensures that what it stands for is achieved: namely, a safer, more civilised society with less reoffending as a result of less imprisonment and more community disposals. I commend the new clause to the House.
Lord Judd
My Lords, I am very glad to support this amendment. The noble Baroness speaks with real experience because she has done a lot of front-line work in precisely this sphere in trying to bring the probation service and others together with magistrates and, indeed, judges. She is to be commended for that. She speaks in this House having done that.
I am glad that she took the opportunity to say a few words about the probation service. In my younger life, the probation service was one of the hallmarks of a decent society. It was a service in which people either had real, relevant experience of life and brought that to the service or had a good, sound, broad education to a high level and were able to bring that perspective to the work which they did. Ideally, it was a combination of both those things.
I am afraid that the probation service has been subjected to pressures and has been propelled towards becoming a sort of alternative to a custodial sentence. The old probation service concentrated on rehabilitation; it was not solely about punishing people. The sentence is the punishment. The people concerned have been told that they are being punished by society and are reported as such in the press. The task the probation service used to take on was that of helping the people concerned to become positive, constructive citizens. However, the service is now so harassed and pressed that it is very difficult to see how that work can properly be done at all, or whether indeed there is cultural leadership on what the task really is—let us be frank about that.
I cannot think of a more practical, sensible arrangement than to ensure that magistrates are not only encouraged but propelled, as it were, into meeting probation service staff, having discussions with them, obtaining information and seeing for themselves the reality of what the probation service does as part of their preparation for the work they will be doing in magistrates’ courts. Two things about magistrates are relevant in this context. I speak as someone whose mother was a magistrate and loved her work. One is that magistrates live in society—that is a strength—and are therefore bombarded by the popular press and everyone else with all kinds of prejudice and superficial judgments. To withstand that kind of psychological pressure, they need to have real exposure to and a real understanding of what is being done.
Lord Ramsbotham
I was very glad to put my name to this amendment. As always, it is a pleasure to follow the noble Baroness, Lady Linklater, and the noble Lord, Lord Judd. On this occasion, I do so because it provides an opportunity, which is not present in much of the rest of the Bill, to mention the problems faced by the probation service.
It was a great pity when the probation service was made subordinate to the Prison Service under the arrangements of the National Offender Management Service because for years they had worked closely together with the courts and the police in the local area. The amendment draws attention to that relationship. It also makes the point that magistrates must know what is capable of being done in prisons so that there is relevance between what is ordered to be done for the rehabilitation of someone and what is able to be delivered. That will be different all over the country, and rightly so because conditions will be different. Also, as I mentioned in Committee, if prisons and the probation service had to do the same thing everywhere, it would help sentencers enormously to know what was there and what was not there, and the Ministry of Justice would also know what there was and could make good any shortfalls.
The other day, I was very alarmed to hear that the governor of Lindholme, Moorland and Hatfield prisons in Yorkshire had ordered the probation service out of those prisons because the local probation service in that part of Yorkshire was having to work with G4S over the provision of probation services. Presumably, that must have been under the direction of the National Offender Management Service and under all the marketing strategies that it is following. I mention that because I am very disturbed about probation services being marketed when the service is concerned with the face-to-face probation officer and offender relationship, which is absolutely crucial to rehabilitation.
I do not know on what authority the governor ordered the probation service out, but it is alarming because, if he is able to do that, he is interrupting the whole rehabilitation process and drawing attention to the fragility of probation, which must work closely in the community, with police and probation being subordinate to prisons. Therefore, apart from supporting this amendment, which I think improves the Bill and draws attention to the rehabilitative element of all that is going on, I am also glad that it allows us to draw attention to the problems faced by the probation service without which we are not going to be able to reduce the vast numbers in prison who are choking that system.
Lord Ponsonby of Shulbrede
I support the amendment in the name of the noble Baroness, Lady Linklater. I agree with everything she said. I remind the House that I currently serve on one of these committees in central London. It is not a statutory committee, but it is a very important committee from which I certainly benefit in my work as a magistrate, as I know all my colleagues do. Nevertheless, I want to make the point that there are other statutory committees. I am thinking of the bench training and development committees which are required to sit under statute. With the best will in the world, the officials administer those committees more thoroughly than they do the probation liaison committees, precisely because they are not statutory committees. For that reason alone, I recommend to the noble Baroness, Lady Northover, that the statutory provision would add weight to what is, after all, one of the Government’s primary objectives, which is to make sure that the magistracy has confidence in community sentences.
Baroness Howe of Idlicote
My Lords, I support the amendment. The noble Baroness, Lady Linklater, knows so much about the probation service and the magistracy. She draws attention to very little of which we should not take a great deal of notice. What my noble friend Lord Ramsbotham has just said about what is happening in the probation service is alarming. I hope that someone will be able to explain what has happened in a way that makes sense. I go back a long way within the areas of the magistracy and probation and the tremendous work that they do with offenders over very many years. I was a juvenile court chairman. I was horrified when I read the report by the noble Lord, Lord Carter of Coles. At that moment, I said to myself that if I were a probation officer, I would leave the service because I knew it had no future. It is, therefore, even more worrying to me that the whole of the very effective work that it still carries out is under this kind of threat. I hope that the Minister will be able to reassure us that this is not the way forward.
Lord Beecham
My Lords, as a signatory to the amendment, I am pleased to say that the Opposition is more than happy to support it and should the noble Baroness not receive a satisfactory answer from the Minister—we live in hope—and wish to press the amendment, we will certainly endorse it. I was particularly impressed by the remarks of my noble friend Lord Ponsonby, who speaks from direct and daily experience of these matters in a busy court in the capital. We are already 25 minutes into this debate and there is much more to come, so I am content to rest the Opposition’s case at this point.
Baroness Northover
My Lords, this amendment returns to issues raised by my noble friend Lady Linklater in Committee. I very much welcome the contribution that she has made on this issue during the passage of the Bill. My noble friend has considerable experience, to which other noble Lords have referred, in bringing magistrates and probation together and building trust in alternatives to custodial sentences. She is very much to be applauded for that. Like her, I pay tribute to the work that magistrates and probation trusts do.
We agree with the noble Baroness that it is important that probation trusts provide information to sentencers about the services they provide in delivering community sentences. We encourage that sharing of information. We agree that such liaison is beneficial both to magistrates and probation. We also agree that it is important that magistrates see for themselves the work of probation trusts. We agree with the intention behind the amendment, but we would point out that the current provisions in legislation already allow for this kind of liaison between probation and magistrates to take place. The noble Baroness is seeking to get two sets of people to talk to each other and that can already happen. There is no statutory barrier to it, but I hear what she says about trying to ensure that this happens, and we are certainly in favour of promoting best practice. We will look to see if there is more that we can do to ensure that best practice is brought to the attention of probation trusts. We are also ready to work with the Magistrates’ Association and others to ensure that we have practical arrangements in hand to encourage magistrates to take part in meetings so that information can be exchanged. We can, however, do this without changing primary legislation. I also note that the amendment does not ensure that magistrates attend these meetings—which would, of course, not be appropriate—it instead places the duty on probation trusts to provide information. As my noble friend Lord McNally said in Committee, we are not aware of a problem in the provision of information but would welcome further information on it if one exists.
I understand what the amendment is trying to achieve. It provides two illustrative examples of what regulations might cover. They include guidelines for liaison and a scheme for magistrates’ expenses. I would like to point out to my noble friend that both of these are, in fact, already covered by existing arrangements. Guidelines for liaison meetings are set out in a protocol issued not by the Government, but by the senior presiding judge. We think it is right that the protocol should set out the process so that there is no suggestion that magistrates should be unduly influenced in sentencing by consideration of a local probation trust’s priorities, rather than what they see as the appropriate sentence in an individual case. That is why the senior presiding judge issues guidance, not the Government. We agree that there should be guidance on these meetings, but we think that the current system is more appropriate and that the guidance—especially since it applies to the judiciary—should come from the senior judiciary, not the Government.
The second example which the noble Baroness gives relates to the payment of expenses. It is true that Her Majesty’s Courts and Tribunals Service does not routinely pay expenses for meetings between magistrates and probation. That does not, however, mean that magistrates can not claim expenses. They can, in fact, claim expenses from the probation trusts in attending these meetings. This is an area where the Government might assist by doing more to publicise the process if magistrates are unaware of it. We will certainly consider, as a practical approach, encouraging better liaison by publicising this.
The noble Lord, Lord Ponsonby, referred to a statutory committee. The amendment would not create a statutory committee; it would merely provide a regulation-making power to promote such arrangements if that was what was decided. On the questions of the noble Lord, Lord Ramsbotham, about ordering the probation service out, we are not aware of the detail of that situation. We would welcome further details, and I will then write to the noble Lord with our reaction to what sounds like a very concerning incident.
I hope that the noble Baroness is reassured that we are committed to best practice regarding liaison and that we will look at practical solutions. We welcome her input on guidance and expenses under the current legislation. I hope that, on that basis, she will feel able to withdraw the amendment.
Baroness Linklater of Butterstone
My Lords, I cannot thank everybody who has contributed to this debate warmly enough. It debate has raised many interesting, detailed elements; in particular, what the noble Lord, Lord Ramsbotham, was saying about the serious knock-on effect for the old relationship that the probation service had with its community after it came under the umbrella of NOMS. The example of Lindholme indeed merits some careful examination.
I am grateful to the noble Lord, Lord Ponsonby, for making reference to other statutory arrangements. As I understood it, my amendment was to recreate the very effective statutory liaison which existed previously. There was a reality to the liaison until 2000. This needs looking at again. I understand the point made by the noble Baroness, Lady Howe, about the worrying nature of the Carter report. I hope that it has, as it were, melted away. I must, as always, thank the noble Lord, Lord Judd, for his incredibly enthusiastic and good comments on this subject which are very heart-warming.
The Minister made some promises. I do not know to what extent they will make a difference, but just as I have encouraged her to have ears to hear, I had better have some ears to hear myself. I was minded to divide the House at this point but I do not think it would be proper until I have learnt a little bit more about what her promises mean. I will indeed return and look at this again, but for the time being I beg leave to withdraw the amendment.
Amendment 151A withdrawn.
Amendment 151B
“Short prison sentences
A court may not pass a sentence of immediate imprisonment for a term of less than six months unless it considers that no other method of dealing with the offender is appropriate, and must state the reasons for its opinion in open court in accordance with the provisions of section 174 of the Criminal Justice Act 2003 (duty to give reasons for, and explain effect of, sentence).”
Baroness Linklater of Butterstone
I am sorry, my Lords—you must be getting very bored with the sound of my voice. I move on briefly to the second, connected clause, which is about the presumption against short sentences.
The presumption against short sentences carries with it the expectation that low-level offending will receive an effective community sentence which is designed to address the causes of offending behaviour and to emphasise that it is in this category that reoffending is the highest of all. This is the greatest area of sentencing failure in this country today, contrary to the central goal of government policy which is to reduce reoffending. There may, of course, be times when a short prison sentence has a place. An example might be when an offender is constantly breaching a non-custodial order and the magistrates feel that they are left with no option. Or it may give the victim of an offender a brief break from the hell of a violent partner and the chance to make changes to her life in the breathing space. These are legitimate but there should be a presumption against these short sentences which is not the case at the moment, as witnessed by the 38,000 sentences of three months or less in the year up to March 2011. That is an astonishing figure; these cases should be the exception and not the rule.
I suggest that we should follow the example of Scotland, where Section 17 in Part 1 of the Criminal Justice and Licensing (Scotland) Act 2010 is entitled, “Presumption against short periods of imprisonment”. Subsection (3A) states that a court,
“must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate”.
This is a proper model to follow.
Many of these sentences are for women, as noble Lords mentioned in our debate on the previous amendment. They are just enough to do disproportionate damage to children, families, jobs and housing, and to the ability of chaotic, vulnerable people who commit minor offences to keep their lives together at all.
Imprisonment results in even greater chaos to the community, which then has to manage that chaos and to deal with the inevitable reoffending, whereas preventive, effective work through community disposals is far more likely to effect change and make people face up to the causes and effects on others of their law-breaking behaviour. Short prison sentences do absolutely nothing to address offending behaviour. No provision exists during or after imprisonment—hence the reoffending results, at great and disproportionate cost to the community.
It is also worth re-emphasising that where communities want and need to demonstrate toughness in punishment, community sentences are the tough option—and are seen as such by offenders. It is much tougher to be made to face up to what you have done, and why, than to sleep away your sentence in a prison cell; and to learn about the consequences of your behaviour and be made to put something back into the community, for example by doing unpaid work.
An inquiry chaired by Peter Oborne and commissioned by an organisation called Make Justice Work, which is doing a lot of effective work in this field, highlighted how effective community sentences were seen to be by offenders, as well as how much more successful they were at tackling reoffending. This ties in with my earlier remarks about magistrates knowing what community sentences are like. If properly informed, they will be at the front line of awareness of the quality of the programmes, and of what works and is being well done, which will ensure that standards are high. I greatly welcome the Government’s plans to start a consultation on the effectiveness of community sentences, and I look for reassurance from the Minister that a presumption against short sentences will form part of the framework of their thinking.
The second reason that I return to this subject is the need for sentences to come with an explanation in court of the exact reasons for a disposal—and in particular, where the threshold for custody comes in a case, and precisely why and how the threshold has been passed so that a community penalty has become inappropriate. Perhaps the Minister will confirm, following a letter of 15 March from the noble Lord, Lord McNally, whether under new Section 174, to be imported under Clause 61 of the Bill, the sentencing judge or magistrate must explain to a person sentenced to less than six months in prison that,
“no other method of dealing with him is appropriate, and give reasons, including how the custody threshold has been reached, for that conclusion, whether to him if he is present or under rules made in accordance with government amendment 152ZA”.
I am quoting from the letter. If this is the case, that amendment will be welcome, since previous legislation did not require the degree of clarity and explanation that I sought. I look forward to the Minister’s reply and beg to move.
Baroness Northover
My Lords, Amendment 151B, moved by my noble friend Lady Linklater, relates to the imposition of short custodial sentences. It would place a duty on a court to consider all alternatives before imposing a short custodial term. The amendment would also require the court, when imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate.
As my noble friend Lord McNally said when the amendment was debated in Committee, we completely understand the argument of the noble Baroness, Lady Linklater. We agree that short custodial sentences can be less effective than community sentences in tackling reoffending. The Government looked closely at community sentences and intend to consult very soon on ways to build greater confidence in their use. Our payment by results pilots are also looking to support offenders who are released from short custodial sentences.
As the Minister also said, a duty already exists in current law. I urge my noble friend to look at Section 152 of the Criminal Justice Act 2003, which was passed by the previous Government and places restrictions on courts imposing discretionary custodial sentences. It states:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence”.
That provision applies to all courts that are considering a custodial sentence of any length—not just a sentence of less than six months, to which the amendment is limited. The issue of short custodial sentences has been discussed in Scotland. My noble friend made reference to Scottish legislation. The new Scottish provisions are less onerous on judges than the existing law in England and Wales that I have just explained.
The current requirement on courts considering a custodial sentence is more wide-ranging and onerous than that contained in the amendment. I understand the intention behind it, but I hope that I can reassure my noble friend on this point. I hope that she will feed into the consultation on how to make sure that what is already in law is used as widely as possible. The law is as she wishes it; we need to ensure that it is fully understood and delivered. On this basis, I hope that she will withdraw her amendment.
Lord Avebury
My Lords, what alternatives to imprisonment are being considered to punish the persistent non-payment of fines, which is a very common reason why people are sent to prison for short periods? Is there no other way of recovering the amount of the fine that could be considered by the courts, and is the matter being looked at by the Government?
Baroness Northover
I thank my noble friend for those points, and will write to him with details on them. He may wish to feed in to the consultation on the matter.
Baroness Linklater of Butterstone
I thank my noble friend for answering my short remarks. I will go away to think a little more. In the mean time, I beg leave to withdraw the amendment.
Baroness Northover
“( ) Criminal Procedure Rules may—
(a) prescribe cases in which either duty does not apply, and(b) make provision about how an explanation under subsection (3) is to be given.”
Baroness Northover
My Lords, I turn to a group of government amendments that concern three areas. I will deal first with the substantive amendments. The first concerns the duties on courts to explain a sentence. The second deals with powers to withdraw distress warrants. I will then deal with the grouped technical amendments that relate to the powers of magistrates to impose fines.
First, government amendment 152ZA relates to the revised provisions in Clause 61, which deal with the duties on courts to give reasons for, and explain the effect of, a sentence. These duties already exist under Section 174 of the Criminal Justice Act 2003 but Clause 61 provides for a revised and simplified version of the requirements.
We had an excellent debate on this in Committee. My noble friend Lord McNally was very grateful for the opportunity to discuss the concerns that several Peers had in relation to this duty and the needs of offenders who have learning difficulties or other problems understanding the sentence imposed on them. I pay particular tribute to the noble Lords, Lord Rix, Lord Ramsbotham and Lord Wigley, and the noble Baronesses, Lady Quin and Lady Gould, who have provided enormous insight into the problems that these offenders may face.
As my noble friend said in Committee, the Government were concerned to ensure that we got the balance right between removing unduly prescriptive provisions on sentencers while retaining the important duties to explain a sentence in court. The Government also wanted to ensure that the law remained practical, taking account of the million-plus sentencing decisions made by the courts each year.
The Government have looked again at these provisions, in light of the helpful discussions that we had in Committee. We believe that the basic statutory duties to give reasons for a sentence and explain the effect of a sentence, in open court and in ordinary language, remain appropriate for the vast majority of cases, but we also accept the point made by noble Lords that further guidance on this may be required.
With that in mind, we have looked at subsection (4) of the revised Section 174, which gives a power to the Lord Chancellor to prescribe cases where the duty to explain can be less onerous or not required at all. This power has existed since the 2003 Act came into force but has never been exercised by the Lord Chancellor. On reflection, we think that such a power would be better exercised by the Criminal Procedure Rule Committee, an independent body that provides rules that govern the way the criminal courts operate. The Criminal Procedure Rules already touch on the sentencing process so it seems more appropriate that the committee should have a specific power in this regard.
The first part of this amendment transfers the Lord Chancellor’s order-making power to a rules-making power for the Criminal Procedure Rule Committee. Secondly, the amendment clarifies the scope of the power in relation to the duties on sentencers. The amendment retains the power for the rules to prescribe when the duties to give reasons for the sentence or explain the sentence to the offender do not apply; for example, where the sentence is obvious because there is a fixed penalty or where the case is entirely dealt with on the papers without the offender being present, as happens with many low-level road traffic offences.
I draw particular attention to the fact that the amendment also allows the rules to make provision about how an explanation of the effect of a sentence is to be given to the offender. This allows the rules to cover, if required, any particular circumstances the courts should consider when meeting the statutory duty to explain the effect of a sentence to an offender.
I have no doubt that the committee, in considering this new power, will take account of the debate that your Lordships had in Committee and the helpful representations that have been made from organisations such as Mencap and the Prison Reform Trust. I will ensure that these are flagged to the committee. We believe that the consideration of the detail of requirements is better dealt with via rules than primary legislation. One of the Criminal Procedure Rules already requires the court to,
“explain the sentence, the reasons for it, and its effect, in terms the defendant can understand (with help, if necessary)”.
I thank noble Lords for sharing the benefit of their wisdom and hope that this amendment achieves our goal of allowing for practical measures to be taken to ensure that the duties to explain a sentence are met in every case.
Government Amendment 152BYH relates to a very specific area of the law that deals with distress warrants. Distress warrants are issued following the non-payment of a fine, to recover the value of the fine imposed by the courts. They can be issued by a court or by a fines officer. In Committee, the noble Baroness, Lady Lister, tabled an amendment that sought, among other things, to clarify the law on distress warrants, and in particular whether it was possible to withdraw a distress warrant once it had been issued. My noble friend Lord Thomas of Gresford also highlighted the problem of the inability to withdraw distress warrants.
I indicated in response to noble Lords that the Government were willing to look at the issue and, if a change in the law was necessary, to return to it on Report. That is what we have done. I very much welcomed the opportunity we had to discuss this issue with the noble Baroness, Lady Lister, and my noble friend Lord Thomas of Gresford, as well as drawing on the expertise of the Z2K Trust and the CAB.
We accept that the current law is flawed. This amendment makes a number of changes, mainly to Schedule 5 to the Courts Act 2003. The new clause introduced by the amendment does four things. First, it provides magistrates’ court fines officers with the power to withdraw distress warrants they have issued, in the circumstances specified in new paragraph (40A), which is introduced by subsection (8) of the new clause. This means that a fines officer can withdraw the warrant if there is any part of the sum left to pay and if the fines officer is satisfied that the warrant was issued by mistake. This can include a mistake made as a result of non-disclosure or a misrepresentation of a material fact in the case.
Secondly, the amendment makes it clear in new paragraph (40B) that a magistrates’ court has a similar power to discharge a distress warrant issued by a fines officer as it does to discharge such a warrant issued by the court itself. Thirdly, the amendment enables fines officers to take further steps to enforce a penalty where a distress warrant has been withdrawn, but this time taking into account information that was not available when the distress warrant was issued; this includes the power to issue a further distress warrant. Finally, the amendment enables magistrates’ courts to exercise any of their powers in respect of a fines defaulter where a distress warrant has been withdrawn, including issuing a further distress warrant.
Noble Lords will have noticed that while I have explained the amendment in terms of “distress warrants”, the amendment itself refers to “warrants of control”. That reflects the new terminology that will apply when the relevant provisions of the Tribunals, Courts and Enforcement Act 2007, which are presently the subject of consultation, are commenced. However, transitional provision will be made under the powers in Part 4 of this Bill to the effect that, until those 2007 Act provisions come into force, these provisions are to have effect as if the references to warrants of control were to warrants of distress.
These changes put the question of whether a distress warrant can be withdrawn beyond doubt and provide clear but practical powers for the courts and fines officers to deal with mistakes in the issuing of warrants. I am extremely grateful to the noble Baroness, Lady Lister, and my noble friend Lord Thomas of Gresford, and to the tireless work of Reverend Paul Nicolson of the Z2K Trust, for identifying these problems and encouraging us to address them.
Finally, government Amendments 152BA to 152BYG deal with the changes to magistrates’ fines powers in Clauses 80 to 82. These amendments are largely technical and ensure that Clauses 80 to 82 operate as intended. The policy intention here is unchanged: the clauses remove the upper limit on the level of fines available in the magistrates’ courts on summary conviction. They also allow for the uprating of other fines, in particular by providing a power to increase the maximum fine amounts for levels 1 to 4 on the standard scale of fines for summary offences.
I draw your Lordships’ attention to the set of amendments that applies the provisions to fines imposed for common law offences which can be dealt with by magistrates. These offences—“causing a public nuisance” and “outraging public decency”—were not caught by the previous version of the clauses. It is important that magistrates should have the freedom to impose larger fines for these offences in the same way as they will be able to do when sentencing offenders committing statutory offences.
Overall, these amendments now deliver more effectively the Government’s objectives. I beg to move.
Baroness Lister of Burtersett
My Lords, as the Minister has explained, Amendment 152BYH is in response to an amendment I tabled in Committee with the support of the noble Lord, Lord Thomas of Gresford. The purpose was to remove legal confusion about the power of bailiffs to return a fine to magistrates for consideration. That confusion has resulted in hardship for many vulnerable people.
I am grateful to the Minister and to the noble Lord, Lord McNally, for meeting me and the noble Lord, Lord Thomas, as well as representatives of Zacchaeus 2000 and Citizens Advice to discuss this and related matters. I am even more grateful that the Government agree that the current law is flawed and that this Bill provides the ideal vehicle for removing the confusion. I assume therefore that they do not expect that there will be a further suitable Bill coming along in the foreseeable future and thus they brought forward their own amendment.
I had hoped that I would be able to sit down at this point and that all would be sweetness and light, but as the noble Baroness knows I am worried that the amendment refers simply to the power to withdraw the warrant where there has been a mistake, albeit one made in consequence of the non-disclosure or misrepresentation of a material fact. Rectifying mistakes will not prevent all of the kinds of problems that Zacchaeus 2000 and Citizens Advice have identified. I am particularly concerned about cases where there has been a change of circumstances since the fine was set. For instance, if the debtor’s or defaulter’s material circumstances have changed because of illness, unemployment or relationship breakdown, that could have just the same effect on the ability to pay the fine as if there had been a mistake at the time of the original determination.
I have been in touch by e-mail with the Ministry of Justice about this. Its response was that while the amendment does not cover a simple change of circumstances, it is clear that a debtor can argue that the change of circumstances, if it had been known to the court, would have affected the decision to issue the warrant, so the decision was based on a mistake as to the debtor’s circumstances and that, in other words, the provision in the amendment goes further than the simple slip rule would do.
Will the Minister clarify this statement for your Lordships’ House? I do not really understand what it means. Does it mean that if a debtor’s circumstances change for the worse after the fine has been set and the bailiff is made aware of it, the bailiff can withdraw the warrant and return the fine to the magistrates’ courts on the grounds that the fine would not have been set on that basis had those circumstances pertained when it was set? If it means that, I urge the Minister to withdraw the amendment and make that clear at Third Reading. Otherwise I fear that we face a new source of legal confusion. If it does not mean that, I fear that the amendment will not go nearly far enough to resolve the kind of problems that Z2K and Citizens Advice have brought to our attention. Will the Minister withdraw the amendment and think again before Third Reading? Can the Minister confirm that a mistake will cover cases where the defaulter was not in court when the fine was imposed so that the mistake was made because the full circumstances were not known?
In Committee, the Minister prayed in aid the revision of the National Standards for Enforcement Agents, and in particular the standards they set for dealing with vulnerable and socially excluded people. The revised standards for such situations, now published on the MoJ website, are virtually identical to those previously in operation. It is clear from the experience of Z2K and Citizens Advice that they have not provided an adequate safeguard. That is why we had hoped that the amendment would ensure that bailiffs have discretion within the application of the Wednesbury principles—in other words, a test of reasonableness—to return a fine to the magistrates’ court when they discover that the debtor is in a vulnerable situation as set out in the National Standards for Enforcement Agents.
I am disappointed but realise that the Minister signalled this in Committee. Can I ask that the MoJ monitors this? If it is clear that the National Standards for Enforcement Agents are not on their own providing an adequate safeguard, will the Government consider returning to this issue at the next legislative opportunity?
In conclusion, I thank the Government for having moved on this issue. However, I am seeking assurances about the situation with regard to a change of circumstances, to be made clear in an amendment at Third Reading, if necessary, and about monitoring the effectiveness of the National Standards for Enforcement Agents, which state that,
“the agent has a duty to contact the creditor and report the circumstances in situations where there is evidence of a potential cause for concern”,
to ensure that that happens. Otherwise I fear that vulnerable people will continue to suffer and that legal confusion will continue to reign.
Lord Thomas of Gresford
Having read the amendment as drafted, I was confused as to whether the mistake was a technical mistake, a mistake of law or a mistake of fact of the basis upon which the order was made. It is not clear from the wording here that the latter is the proper meaning. I am heartened to hear from the noble Baroness, Lady Lister, that she has received a communication from the Ministry of Justice saying that mistake does not mean the slip rule, which is a very familiar concept to lawyers. It may not be familiar to the bailiff who is knocking on the door. It is important that my noble friend should make it quite clear that a mistake of fact is needed; in other words, that if the magistrates’ court had been aware of the particular circumstances of the individual at the time that the warrant was to be enforced, it would not have made that order. If that is what it means and the Minister says so from the Dispatch Box, I would be satisfied with that. If that is not what it means, we need to discuss the issue further.
Lord Ramsbotham
My Lords, I speak in support of government Amendment 152ZA and also speak on behalf of my noble friend Lord Rix who unfortunately is unable to be present because of his wife’s ill health. I thank the Minister for the extremely productive meeting that we had, which has been mentioned. The points that my noble friend has asked me to raise arise out of the amendment which came after that discussion in support of what was said.
The context of this is the duty of the court to explain sentences in ordinary language, which we raised in Committee. The Minister admitted that the phrase would ensure only that most people could understand an explanation. While we welcome the amendment and believe that it has the ability to extend comprehension of the effect of a sentence on all parties concerned, which is an important development, we are still not certain that it covers the point about ordinary language. On that, we would like some clarification. We believe that the Criminal Procedure Rule Committee could offer a similar safeguard, but we are not sure about where that safeguard extends and how wide it is. Will the Minister clarify how confident she is that the committee will make rules regarding the need to go beyond ordinary language in certain circumstances? Will it actually make these rules? To what extent are the rules made by that committee binding on the court? The concern is that if the rules are merely guidance, they might not be put into practice, despite the best intentions of the Government and the committee.
Will the Minister tell us about the time scales? When will the committee be empowered to make such rules and when might they be enforced? Are we looking at something imminent? Will it depend on when the Bill is passed? Finally, what opportunities will there be for Members of both Houses to scrutinise the implementation of these measures in the future? If they are rules of the committee rather than something in the Bill, it is more difficult for us to monitor them. They have an enormous effect on the people whom we mentioned in Committee and their ability to understand the process of law.
Baroness Northover
My Lords, this has been another useful debate. I welcome the support of the noble Lord, Lord Ramsbotham, for the Government’s changes to the duty to explain. I encourage him to feed in his concerns to the committee. I have no doubt whatever that noble Lords will scrutinise how the duty is being implemented. The fact that this may not be part of legislation will not stop people reporting, debating and asking whether this is working as it should. The Government clearly cannot dictate to the committee what it should make its rules on and what it should say, but I have no doubt that when and if noble Lords find that this is not being implemented as they feel it should be, that will have its effect.
On distress warrants, I am very grateful to the noble Baroness, Lady Lister, for her guarded welcome of the Government’s amendment. She questioned whether the amendment goes far enough and was kind enough to send an e-mail with a number of questions. She has referred to our response, which gives me an opportunity to expand on or clarify a number of those points. She was concerned, among other things, about whether it allowed for the withdrawal of a distress warrant where there had been a change in the offender’s circumstances or where the offender was deemed to be vulnerable. I will do my best to reassure her on a few points.
It is clear that the government amendment allows for the withdrawal of a warrant where there is a mistake in the decision to issue the warrant in the first place. The amendment covers the case where an offender is not in court when the warrant is issued, which results in the court not having the full information before it. This, in effect, amounts to a mistake. I hope that that also helps to reassure my noble friend Lord Thomas. If there has been a change of circumstances that, had it been known to the court, would have had an impact on the decision to issue a warrant, it is open to the debtor to argue that the warrant had been issued by mistake.
The noble Baroness also raised the question of bailiffs dealing with debtors who find themselves in hardship or appear to be vulnerable. It is important that we strike the right balance between protecting the vulnerable—she is right about that—and ensuring that fines, where appropriate, are paid. Noble Lords will have seen recent criticisms of fine payment rates. The fine is by far the most used sentence of the criminal courts.
In practice, however, when bailiffs come across hardship as defined in the guidance they should not execute the warrant and return it to the court. In response to the noble Baroness, Lady Lister, I must say that we would welcome any further information on this matter and on the effectiveness, which she has queried, of the guidance. It is very important that that is monitored. The Government do not think that it would be appropriate for a bailiff simply to withdraw a warrant in regard to a fine issued by a court. This could undermine the decision made by the court, which is why such a power is not included in the amendment, although I realise that that will disappoint the noble Baroness. If, however, the fine was imposed because the full facts were not made clear to the court, or they had changed, the provision in the Bill could apply.
In the case of changed circumstances since the fine was imposed, the debtor can contact the court at any time to speak to a fines officer to have the matter reviewed. The Government would encourage any debtor to contact the fines officer or court about a change of circumstance, which is clearly a better approach than waiting until a bailiff seeks to execute a warrant, but it is important that we separate the two parts in that respect.
As I said in Committee, the Government think it is important that bailiffs are dealt with via effective guidance, national standards and contractual obligations. As the noble Baroness knows, the Government are consulting on the operation of bailiffs, and we will carefully consider responses to that consultation. I hope that the noble Baroness and the organisations with which she is associated will feed into that consultation.
I hope that the noble Baroness can be reassured that the government amendment addresses the key legal issue with distress warrants and places the decision on them properly with the courts. How bailiffs operate is a matter for consultation in order to make sure that they operate properly and as we would wish. I hope therefore that the noble Baroness is reassured and content with what the Government have brought forward.
Baroness Lister of Burtersett
My Lords, I got the impression that the Minister was saying that outside organisations should do the monitoring. I would argue that the Government have a responsibility to monitor this. I realise that some of this will be covered by the current consultation, but if there is to be a reliance on the national standards and the requirements and standards are not written in the Bill, it is incumbent on the Government to monitor and to make sure, as she said, that these national standards are effective.
Baroness Northover
I understand the noble Baroness’s point. I was trying to indicate that a number of organisations are closely involved in such cases. Their information is extremely useful to the Government because they are often closer. However, the Government have picked up on the concerns, which has led them to decide that they need a consultation on the operation of the bailiffs system. I hope that she will be reassured by that government involvement in trying to take that matter forward.
Lord McNally
Lord McNally
My Lords, this group of government amendments contains a number of minor and technical amendments to suspended sentence orders, detention and training orders, youth remand, and the release and recall provision. This group also contains a few substantive amendments to youth remand. Last week, I wrote to all Peers about these amendments, and a copy of the letter has been placed in the House Library. The youth remand-related substantive amendments in this group mean that any imprisonable offences committed while a young person was remanded in prison will be taken into account in order to determine whether a young person has a history of relevant offending.
Amendments 152ZB and 152BZA remove two provisions that are no longer necessary. Clause 75(10) and paragraph 20 of Schedule 9 contain amendments to the Armed Forces Act 2011. The effect is to modify amendments that Schedule 3 to that Act makes to the Armed Forces Act 2006. This was to ensure that those amendments would work if this Bill came into force before the 2011 Act. In fact, the amendments in the 2011 Act will come into force on 2 April 2012, which makes Clause 75(10) and paragraph 20 of Schedule 9 redundant.
Amendments 152YH to 152YQ are technical amendments that will ensure that Armed Forces legislation properly reflects the changes that the Bill makes to the release provisions in the Criminal Justice Act 2003. The Bill makes changes to Section 240 of the 2003 Act on how relevant periods of remand time are credited towards a prisoner’s sentence, and in Schedule 15 makes certain transitional arrangements. These amendments ensure that these changes are also reflected in the equivalent Armed Forces legislation.
Substantive Amendments 152H, 152K, 152P, 152T, 152U, 152W, 152X, 152YD and 152YF in combination provide that where a young person who is being dealt with under the remand provisions of the Bill has previously committed imprisonable offences while remanded in prison under the current law, such offences can be taken into account when determining whether they reveal a relevant history of offending such that the court may impose electronic monitoring or remand to youth detention accommodation.
Currently, 17 year-olds are treated as adults for remand purposes and can be remanded only to prison. In addition, 15 and 16 year-old boys not deemed vulnerable and made subject to secure remand must also be remanded to prison. Offences committed in prison are not taken into account for the purpose of establishing a history under the equivalent tests in the current legislation, but the restructuring of the remand framework is based on the principle that all under-18s should be remanded according to the same test. Under the new remand framework, remands to prison for under-18s will cease.
These amendments are necessary to ensure that courts remanding offenders under the new framework will take into account any offences committed while an under-18 was previously remanded to prison under the old remand framework. They will ensure that all under-18s subject to the new remand framework or who may be considered for an electronic monitoring requirement on bail are treated equally.
I said before that these are mainly technical amendments, that I wrote to all Peers about them last week, and that a copy of the letter has been placed in the House Library. I beg to move.
Baroness Northover
“(3) In section 223(3) of that Act (power to amend specified periods of time), omit paragraph (c).”
Baroness Northover
My Lords, this is a very important social issue. I do not think that anyone in the House disputes the fact that alcohol-related crime is a scourge blighting too many of our city and town centres and one we must address. I pay tribute to many noble Lords, especially the noble Baronesses, Lady Finlay and Lady Jenkin, and the noble Lord, Lord Avebury, for ensuring that we have reached this point. Through their amendments in Committee for an alcohol-monitoring requirement, this issue was flagged up in the way that it was last year in the Police Reform and Social Responsibility Bill.
In that regard, I also thank the noble Baroness, Lady Browning, who brought her knowledge, experience and wisdom to this area, including when dealing with the previous incarnation of this issue during the debates on the Police Reform and Social Responsibility Bill. The noble Baroness, Lady Newlove, has given an insight into the terrible harm that alcohol-fuelled violence can cause to victims and their families. I applaud the work that she has undertaken to help the Government establish a more effective approach to building active and safer communities, and in particular the work that she is leading to develop community-led, partnership-based approaches to tackling alcohol-fuelled crime and anti-social behaviour.
As noble Lords have demonstrated through their persuasive and informed words, it is vital that we look at new innovative ways of tackling the causes of alcohol-fuelled crime. That is why the Government have committed, as I set out in Committee, to undertake pilots to trial sobriety requirements as part of conditional cautions and community orders. Since then, we have considered the noble Baroness’s amendments. I was also fortunate to listen to the presentation from the United States based around experience in both South Dakota and Hawaii.
We have attempted to capture the essential elements of the amendments of the noble Baroness, Lady Finlay, in order to provide a practical power for the court to impose sober behaviour on offenders who commit alcohol-related crime. Through these means we will send a clear message that if you abuse your right to drink and damage those around you, that right can be taken away from you. That is why the Government are bringing forward their own amendment which provides courts with a new power to impose an alcohol abstinence and monitoring requirement as part of a community order or suspended sentence order on an offender who has committed an alcohol-related offence.
The amendment forms an important part of our wider response to these problems, introducing a new and innovative way of tackling the causes of alcohol-fuelled crime through enforced sobriety schemes. I pay tribute at this stage to the work of the London mayor, Boris Johnson, and the deputy mayor, Kit Malthouse, and to their commitment in this area. Their work on the alcohol abstinence and monitoring requirements is a testament to their determination to make a stand against alcohol-fuelled crime in the capital and we will continue to work with them in the development of this initiative.
The requirement as part of community orders and suspended sentence orders will therefore focus on serious offences, in particular violent offences, where alcohol is often a contributing factor, such as common assault, actual bodily harm, affray and violent disorder. Under the Government’s proposed alcohol abstinence and monitoring requirements, offenders will be required by the court to abstain from drinking for a period specified by the court up to 120 days. They will be required either to attend a police station or test centre to be monitored by breathalyser equipment or to wear an alcohol tag around their ankle. This innovative new electronic monitoring technology will test sobriety at half-hourly intervals during the day.
Before imposing a requirement, the court will have to establish a link between alcohol consumption and the offending behaviour. In a case where the offender does not comply with the conditions of the requirement, existing breach proceedings will ensue and the courts will have robust powers to penalise the non-compliance.
I wish to make clear that this requirement does not amount to treatment. That is not to say that supporting programmes such as alcohol awareness and education courses do not have a use here, alongside the abstinence requirement, to help ensure that offenders seek to change their alcohol-fuelled offending behaviour. However, it is distinct from the alcohol treatment requirement and the alcohol specified activity requirement, which seek to treat dependent drinkers and provide advice and support to offenders with other alcohol-related needs. For alcohol-dependent offenders and others needing treatment these options will continue to be the best avenue for addressing these issues.
These new provisions enable the Government to carry out initial trials which will test the processes and practicalities of enforced sobriety schemes and help build the confidence of the probation officials and sentencers who will operate them. We will make use of the lessons learnt to inform further work in this area. We are carrying out an additional pilot to test sobriety schemes as part of conditional cautions. The conditional caution is an out-of-court disposal which aims to tackle low-level crime. The pilot scheme will therefore be targeted at offences such as drunk and disorderly, criminal damage and public disorder, which account for a considerable volume of alcohol-related offences overall. The condition requires an offender to abstain from drinking on the days they are most likely to offend as a result of alcohol and to attend a police station to be tested, using a breathalyser, on those days—for example, Friday, Saturday or Sunday.
We have already had interest from a number of police areas in piloting the conditional caution scheme, particularly from cities where alcohol-fuelled crime is a severe problem. We heard quite a lot about that in Committee. We will announce the pilot areas in the forthcoming government alcohol strategy. The first conditional cautions enforcing sobriety should be administered from April/May. We believe that this is a considered and effective amendment to test out the important concept of reducing alcohol-fuelled crime.
Amendments 152ZC and 152ZD seek to remove provisions under Section 223 of the Criminal Justice Act 2003 to amend the minimum period of time specified for a drug rehabilitation requirement or alcohol treatment requirement under Sections 209 and 212 of the same Act. The Government are taking forward provisions in the Bill to remove the statutory minimum period for drug rehabilitation requirements and alcohol treatment requirements in order to increase the use and effectiveness of these requirements, allowing for greater flexibility in tailoring and delivering treatment and recovery options to individual needs. Provisions under Section 223 for these requirements are therefore no longer necessary.
The alcohol abstinence and monitoring requirement, introduced by our amendments, is to be available to the courts in England and Wales but not, of course, to the courts of Scotland or Northern Ireland. It is our intention that the requirement should not be capable of being imposed by a court in England and Wales on a person who is resident in Scotland or Northern Ireland. We undertake to bring forward and table amendments at Third Reading to make that clear. I beg to move.
Baroness Finlay of Llandaff
My Lords, I have some amendments in this group, but of course I am absolutely delighted that the Government have decided to bring forward their own amendments. If the House approves those amendments, I will withdraw the amendments in my name. I would like to add my thanks to all Peers from all sides of the House who have worked tirelessly to try to ensure that this localism response for local communities to deal with alcohol-fuelled offences can actually proceed and that this new sentencing ability will be available to the courts. I would also like to single out the noble Baronesses, Lady Browning and Lady Northover, both of whom have gone to great lengths to listen to all sides of the argument and to take those representations away. I know that they really have worked very hard behind the scenes to get to the point that we have reached today.
The government amendments do not include the “offender pay” content set out in my amendments. I understand that this is a complex issue and, depending on the outcome of the pilots, could be revisited at a later stage, but it has wider implications. The advantage of now being able to proceed with breathalyser pilots as well as tags is that, for those who have to present daily or twice daily for breathalysing, they will encounter staff who will be able to see how they are coping and offer them support to cope with all the other aspects of their lives that they have not been managing well and that have been contributing to their alcohol abuse. There is that support element and I know from the United States that the failure rate with tags is about nine times that with breathalysers. That is partly because the offenders tend to think that the electronics will fail and do not believe in the efficacy of the tags. They sometimes try to tamper with them and so on. It will be very important to see how it works here and compare the different systems.
This week there was a motion to seek international endorsement for these types of programmes from the 180-signatory nations to the UN Commission on Narcotic Drugs. These kinds of schemes are being debated there as well. I have had meetings with police officers from different parts of the UK and a consistent story that comes through is that after 10 pm at night alcohol-related problems are between 80 and 100 per cent of their workload, depending in part on the night of the week. Evidence of decreased reoffending has come from the USA and in the pilots we will be able to see whether that is replicated here. There, they are reporting a more than 50 per cent drop in reoffending at three years; a more than 50 per cent drop in drink-driving offences; and a more than 10 per cent drop in domestic violence. There has also been a fall in incarceration rates. Alcohol use appears to be interrupted before the person who has been abusing the alcohol can actually kill somebody, so they have decreased the very serious end of crime as well. We know that in London the Metropolitan Police recorded 18,500 offences flagged for alcohol. Offences involving violence against the person accounted for 64 per cent of those.
Baroness Browning
My Lords, I, too, warmly welcome the alcohol abstinence and monitoring requirement that the Government have introduced, and I thank my noble friend Lady Northover for the hard work that she has put into bringing together all the parties in order to get an agreement. That is why we have this measure before us tonight. Perhaps I may also say that my friend, the noble Baroness, Lady Finlay of Llandaff, and my noble friend Lady Jenkin have worked over the past few weeks not only to bring this to the attention of the Government but to find a solution that will enable us to see this provision on the statute book before, we hope, too long.
These will be trials, of course, and I hope that they prove a valuable tool in addressing the issue of binge drinkers. During the working week many of these people, of whom there are increasing numbers, hold down responsible jobs; but at the weekend they decide that they have not had a good night out unless they get paralytically drunk, to the point where not only do they have to be helped home but—as the noble Baroness knows, having taken me to visit St Mary’s Hospital Paddington to see the work being done there—they take up huge National Health Service resources. I am sure that if we are going to tackle what in this Chamber we euphemistically refer to as binge drinking, these provisions will be valuable across a range of criminal activity and act as a deterrent for the particular group of binge drinkers who will find it difficult to comply with some of these measures during the working week. They may well start to take some responsibility for their behaviour.
The question of when alcohol dependency becomes a medical condition has already been mentioned. I would stress to my noble friend on the Front Bench that the Government should continue as they have started by ensuring that alcohol abuse does not remain the Cinderella of the drugs and alcohol scenario. It is important to ensure that people get appropriate treatment and that it is sustained so that they can recover. As we know, that takes a long time and it takes resources. It is not something that is easy to achieve, but it can be done. I hope that the Government will not take their foot off the pedal in terms of ensuring that proper treatment is available to those who become alcohol dependent.
Finally, these are trials, and as is the case with all trials, it may well be that some defects are identified by the end of the trial period. Some things may not work properly and could be different. If that is the case, I urge the Government not to abandon the trials and say, “Oh well, they didn’t work”—I am sure they will not do that—but to look for ways to modify the proposals, even if it means coming back to the House to make further changes to the legislation. I feel that this is one step on what will be a long journey to identify and address the systemic problems of alcohol abuse that we have in this country.
Lord Brooke of Alverthorpe
I, too, welcome the Government’s statement. I am one of those who have been on this journey since we commenced it in the Police Reform and Social Responsibility Act 2011. Like the noble Baroness, Lady Browning, I want to express my support for and gratitude to the noble Baroness, Lady Finlay. Her single-mindedness and determination have been extraordinary. She has been willing to accommodate the objections that come along, and on the route she has brought together a wide range of supporters for this change, not the least of which is the mayor’s office. Over the period people have quite significantly adjusted their responses.
The noble Baroness, Lady Browning, was also an important part of this process. I agree with what she has just said about how we should move forward with the Government. I also thank the Government for having shifted their position over the past few months. I believe that they have now presented to the House a workable set of propositions. They will be implemented on a trial basis, but they embark on an entirely new approach and are unlike anything we have tried before. It is probably the first time that the word “sobriety” has been used in legislation in this way. I may be wrong on that, but I certainly have not seen it while I have been here over the past decade. It gives us a platform on which we can try to build in the future.
I also congratulate the Government on bringing forward these proposals in advance of publishing their strategy on alcohol. How many times are we given papers and strategies, but not the teeth to accompany them? Yet in this instance the Government are taking action in advance of the words that no doubt will follow when the paper is produced. I think that people across the whole Chamber are very pleased indeed with the progress that has been made over the past months. We look forward to seeing how the trials pan out. They may need to be adjusted, but they will provide the Government and magistrates around the country with a new tool to help us tackle the pernicious problem of the abuse of alcohol.
Baroness Newlove
My Lords, I will not go on for too long because others have covered the issue. I welcome the Government’s take on this, and obviously I want to congratulate the noble Baroness, Lady Finlay, on her hard work. Her foot has been flat down on the pedal. As someone who has suffered and who is passionate about making a change in our society, I am really grateful for these pilots. As we have just heard from the noble Baroness, after 10 o’clock at night 80 per cent of all crime is alcohol-related. My husband was attacked at 10 o’clock, so I reiterate that this is very important.
I welcome these pilots, but as we have just heard, they are only pilots. However, we have to think outside the box. They are risky, but risks can be turned around. It is important that we do not wait for more victims and families to lose loved ones. We must do what we say on the tin and make communities feel safe and be happier places to live in. I receive many letters from people who hide behind their doors because they are scared of what they are going to face outside. I live with that every day and I want to make sure that we tackle this problem. I am very interested in these pilots and I wait with bated breath to see what they do.
Even the magistrates welcome this development; I have spoken to magistrates in two areas. Also, offenders will be helped to turn their lives around. Even so, their lifestyles are no justification. Drugs and alcohol are no defence for murder, but when it comes to sentencing they are seen as mitigating circumstances along the lines of, “Oh but for the alcohol”. We have to stop justifying alcohol abuse and make changes for the better. I really welcome these amendments from the Government.
Lord Avebury
My Lords, I also want to echo the warm congratulations which have been expressed to the noble Baroness, Lady Finlay, on achieving some nine-tenths of what she set out to do in her original amendment. She is quite right to suggest to your Lordships that we should accept the Government’s solution, which omits the “offender pays” part of her original scheme. However, ultimately we will need to consider whether offenders should be made to pay some of the costs that they impose on the community—not specifically in the context of alcohol-related offences, but perhaps over a broader area. I see no reason why “offender pays” schemes should not be considered in a more general way, if not in the context of these particular amendments.
It is excellent news that London is to be one of the pilot areas, considering the huge burden that alcohol-related crime imposes on the capital’s health and criminal justice systems. According to the London health improvement board, the capital suffers a higher rate of alcohol-related violence—particularly sexual violence—than the rest of England, and the total annual cost of the health and social impacts of alcohol misuse to the capital is a staggering £2.46 billion. The more robust the measures for tackling this appalling waste of financial and human resources, the better it will be.
Lord Brooke of Sutton Mandeville
My Lords, I shall be exceptionally brief. Like my namesake, the noble Lord, Lord Brooke of Alverthorpe, I congratulate everybody who has made possible what has happened in the course of the last three or four months. I was a roughrider in the column of the noble Baroness, Lady Finlay of Llandaff, when she originally raised the South Dakota project. I have no intention of repeating anything that I said on the police Bill, except that I am extremely grateful to her for letting me know, after I remarked in the police Bill proceedings that the South Dakota legislation had been transferred into California, that although the Californian legislation is permissive, the Sacramento experiment is going forward. I am wholly delighted by this turn of events. Having had a very minor part at an earlier stage, I find it very satisfying to see the momentum that has gathered.
Lord Beecham
My Lords, I am not sure what the correct collective noun is for a group of persuasive Baronesses, but whatever it is, we—the House, and indeed society—are greatly indebted to this particular group of persuasive Baronesses, supported as they have been by the occasional male Member of this House.
I would like to join other noble Lords in congratulating the Government on responding so positively and readily to the proposals to carry forward the pilot scheme and to come forward with a legislative framework to adopt the proposals. These have been pushed very hard by the Mayor of London and, indeed, by London Councils as an organisation. There has been complete unanimity politically in London, and in this House too, about the merits of this scheme.
Coming as I do from a city where, unfortunately, alcohol consumption is particularly high—leading generally to low-level crime and a low level of violence which is nevertheless a disturbing social phenomenon—I am very glad that we are beginning to see an approach here that we hope will make a difference. As has been pointed out, however, an alcohol strategy is still awaited. This is perhaps only a first instalment in what may need to be a major review of how we deal with these problems.
The noble Baroness, Lady Finlay—who has been so much the moving spirit, if I can be forgiven the use of that term, in these matters—mentioned one particular matter: domestic violence. There has been consultation about this, as the noble Baroness rightly said. At a meeting held in May 2011, all the violence-against-women agencies present expressed,
“high levels of concern about this scheme operating in relation to domestic violence”.
They gave as reasons that tackling alcohol in itself,
“does not tackle domestic violence … implies that domestic violence behaviour is driven by alcohol, which is not the case … domestic violence can occur when men are sober”—
or when women are sober, as it is not always one-sided—and,
“implies that physical assault (which is linked with alcohol) is the main/only form of domestic violence”,
as that is not correct either. There was,
“general consensus that the additional elements which would need to be considered for DV”—
domestic violence—
“cases, including risk assessment and support”,
would make the matter very complex.
That is not in any way to derogate from the proposals being made, but it does emphasise the need to look carefully, in the context of the pilot, at what will be run as part of the experiment, and to look very sensitively at the concerns of the organisations that work most closely with women as the principal victims of domestic violence, to see whether this is necessarily the most appropriate way of dealing with those problems.
I certainly have an open mind about that, and I assume that the Government would as well. I am therefore just uttering a word of caution. It should not necessarily be assumed that domestic violence is an appropriate topic for inclusion in a scheme of this kind. It is a matter that needs to be tested. The American experience might be helpful in that respect, of course, but the culture is not necessarily the same here as it is in South Dakota or other parts of the United States. I think that we have to be a little careful about jumping to conclusions.
With that single reservation—it is only a note of caution—I very much endorse the principle and the Government’s amendments. I would also like to endorse what the noble Lord, Lord Avebury, has said about costs. I assume that the Government would cover the cost of pilots as they take place in localities. In local government parlance, this would be a new burden, and the convention is that such new burdens are funded by government. As it is a pilot, it should not be too expensive to run—and ultimately, we hope, the public purse will benefit significantly from any savings that accrue, not least in the health service, where such savings would be extremely desirable. I mean savings not only in financial resources but in the time and skills of staff.
The Opposition strongly support this principle. With that note of caution, we congratulate the Government and look forward to taking matters further. Perhaps I may also ask whether the Minister or her colleagues would be prepared to meet before the pilots are instituted with representatives of the organisations concerned with violence against women to explore their concerns and to see whether, perhaps together, a joint approach might be worked out to test the scheme in practice or to see how it might be modified to reflect the real concerns they have expressed. We certainly support the Government and these amendments.
Baroness Northover
My Lords, I thank the noble Baroness, Lady Finlay, and my noble friend Lady Browning for their incredibly kind words to me. However, it is they who have been the doughty fighters who have brought us to this position. I should also like to thank my right honourable friend the Secretary of State, Ken Clarke, for his help in taking forward this innovative idea.
The noble Baroness, Lady Finlay, and the noble Lord, Lord Beecham, mentioned domestic violence, and as both noble Lords emphasised, these are complex issues which require multifaceted approaches. We will need to see how, in tackling the abuse of alcohol, there might be a beneficial effect in this area as well. The provision is not targeted at domestic violence, as noble Lords will appreciate, but we will need to see what we can learn from its possible effects. I would be extremely happy on behalf of the Government to meet the organisations to which the noble Lord referred. I know that the noble Baroness, Lady Finlay, expressed an interest as well. I really appreciate that and look forward to taking that further forward. It is extremely important that we discuss what is suggested here with such groups.
We agree with the noble Baroness, Lady Browning, that alcohol treatment is extremely important; as a spokesperson for health, I hope that I can reassure noble Lords that we fully recognise that. I want to reassure the noble Baroness that we believe that the pilots are there so that we can learn from them. We need to learn what works elsewhere and see how it might need to be adapted within our own legal, social and economic situation. However, we are optimistic that these are interesting proposals to take forward.
My noble friend Lord Avebury asked about the funding for the pilots and the noble Lord, Lord Beecham, also flagged that up. Existing resources will be drawn on for some of the work with breathalysers, but the Government are indeed providing funding for the pilots and this will be announced shortly. My noble friend Lord Avebury asked about the areas for conditional caution pilots. I hope he will be pleased to hear that this will be announced in the alcohol strategy next week.
Above all, I thank noble Lords for their support for the government amendments, and especially for the work of the noble Baronesses, Lady Finlay and Lady Browning, and others in bringing us to this point. I look forward to our learning from these pilots.
Baroness Northover
“(2) In section 223(3) of that Act (power to amend specified periods of time), omit paragraph (d).”
“Alcohol abstinence and monitoring requirement
(1) After section 212 of the Criminal Justice Act 2003 insert—
“212A Alcohol abstinence and monitoring requirement
(1) In this Part “alcohol abstinence and monitoring requirement”, in relation to a relevant order, means a requirement—
(a) that, subject to such exceptions (if any) as are specified—(i) the offender must abstain from consuming alcohol throughout a specified period, or(ii) the offender must not consume alcohol so that at any time during a specified period there is more than a specified level of alcohol in the offender’s body, and(b) that the offender must, for the purpose of ascertaining whether the offender is complying with provision under paragraph (a), submit during the specified period to monitoring in accordance with specified arrangements.(2) A period specified under subsection (1)(a) must not exceed 120 days.
(3) If the Secretary of State by order prescribes a minimum period for the purposes of subsection (1)(a), a period specified under that provision must be at least as long as the period prescribed.
(4) The level of alcohol specified under subsection (1)(a)(ii) must be that prescribed by the Secretary of State by order for the purposes of that provision (and a requirement under that provision may not be imposed unless such an order is in force).
(5) An order under subsection (4) may prescribe a level—
(a) by reference to the proportion of alcohol in any one or more of an offender’s breath, blood, urine or sweat, or(b) by some other means.(6) The arrangements for monitoring specified under subsection (1)(b) must be consistent with those prescribed by the Secretary of State by order (and an alcohol abstinence and monitoring requirement may not be imposed unless such an order is in force).
(7) An order under subsection (6) may in particular prescribe—
(a) arrangements for monitoring by electronic means;(b) arrangements for monitoring by other means of testing.(8) A court may not include an alcohol abstinence and monitoring requirement in a relevant order unless the following conditions are met.
(9) The first condition is that—
(a) the consumption of alcohol by the offender is an element of the offence for which the order is to be imposed or an associated offence, or(b) the court is satisfied that the consumption of alcohol by the offender was a factor that contributed to the commission of that offence or an associated offence.(10) The second condition is that the court is satisfied that the offender is not dependent on alcohol.
(11) The third condition is that the court does not include an alcohol treatment requirement in the order.
(12) The fourth condition is that the court has been notified by the Secretary of State that arrangements for monitoring of the kind to be specified are available in the local justice area to be specified.
(13) In this section—
“alcohol” includes anything containing alcohol;
“specified”, in relation to a relevant order, means specified in the order.”
(2) In section 177 of that Act (community orders), in subsection (1), after paragraph (j) insert—
“(ja) an alcohol abstinence and monitoring requirement (as defined by section 212A),”.(3) In subsection (2) of that section (limitations on power to impose community order)—
(a) omit the “and” at the end of paragraph (f), and(b) at the end of paragraph (g) insert “, and“(h) section 212A(8) to (12) (alcohol abstinence and monitoring requirement).”(4) In section 190 of that Act (imposition of requirements by suspended sentence order), in subsection (1), after paragraph (j) insert—
“(ja) an alcohol abstinence and monitoring requirement (as defined by section 212A),”.(5) In subsection (2) of that section (limitations on power to impose requirements by suspended sentence order)—
(a) omit the “and” at the end of paragraph (f), and(b) at the end of paragraph (g) insert “, and(h) section 212A(8) to (12) (alcohol abstinence and monitoring requirement).”(6) In section 215 of that Act (electronic monitoring requirement), after subsection (4) insert—
“(5) An electronic monitoring requirement may not be included in a relevant order for the purposes of securing the electronic monitoring of the offender’s compliance with an alcohol abstinence and monitoring requirement.
(6) Subsection (5) does not prevent the inclusion of an electronic monitoring requirement in a relevant order which includes an alcohol abstinence and monitoring requirement where this is for the purpose of securing the electronic monitoring of an offender’s compliance with a requirement other than the alcohol abstinence and monitoring requirement.”
(7) In section 223(3) of that Act (provisions to which powers to amend periods of time apply), after paragraph (b) insert—
“(ba) section 212A(2) (alcohol abstinence and monitoring requirement)”.(8) In section 305(1) of that Act (interpretation of Part 12), at the appropriate place insert—
““alcohol abstinence and monitoring requirement”, in relation to a community order or suspended sentence order, has the meaning given by section 212A;”.”
“Piloting of alcohol abstinence and monitoring requirements
(1) The Secretary of State may by order provide for the coming into force of section (Alcohol abstinence and monitoring requirement).
(2) The Secretary of State may not make an order under subsection (1) with the effect that section (Alcohol abstinence and monitoring requirement) is in force for the whole of England and Wales (a “general commencement order”) without having previously made a piloting order.
(3) Subsection (2) does not prevent an order under subsection (1) from bringing section (Alcohol abstinence and monitoring requirement) into force for the purpose only of making orders under section 212A or 223 of the Criminal Justice Act 2003 or rules under section 222 of that Act (and such an order is not a general commencement order for the purposes of this section).
(4) A “piloting order” is an order under subsection (1) with the effect that section (Alcohol abstinence and monitoring requirement) is force only—
(a) in relation to the area or areas specified in the order, and(b) for the period specified in the order,but otherwise for all purposes, or for all purposes other than application by the Armed Forces Act 2006.(5) If, having made one or more piloting orders, the Secretary of State decides to make a general commencement order, the Secretary of State may by order—
(a) amend section (Alcohol abstinence and monitoring requirement) so as to enable the general commencement order to bring it into force with those amendments;(b) amend or repeal any provision of this Act in consequence of provision made under paragraph (a).(6) Amendments under subsection (5)(a) may confer power on the Secretary of State to make an order or rules.
(7) If, having made one or more piloting orders, the Secretary of State decides not to make a general commencement order, the Secretary of State may by order—
(a) repeal section (Alcohol abstinence and monitoring requirement);(b) amend the Criminal Justice Act 2003 so as to reverse the effect of that section on that Act;(c) make other consequential amendments or repeals.(8) An order under this section may make transitional, transitory or saving provision (including, in the case of a piloting order, provision relating to section (Alcohol abstinence and monitoring requirement) ceasing to be in force at the end of the period specified in the order).
(9) An order under this section is to be made by statutory instrument.
(10) A statutory instrument containing—
(a) a general commencement order, or (b) an order under subsection (5) or (7),may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Woolf
“To add restorative justice to the statutory purposes of sentencing
In section 142(1) of the Criminal Justice Act 2003 (purposes of sentencing) after paragraph (c) insert—“(ca) the achievement of restorative justice,”.”
Lord Woolf
My Lords, Amendments 152BZZA, 152BZZB and 152BZZC all deal with restorative justice. Restorative justice is one of the areas of good news in the criminal justice system. I should have said—I do so with apologies now—that I have the considerable advantage that the noble Lord, Lord Dholakia, supports what I propose in these amendments. Indeed, the right reverend Prelate the Bishop of Liverpool would also have supported the amendment had he been able to be present today.
The fact is that the benefits of restorative justice are now widely accepted, but its role in the criminal justice system is sadly lacking in statutory recognition. It is essential that it now receives this recognition, and the Bill would be an appropriate vehicle for that recognition to be provided.
In Committee, an amendment before the House sought to give statutory recognition, but the statutory recognition then proposed is very different from what is now being sought. I have to concede that the amendment that was put before the House then was not, even with the skills of the noble Lord, Lord McNally, capable of being tweaked to achieve the purpose needed. Following in the footsteps of the Government in relation to the amendment that we just dealt with, for which the Government should be congratulated on taking such a positive role, the present amendments were drafted at a very late stage at the end of last week. Those amendments followed a similar pattern, although there is a significant difference between restorative justice and the alcohol and monitoring requirements.
The present amendments are to the Criminal Justice Act 2003, which provides the framework for sentencing that is of great importance to courts up and down the land when they come to sentence. In relation to three separate aspects of the statutory provisions they ask no more than that one of the options—one of the menus—that those statutory provisions should include is restorative justice. That is needed, and it is surprisingly lacking.
The amendments would require the Government to take no action and would require them to spend no money, but they would take into account the fact that it has been established as a result of experience that restorative justice has an important part to play in the administration of justice, not only in ensuring that offenders receive the right sentences from the court, but in protecting victims. I would like to stress that aspect of the matter, because the Ministry of Justice, in its admirable consultative paper, Getting it Right for Victims and Witnesses, sets out what a significant role restorative justice can play. Paragraph 114 on page 39 of that document states:
“In partnership with the Home Office we will develop a framework for restorative justice. This will provide guidance to local practitioners and help support them to develop and deliver effective, best practice restorative justice approaches suited to local need”.
That is clearly something that is required. It follows on from the statements in the same publication that in 85 per cent of cases where there has been restorative justice,
“victims who participated in the schemes were satisfied with the experience”.
The document also states that it is estimated that there was a,
“14% reduction in the frequency of re-offending”,
as a consequence of the use of restorative justice.
If the full impact of the amendments now proposed had been delivered in a rather more timely way, there could have been consultation between myself and Ministers so that it could have been explained from the point of view of those who have the task of sentencing in courts just why these amendments are needed and appropriate at this stage. Although the matter was only put down in its current form a late stage, for which I owe the House and the Government an apology, we now have a proposal that fits in with what the Bill is trying to do. I personally can claim very little of the credit for these amendments. They are the product of excellent work by the Prison Reform Trust, of which I declare my position as chairman, the Restorative Justice Council and many others—in particular, Paul Cavadino, whose knowledge in this area is quite outstanding. If the Government cannot accept these amendments today, I urge them to give me and those who support me an opportunity to explain in detail why these amendments are very constructive and have no conceivable downside as far as I can ascertain. I hope the Government will listen and respond to what I have just said.
Lord Dholakia
My Lords, it is clear from our debates in Committee that there is agreement in all parts of the House on the merits of restorative justice and the case for ensuring that it is seen as a central and fundamental part of our criminal justice system. I will make five key points. First, it has a salutary impact on many offenders by bringing home to them the impact of their offence on victims. All too often offenders minimise or simply do not think about the effect of their actions on other people. In a restorative justice process the offender has no alternative but to face up to the impact of his or her offences on those at the receiving end. Secondly, restorative justice gives victims much more satisfaction than other ways of dealing with offenders. A lot of research has been carried out on this point. It is clear that victims who have been through restorative justice express satisfaction with that process. It enables victims to tell their story, express their hurt and receive recognition in a way that no other procedure does. It helps to give victims closure, reduce trauma and reduce their fear about the future. Many victims also feel very positive about being involved in a process which can contribute more effectively to the rehabilitation of the offenders. Thirdly, restorative justice reduces reoffending. I have the Home Office research. It found that it did so by around 14 per cent. The process thereby helps to reduce the number of people in the future who would otherwise have suffered loss, distress, injury or damage as a result of crime. Fourthly, restorative justice saves money. The Restorative Justice Consortium has estimated a cost saving of £185 million over two years based on 70,000 cases and a return of £9 for every £1 spent. Finally, a wider use of restorative justice will help to increase public confidence in sentencing. An ICM poll that was carried out last year found that 88 per cent of people wanted victims to have the opportunity to inform offenders of the harm and distress they have caused.
There were a number of speeches in Committee on this matter so I will not repeat all the arguments in favour but I want to put two or three suggestions to the Minister. The noble and learned Lord, Lord Woolf, has tabled these new clauses and I think they require some discussion, even between now and Third Reading. One way is to include restorative justice in the statutory purposes of sentencing. Another is to enable courts to include restorative justice requirements in community orders. Another option that is open is to spell out that courts can use activities to require offenders to take part in restorative justice processes. Any or all of these proposals and approaches would help to keep restorative justice in the minds of sentencers and to achieve the Government’s aim of ensuring that it becomes a central part of the criminal justice system. This is not the time to look at a final outcome but I hope very much that this will open up a discussion with the Government with a view to seeing if they will move on any of these fronts. I support the noble and learned Lord, Lord Woolf, in what he has said.
Lord Ramsbotham
My Lords, I rise briefly to support the noble and learned Lord, Lord Woolf. There was an extremely useful conference last week by the Thames Valley Partnership which has been pioneering restorative justice for many years. It was interesting to hear exactly how far the National Offender Management Service has gone in preparing for restorative justice to be administered in every prison and every probation area around the country. Indeed, staff are being trained to do it. In addition, the police have trained the all-important committee supervisors and people who run the committees which make it work. Therefore, it would seem logical if this effort is to be overseen and able to come to fruition that it should be backed up by the statutory recognition in the Bill if at all possible.
Lord Beecham
My Lords, I strongly support the amendment moved by the noble and learned Lord, Lord Woolf. We are entirely in agreement that restorative justice represents a significant way forward. It is calculated, as the noble Lord, Lord Dholakia, said, to save public funds, reduce reoffending rates and prove acceptable to the wider community, which is not as hard-line in these matters of penal policy as sometimes people imagine. Restorative justice has been shown to be welcomed by 80 per cent of the victims who participate in it. That in itself is a testimony to its effectiveness. I hope, therefore, that the Minister will feel able to accept the amendment but, if she is not, I hope that she will undertake to meet the noble and learned Lord and other colleagues before Third Reading to allow a further and final opportunity to discuss the way forward to improving this part of the Bill, recognising that it will contribute to the intentions of the Government.
Baroness Northover
My Lords, these amendments from the noble and learned Lord, Lord Woolf, and my noble friend Lord Dholakia return to the question of restorative justice. The noble Lords have been outstanding exponents of the importance of restorative justice and we appreciate the contribution that they have made in the House, nationally and internationally in this matter. The Government support the principle of restorative justice as part of an effective response to crime. It offers a crucial opportunity, not only to assist in the rehabilitation of offenders by making them face the consequences of their actions and seek to make amends for the damaged inflicted on others, but to give victims a greater stake in the resolution of offences and in the criminal justice system as a whole. Indeed, victim satisfaction rates have been extremely positive. Additional work in this area will enable us to realise the benefits of restorative justice further. We already have encouraging evidence around its impact on reoffending rates and anecdotal evidence that it encourages offenders to seek further necessary interventions, such as drug and alcohol treatment.
As I mentioned in Committee, we are committed to delivering greater use of restorative practices across the criminal justice system and we are putting a great deal of time and effort into building up the capacity of youth offending teams, probation trusts and prisons to provide restorative justice services, investing over £1 million in order to do so. We just heard reference from the noble Lord, Lord Ramsbotham, to the Thames Valley restorative justice partnership. It is developing training materials and guidance for using restorative justice in the adult system as part of our response to more serious offences. Its experience is invaluable.
These amendments take a three-pronged approach to adding restorative justice to the current legislation. The first would make restorative justice a statutory purpose of sentencing alongside the existing purposes of punishment, reduction of crime, rehabilitation, protection of the public and making reparation to offenders, as set out in the Criminal Justice Act 2003. The second would create a new restorative justice requirement for a community order or suspended sentence order, while the third would add the words “restorative justice” to the existing activity requirement.
Lord Woolf
I thank the noble Baroness for that response and express my gratitude to others who have expressed support for the amendments. I firmly believe that they are an indication of matters that should be undertaken to take restorative justice forward as the noble Baroness just described. After the generous offer that was made for meeting with my noble friend Lord McNally, I am happy to withdraw the amendment.
Lord McNally
Lord McNally
Lord McNally
(a) an offence is relevant if, immediately before the commencement day, it is a common law offence or it is contained in an Act or an instrument made under an Act (whether or not the offence is in force at that time), and(b) a”
“( ) The Secretary of State may by regulations make provision—
(a) for an offence in relation to which subsection (1) is disapplied to be punishable on summary conviction by a fine or maximum fine of an amount specified or described in the regulations, and(b) ”
(a) ”
(b) a relevant power which, immediately before the commencement day, can be exercised to create an offence punishable on summary conviction by such a fine or maximum fine.”
(a) ”
(b) for the power to be exercisable to create an offence punishable on summary conviction by such a fine or maximum fine.”
“( ) Powers under this section—
(a) may be exercised from time to time, and(b) are without prejudice to other powers to modify fines for relevant offences or fines that may be specified or described when exercising a relevant power.”
“and references to an offence, power or provision contained in an Act or instrument include an offence, power or provision applied by, or extending to England and Wales by virtue of, an Act or instrument.”
Lord McNally
“( ) Powers under this section—
(a) may be exercised from time to time, and(b) are without prejudice to other powers to modify fines for relevant offences or fines that may be specified or described when exercising a relevant power.”
Lord McNally
“Withdrawal of warrants of control issued by fines officer
(1) Schedule 5 to the Courts Act 2003 (collection of fines and other sums imposed on conviction) is amended as follows.
(2) In paragraph 7(1) (Part 3 of Schedule does not apply on an appeal against a further steps notice) for “or 37(9)” substitute “, 37(9) or 37A(4)”.
(3) In paragraph 37(7) (further steps notice must specify steps that fines officer intends to take) for “intends” substitute “wishes to be able”.
(4) After paragraph 37 insert—
“Issue by fines officer of replacement notice37A (1) This paragraph applies if—
(a) the fines officer has delivered to P a notice (“the current notice”) that is—(i) a further steps notice that has not been replaced by a notice under this paragraph, or(ii) a notice under this paragraph that has not been replaced by a further notice under this paragraph,(b) P remains liable to pay any part of the sum due, and(c) the fines officer wishes to be able to take one or more steps listed in paragraph 38 but not specified in the current notice.(2) The fines officer may deliver to P a notice replacing the current notice.
(3) A notice under this paragraph (a “replacement notice”) must—
(a) state that the fines officer intends to take one or more of the steps listed in paragraph 38,(b) specify the steps that the fines officer wishes to be able to take, and(c) be in writing and dated.(4) P may, within 10 working days from the date of a replacement notice, appeal to the magistrates’ court against it.
(5) If a step is being taken in reliance on a notice at the time when the notice is replaced by a replacement notice, the taking of the step may continue despite the replacement.”
(5) In paragraph 38(1) (list of steps referred to)—
(a) after “37(6)(b)” insert “, 37A(3)(a)”, and (b) in paragraph (a) (steps include issuing warrants that authorise taking control, and sale, of goods) for “levying” substitute “recovering”.(6) In paragraph 39 (powers of court on referrals and appeals)—
(a) in sub-paragraph (1)(c)—(i) after “37(9)” insert “or 37A(4)”, and(ii) after “further steps notice” insert “or replacement notice”, and(b) in sub-paragraph (4) after “further steps notice” insert “or replacement notice”.(7) In paragraph 40 (implementation of notice)—
(a) after “further steps notice”, in both places, insert “or replacement notice”, and(b) after “may be taken” insert “and retaken”.(8) After paragraph 40 insert—
“Withdrawal of warrant of control by fines officer40A (1) This paragraph applies if, in taking a step specified in a further steps notice or replacement notice, the fines officer has issued a warrant of control for the purpose of recovering the sum due.
(2) The fines officer may withdraw the warrant if—
(a) P remains liable to pay any part of the sum due, and(b) the fines officer is satisfied that the warrant was issued by mistake, including in particular a mistake made in consequence of the non-disclosure or misrepresentation of a material fact.Discharge of warrant of control by magistrates’ court40B (1) This paragraph applies if—
(a) in taking a step specified in a further steps notice or replacement notice, the fines officer has issued a warrant of control for the purpose of recovering the sum due, and(b) the fines officer subsequently refers P’s case to the magistrates’ court under paragraph 42.(2) The magistrates’ court may discharge the warrant if—
(a) P remains liable to pay any part of the sum due, and(b) the power conferred by section 142(1) of the Magistrates’ Courts Act 1980 (power of magistrates’ court to re-open cases to rectify mistakes etc) would have been exercisable by the court if the court had issued the warrant.Duty of fines officer if warrant of control withdrawn or discharged40C (1) This paragraph applies if condition A or B is met.
(2) Condition A is that the fines officer has withdrawn a warrant of control under paragraph 40A.
(3) Condition B is that—
(a) in taking a step specified in a further steps notice or replacement notice, the fines officer has issued a warrant of control for the purpose of recovering the sum due,(b) the fines officer has referred P’s case to the magistrates’ court under paragraph 42,(c) the magistrates’ court has discharged the warrant of control under paragraph 40B(2), and(d) the magistrates’ court has not discharged the collection order or exercised any of its powers under paragraph 42(2).(4) If P remains liable to pay any part of the sum due, the fines officer must—
(a) take (or retake) one or more of the steps specified in the further steps notice or replacement notice that was the last notice to be delivered to P under paragraph 37 or 37A before the warrant of control was issued, or (b) deliver to P a replacement notice and take one or more of the steps specified in that notice, or(c) refer P’s case to, or back to, the magistrates’ court under paragraph 42.””
Lord Ramsbotham
“CHAPTER 1AYoung adult offenders strategyYoung Adult Offenders Strategy
(1) The Secretary of State shall in each year—
(a) publish a strategy designed to promote the just and appropriate treatment of young adult offenders in the criminal justice process, and(b) appoint a person with responsibility for leading and co-ordinating the implementation of that strategy. (2) Publication under subsection (1)(a) shall be effected in such manner as the Secretary of State considers appropriate for the purpose of bringing the strategy to the attention of persons engaged in the administration of criminal justice and of the public.
(3) For the purposes of this section “young adult offender” means a person who is aged at least 18 but under 21 when convicted.”
Lord Ramsbotham
My Lords, in an earlier debate today the noble Baroness, Lady Linklater, said that the two most vulnerable groups in prison are children and women. There is another group that is in many ways the most neglected as well as the most vulnerable, and that is young adults, who are in the halfway house between being children and adults. There is nobody in charge of them—they are lost souls. In the prison system, those in young offender establishments, or the split sites, are poor relations. Most facilities are given to children aged between 15 and 18, under the requirements of the contract let by the Youth Justice Board, and young offenders get what is left, which is frequently not enough to occupy them entirely. Whereas we have a Youth Justice Board concentrating on the needs of children and have had many reports, including that of the noble Baroness, Lady Corston, which we discussed earlier, dealing with women, there is nothing dealing with this group other than the Criminal Justice Alliance and the Transition to Adulthood Alliance, which consists of 13 organisations from the criminal justice, health and youth organisations that have been calling for a long time for something to be done about this.
In Committee, my noble friend Lord Adebowale and I mentioned the problems of this group, but largely in connection with the community. I want to mention that community trials have been going on but also to focus on imprisonment, because in our prison system at the moment young men of this age group are disproportionately represented. At the end of September 2011, there were 8,317 18 to 20 year-olds in prison in England and Wales. The sentenced numbers in this age group have gone up by 30 per cent since 1997. If we extend the age group to 18 to 24, which is frequently done, we find that although that group represents only one in 10 of the population, it represents one in three of those sentenced to imprisonment and of those in the hands of the probation service. They account for one-third of the total social and economic costs of crime to the nation. In other words, this group represents a particular problem within the criminal justice system, which to my mind does not appear to be properly settled, and indeed has not been for some time.
There are very promising signs. In Committee, we mentioned the success of the intensive alternative to custody schemes, which are being piloted and pioneered by the Greater Manchester and West Yorkshire probation trusts. They were tailored to the specific needs of this age group. The probation officers commenting on the schemes said, interestingly, that this was the first time they could remember having any hope of achieving anything on reoffending with this age group because at last there were programmes that were tailored to their needs. That was in stark contrast to comments made by the Chief Inspector of Prisons on young adults in one prison; he said that the young men were “sleeping through their sentences”. Commenting on young offenders in this group as a whole, he said that there was a lack of engagement in work, education and training opportunities across the whole YOI estate.
That cannot be sensible—certainly in terms of tomorrow—because if this group, who are so volatile in criminal activities, are being left to do nothing while they are in the hands of the criminal justice system, it must be a contributor to crime rather than a preventer of it. Commenting on the amendment that I put forward in Committee, the Minister warned that the Government did not have the resources to deliver intensive interventions with or supervision of this age group. I acknowledge that it is expensive. It is not a cheap option to do something with them, but on the other hand I put it to the Government that it is more expensive to do nothing and that we cannot afford that. What should we therefore best do?
Since Committee, I have had extremely productive meetings with the Minister, the Prisons Minister and Simon Boddis, who is the official in NOMS responsible for devising and introducing offender programmes—and who had the good fortune to be my principal psychologist when I was Chief Inspector of Prisons. I must admit that I have been encouraged by much of what I heard about what is going on, in areas such as the introduction of work and drug and alcohol treatment programmes. I have to admit, however, that I am concerned by the apparent overfocusing on payment by results, because I am uncertain whether payment by results really works when measuring reconviction. Who is responsible or not responsible for preventing reconviction? You really do not know which factor, which programme or which event it is, therefore how can you know exactly who qualifies for payment?
Yet in order even to have a payment-by-results regime, you have to have a structure in which it is conducted. What I do not see in the whole NOMS structure, as I have said on many other aspects of the system, is anyone in charge or being responsible for overseeing the programmes. Here you have a perfect example of the intensive alternatives to custody scheme in one part of the system. Why should that not be adopted in the other, and if it is all happening in NOMS, why should somebody not be driving it? If that happened, and if somebody was really focusing on the whole problem, the identification of what is needed and what can be done would be much sharper, and the expenses would become much clearer. Sensible planning would therefore be easier.
Lord Judd
My Lords, in supporting this amendment, briefly, I very much agree with what the noble Lord has just said: that it is a halfway step. Yet better a halfway step than no step at all. I shall make two observations. I had the privilege for nine years of being the president of YMCA in England. I was particularly impressed by the work that it was doing with young people in prisons and detention centres. During that period, I became very concerned about exactly what preoccupies the noble Lord. It is almost as though we were deliberately building the foundations for a wasted and inadequate life, with future social costs and disruption, reoffending and the rest.
We know that society is becoming increasingly competitive and that it has huge pressures for the young. I say not simply on moral grounds, which I feel strongly about, but on the economic grounds that make absolute sense for the future of the country’s economy. To avoid the future expense of things going wrong repeatedly, and if we have any sense at all about rehabilitation and any commitment to it, these years are crucial. It is the very time that people are on the threshold of life, and they need to be equipped to face it. I make a personal plea to your Lordships: just think of our own families and of our own children and grandchildren in this age group. Think of the turmoil that they are faced with and the support that they need to sort out their lives for the future. Why are we ready to abandon these inadequate, neglected people to a system in which they are not getting any kind of support of that sort? I thank the noble Lord for having introduced the amendment, and I am glad to support it.
Baroness Howe of Idlicote
My Lords, what the noble Lord, Lord Ramsbotham, has outlined as a beginning is a very important thought for the Minister. I hope that he will be able to adopt it. We all know what goes on in prisons with young people. We all know, and now all pretty well agree, that, early intervention, even in a prison situation, but preferably even earlier so that that does not happen, will in the long run save money. The flexible way in which what is proposed has been outlined allows the Minister to organise it in such a way that it can take account of the actual age of the individual. That will be a very good step in the right direction, whether or not it can be written into law. We have plenty of things to try to add to the law in addition to the ones on the agenda. I hope that it will be taken very seriously and that practical steps will be taken.
Baroness Linklater of Butterstone
My Lords, I rise very briefly to endorse every word that the noble Lord, Lord Ramsbotham, has said. How much it resonated with me. The older end of YOIs are famously inadequate and have been so for some time, no doubt partly because they are also a famously difficult group. The noble Lord, Lord Ramsbotham, highlighted the fact that these are very often young people in transition. Transitions are difficult and absolutely awful to go through. I have always said that I am never off my knees in gratitude that I will never have to be a teenager again. There is merit in the idea that they could be, as it were, somehow incorporated—that, if the arms of the YJB became wide enough, they could encompass them in some way. I am not entirely sure how much the YJB is in favour of such a proposition, but maybe there are ways of choreographing that. However, I have simply risen to say that the noble Lord, Lord Ramsbotham, has put his finger on a very real and challenging problem.
The other day, I was visiting Merseyside Probation Trust, which is doing an incredible range of first-class work. Its IACs—intensive alternatives to custody—are particularly impressive. I spent some time with one girl who had been through it. She had form like you had never seen and she came singing the praises of the person from the probation service who had been working with her through this process. It was truly worth while in that case. Maybe it is very expensive—it is certainly very time intensive—but it is something that I, along with what the noble Lord, Lord Ramsbotham, want to endorse.
Lord Ponsonby of Shulbrede
My Lords, as I sit as a magistrate in both the youth and adult courts, I make one simple point. In the youth courts, we routinely say to youths, “You must behave. If you do not behave, you may come back to the adult court and of course that is a much more serious matter.” What we do not tell them is that the reason that it is a much more serious matter is because there is much less support for them in the adult court system. Everything that the noble Lord, Lord Ramsbotham, said is absolutely right. We see a huge, disproportionate, number of young men from 18 to 24 years old. There are attendance centres, which do good work. I have been to a number. However, it is very minimal compared with the support that this group needs.
Lord Beecham
My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.
I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.
Lord McNally
My Lords, we keep coming round to these amendments from the noble Lord, Lord Ramsbotham. As he said, we have had debates in this House and bilateral meetings about them. There is a certain disagreement. The noble Lord, Lord Ramsbotham, seems to think—and I am sure that this will provoke him to get to his feet to say that I have got it wrong—that we have to have a strategy and a command structure and, after that, all will be well. I am old fashioned enough to believe that the buck stops with the Minister. The constant desire to have strategies is not a real substitute for doing things.
Having said that, I said earlier today that you do not have to be in this job long before you realise that we have too many women in our prisons. Neither do you have to be in this job very long to see that the 18 to 24 year-old age group among males is a key area for criminal behaviour. Therefore, we have to think very hard about how we break this cycle of criminality. The noble Baroness, Lady Linklater, acknowledges that this is a difficult group. I cannot quite agree with her about regretting that she is no longer a teenager. I would like to be a teenager again, but knowing what I know now. It is a pity that life does not give you that particular deal.
Lord Beecham
Does the noble Lord want to revert to membership of the young socialists a little bit?
Lord McNally
I said that if I knew then—let me get back to the speech. The noble Lord, Lord Ramsbotham and the noble Baroness, Lady Linklater, acknowledged that the group we are discussing is a difficult one but that many of the ideas for dealing with it are extremely expensive. We are trying to deal with it but the Government’s view is that it is not appropriate to prescribe in detail from the centre processes which purport to improve outcomes. Such a way of working would lead to inflexibility and take up resources which are better deployed elsewhere. We are looking wherever possible to empower local decision-making and delivery by prison and probation trusts so that they use resources in a way that responds to local priorities. That also fits with our policy for the management of young adult offenders as individuals based on an assessment of risks and needs rather than their age.
Lord Ramsbotham
My Lords, I expected that response. However, I remind the Minister that I have worked in Whitehall for many years. I do not disagree with him about Ministers being responsible; of course they are, but the question is how do they exercise that responsibility? They cannot do it on a 24 hour, seven days a week basis because they have many other things to do. Therefore, they need a structure to help them do it. The noble Lord referred to a command structure. You can call it what you like but it is a matter of people being responsible and accountable to a Minister for making certain that what the Minister wants to happen does happen. That happens everywhere—in schools, hospitals, businesses and the Armed Forces, but it does not seem to happen in the Prison Service.
I am very concerned about disseminating all responsibility down to the local level. I have said many times in this House that two things are involved in this. One is the question of what should be done, which is the central responsibility, but how it is done is the local responsibility. If you get that the wrong way round and nothing but “how?” comes out from the centre at the top and all the “what” is left down below in the local areas, you get confusion. People in the local areas need to know what they have to do. They should be allowed to disburse their resources locally as there will be different needs in different areas. That again seems to me common sense because unless you have a “what?” coming down, nobody knows where they are going. I have spoken to the chairman of the Youth Justice Board, and I understand that that body would be more than happy to tackle this measure. However, the chairman made the point that she did not want the youth offending teams involved in working with this age group. I accept that entirely. However, the success of the intensive schemes pioneered by the probation service shows that it is taking a keen interest in this group, and I see no reason to interrupt that. Therefore, it seems to me that the framework is there.
The Minister mentioned that a lot of things are going on but was not very specific. In the same spirit in which we have met to talk about many issues after Committee, can we meet to discuss this matter as it is far too important just to be left in the air at half past eight at night without, frankly, it being completely clear? I understand what he says about payment by results.
Lord McNally
I am very willing to meet. The noble Lord knows how much I value his experience, expertise and commitment in this area. I am happy to meet him to discuss this matter as often as he likes. However, later this week I will be sitting down with ministerial colleagues to discuss a detailed report on the various areas of MoJ business with the civil servants with direct line responsibility for them. We will have gone through policy areas and will be looking at various policy outcomes. The idea that somehow the National Offender Management Service is drifting somewhere outside ministerial control or accountability or that it is not being set various tasks and responsibilities is just not true.
On the other side, as has been acknowledged, we are dealing with very difficult and straitened times. The resources available to target this area are extremely limited. We shall see whether we can involve payment by results as one way of getting good results and resources into this area. We do not doubt the problem. I am very willing to continue to have discussions with the noble Lord, but I do not want to give him any false hope that we can go down this way in this Bill.
Lord Ramsbotham
I thank the Minister for that reply. In no way am I seeking to interfere; I am merely seeking to ensure that our commitment to this very important problem is properly recognised because we wish to share everything that he has shared with us that has come up from below to ensure that due account is given when we get an opportunity to do so.
I am not going to talk about payment by results because, as the Minister says, this is early days and the Government have set their sights on it; they have pilot schemes in place and we shall know more. It is premature to take more than that, other than to reflect concerns that are being reflected to me by people who have to operate it on the ground, particularly the small voluntary organisations which operate in this area and which are finding it enormously difficult to survive. In view of the fact that there is so much to play for in this area, it would be sensible to continue the dialogue. Therefore, I wish to withdraw the amendment.
Lord Ponsonby of Shulbrede
My Lords, this group of amendments would remove the Government’s proposed amendments to the Bail Act 1976. The Government’s amendments remove certain exceptions to the presumption that bail should be granted to a defendant. Currently, bail can be withheld if judges or magistrates believe that the defendant will commit offences on bail, not turn up for subsequent court hearings, or interfere with witnesses. The Government seek to replace that with a no real prospect of custody test to make it far more likely that low-level offenders will get bail. Of course, currently the vast majority of low-level offenders already get bail.
The Government’s proposed changes are poorly thought through and could, in some cases, have the reverse effect to the one they intend. I understand that they are motivated by looking at the statistics of those who have received community sentences after they had been remanded in custody and then convicted at trial. They believe, in my view wrongly, that they will reduce costs by reducing the number of people who were originally remanded in custody.
I have come up with three practical examples which I believe will undermine the object of the Government’s proposed changes and the premise on which they are based. My first example is that of a sentencing bench. A sentencing bench sits and decides to give a community sentence where a defendant has previously been remanded in custody before trial. The sentencing court will know that, if it gives a prison sentence for a low-level but imprisonable offence, it is very likely that the defendant will walk free on the day of the trial or very shortly afterwards.
However, if the sentencing bench gives a community sentence, there is an opportunity for ongoing intervention by the probation service either through a tailored programme for drug rehabilitation, unpaid work or any of a number of courses that they can make. Of course, it is true that a court will be much better informed when it is giving a sentence than when it is making a decision about bail. I believe that it is misleading—and the Government are misleading themselves when they do so—to look at the bald figures of those who have been remanded in custody and those given community sentences.
My second example is of interfering with witnesses. I acknowledge that in another place an exception has been made in the context of domestic violence. I also accept the point made by the noble Lord in Committee when he said that interfering with witnesses is an offence. However, what about this following scenario: a neighbourhood dispute in which a bailed defendant is accused of interfering with witnesses and pleads not guilty? Of course, there will need to be a trial on the matter, but in the mean time the question of bail arises again. Surely the Government cannot be saying that the court cannot take into account a previous conviction of interfering with witnesses. That absolutely undermines everything that they are saying about putting victims at the heart of the criminal justice system. I find it impossible to imagine that they really intend that very real scenario.
Lord Bach
My Lords, I will comment briefly. My noble friend Lord Ponsonby made a good point. The question is whether the Bail Act 1976, which as he said has worked pretty well in a practical way at various levels—although no one would claim that it is perfect—needs to be changed by what appears at first blush to be a rather superficial alteration.
I am concerned about the matters raised by my noble friend, to which I hope the Minister will respond tonight, and about the prospect of a custody test and the expectation that a defendant will be given if he is granted bail on the basis that he will not receive a custodial sentence, because it may become absolutely apparent at the time of sentence, for whatever reason—and anyone who has been in a court knows that the facts sometimes do not emerge until very late on—that although the defendant’s expectation is that he will not get a custodial sentence, the court would not be doing its duty unless it gave him one.
The expectation that someone will have once they have been given bail is that they will not—to use common parlance—go down. In my view that is the wrong way around. Magistrates’ courts or Crown Courts should have the discretion that they enjoyed under the Bail Act 1976 to do what they consider to be right in the circumstances, subject to the terms of the Act. Therefore, my view is that the case for change has not been made, and that what is proposed is very superficial.
Lord McNally
I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.
The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.
The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.
We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.
The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.
I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.
Lord Ponsonby of Shulbrede
I thank the Minister for that response. I make the point that the Magistrates’ Association and every magistrate I have ever sat with do not want to put people in custody, and the whole purpose of my speech was to point out inconsistencies and a lack of clarity in these proposed changes. Nevertheless, I thank the Minister for offering to respond to my specific questions, and I beg leave to withdraw my amendment.
Lord McNally
Lord McNally
(a) ”
(b) in relation to an offence of which a child has been accused or convicted outside England and Wales, an offence equivalent to an offence that, in England and Wales, is punishable in the case of an adult with imprisonment;”
“(9) References in this Chapter to a child being subject to a custodial remand are to the child being—
(a) remanded to local authority accommodation or youth detention accommodation, or (b) subject to a form of custodial detention in a country or territory outside England and Wales while awaiting trial or sentence in that country or territory or during a trial in that country or territory.(10) The reference in subsection (9) to a child being remanded to local authority accommodation or youth detention accommodation includes—
(a) a child being remanded to local authority accommodation under section 23 of the Children and Young Persons Act 1969, and(b) a child being remanded to prison under that section as modified by section 98 of the Crime and Disorder Act 1998 or under section 27 of the Criminal Justice Act 1948.”
Lord McNally
Lord McNally
Lord McNally
(a) “
(b) a child being remanded to prison under that section as modified by section 98 of the Crime and Disorder Act 1998 or under section 27 of the Criminal Justice Act 1948.”
Lord McNally
Lord McNally
Lord McNally
“(11) The references in subsection (3)(b) to an imprisonable offence include a reference to an offence—
(a) of which the child or young person has been convicted outside England and Wales, and(b) which is equivalent to an offence that is punishable with imprisonment in England and Wales.(12) The reference in subsection (3)(b) to a child or young person being subject to a custodial remand is to the child or young person being—
(a) remanded to local authority accommodation or youth detention accommodation under section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) remanded to local authority accommodation under section 23 of the Children and Young Persons Act 1969 or to prison under that section as modified by section 98 of the Crime and Disorder Act 1998 or under section 27 of the Criminal Justice Act 1948, or(c) subject to a form of custodial detention in a country or territory outside England and Wales while awaiting trial or sentence in that country or territory or during a trial in that country or territory.”
Lord McNally
Lord McNally
“( ) Section 246 (crediting of time in service custody: terms of imprisonment and detention) is amended as follows.
( ) For subsections (2) to (5) substitute—”
“( ) In subsection (6)—
(a) omit “and” at the end of paragraph (a), and(b) after paragraph (b) insert “, and“(c) a determinate sentence of detention in a young offender institution,”.”
Lord McNally
“( ) Part 1 of Schedule 13 and section 104(13) so far as it relates to that Part (but this is subject to sub-paragraph (3)).”
“( ) In sub-paragraph (3) “the new provisions” means—
(a) where the direction was given under section 240(3) of the 2003 Act, section 240ZA of that Act;(b) where the direction was given under section 246(2) of the Armed Forces Act 2006, section 246 of that Act as amended by Part 1 of Schedule 13.”
Lord Lloyd of Berwick
“Duty to release certain prisoners serving a whole life sentence
In Chapter 2 of Part 1 of the Crime (Sentences) Act 1997 after section 28 insert—“28A Duty to release certain prisoners serving a whole life sentence
(1) In the case of a life prisoner who has been made subject to a whole life order, and has served 30 years of his sentence, it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice and the trial judge if available, to refer the case to the Parole Board.
(2) If the Parole Board is satisfied—
(a) that it is no longer necessary for the protection of the public that the prisoner should be confined, and(b) that in all the circumstances the release of the prisoner on licence would be in the interests of justice,the Parole Board may direct his release under this section.(3) Where the Parole Board has directed a prisoner’s release under this section, it shall be the duty of the Secretary of State to release him on licence.””
Lord Lloyd of Berwick
My Lords, I start by seeking to degroup Amendment 153 from the other two amendments in the group.
Amendment 153 concerns the 41 prisoners who are currently serving whole life sentences in England and Wales. Before the Criminal Justice Act 2003, these prisoners would have had their sentences reviewed by the Home Secretary after 25 years. If they had made exceptional progress and there was no other reason for keeping them in prison, the Home Secretary would consider them for release on licence. There was never any question of automatic release. Each case was considered on its own merits. Some were released on licence; some were not.
What I have just described was the settled practice of successive Home Secretaries for many years. It was a humane practice since it gave whole life prisoners the same hope of a review as other life prisoners. When the 2003 Act was going through Parliament this settled practice was somehow overlooked. There is no evidence that it was overlooked on purpose. It was not a deliberate omission. The purpose of this amendment is to restore the position to what it was before 2003, except that the review would be carried out not by the Home Secretary but by the Parole Board. The reason for that is that the Home Secretary no longer has any function in relation to sentencing except the power to release a prisoner on compassionate grounds, a power which has never been exercised.
Lord Morris of Aberavon
My Lords, I support the noble and learned Lord, Lord Lloyd. All he wants to do in the amendment, as I understand it, is to go back to the pre-2003 position. Because of judgments of the European Court, the Home Secretary is not able to take such a decision, but successive Home Secretaries have not been willing to give this kind of decision to the Parole Board, as envisaged in the noble and learned Lord’s amendment.
I believe that the present position is untenable. The noble and learned Lord referred to the case of Vinter, in which it was decided—by a majority of four to three, a tiny majority—that this was not an inhumane process. I do not always have the greatest confidence in this court, which is not a very happy court to be in. When I appeared before it as an attorney, you had half an hour. Your opponent had half an hour in which to reply. You might have had a few minutes to say a few more words but the court would file out having heard the argument and not have any exchange whatever with counsel or carry the matter any further. A few months later you would have a decision.
As I understand it, this matter will undoubtedly go to an appeal. It will be considered by a court of five and the Government may lose. In all probability, it may then go, if leave is given, to the Grand Chamber and the Government may lose. With these tiny votes and these tiny majorities, one cannot be sure what will happen in this court. The Government will be in a very difficult position and will undoubtedly have to take action.
Without any further words, I believe that the present position is not compassionate, is not human and is not in the interests of justice, whatever that may mean. Surely to leave an individual in this kind of limbo, which he was not left in previous to 2003, is not a practice that would commend itself to the civilised world. I therefore support the amendment.
Lord Pannick
My Lords, I have added my name to this amendment so persuasively moved by the noble and learned Lord, Lord Lloyd of Berwick. We are here concerned with the most awful cases of murder but, as your Lordships have heard, prior to 2003 such cases were reviewed after 25 years. There is no suggestion that that gave rise to any difficulty or any problems at all. The argument for the amendment is very simple. It is simply wrong in principle for anyone, however wicked, to be told that they must spend the whole of their life in prison with no possibility of review, however long is going to elapse and whatever progress they may make.
It is unlikely that a murderer who has committed such grave crimes that he has received a whole-life tariff will ever make the progress that would make release appropriate, but the point surely is that basic humanity demands that the offender has a chance, however remote, to prove to others and to himself that he can live a worthwhile life. It is surely also very unfortunate from the point of view of prison administration that a group of highly dangerous persons —that is, dangerous when they are sentenced—should be told that however well they behave they will never be released. Surely that makes our prisons much more dangerous places.
I have no confidence that the Minister will tell the House this evening that he will accept this amendment. I very much hope that he will but I have no confidence that he will in the light of what he said in Committee. However, I urge him to ask himself whether our penal regime should really be based on a principle of locking the prison door and throwing away the key.
Lord Judd
My Lords, it takes a good deal of cheek for me, as a lay man, to come in after three speeches like that. All I can say is that in the society in which I want to live, no matter how heinous or terrible the crime that has been committed—clearly, these crimes are about terrible things that have happened—that society should be based on the principle of hope of redemption and hope that even the worst offender can become a better and decent person, otherwise it has a very negative culture that undermines a lot more than simply the issue of the prisoner himself. It is about the values and self-confidence of society as a whole. It is high time that this situation was put right. I am very privileged as a lay man to support these well qualified views that we have just heard. I hope that the Minister will take them seriously.
Lord Bach
My Lords, I can be very brief because the speeches that have been made set out the case very well indeed. Proper caution has been taken in the way in which the amendment has been worded. We all know that the people whom we are talking about have committed the most terrible offences and in many cases—in practically every case, I suggest—it may well be, given the caution included in the wording of the proposed new clause, that these people will stay in prison for the rest of their lives. All that the noble and learned Lord is asking, as a matter of principle, is that for anyone after they have served—this is the caution— 30 years of a sentence,
“it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice”—
of the day, presumably—
“and the trial judge if available, to refer the case to the Parole Board”.
Surely we have trust and faith in the Parole Board. The Parole Board has to be satisfied that,
“it is no longer necessary for the protection of the public that the prisoner should be confined, and … that in all the circumstances the release of the prisoner on licence would be in the interests of justice”.
My argument is that the Parole Board has to make hard findings in any case, particularly in cases of this kind. Even if the Parole Board is satisfied on these matters, the amendment says only that it “may direct his release under this section”.
The amendment is extremely cautious, but it is humane, in the way that has been described, for people who sometimes may seem not to deserve the protection of a humane state. However, we live in one, and surely the point of the penal policy is for it to be humane when it can be.
I listened carefully to what the Minister said in response to this matter in Committee and it seemed to me then that the Government’s real case is—I put it crudely—that the Daily Mail would not like it. If that is really the level of the argument that the Minister is going to put again today, it is quite unsatisfactory for a matter of principle of this kind. I hope that, if the Minister opposes the amendment, he will find a better argument than that.
Lord McNally
My Lords, the better argument is that if I accepted the amendment, the Labour Party would, as it has done on most law and order issues over the past 20 years, try to outbid the hard right to the right. If the noble Lord is announcing a new Labour Party policy on this issue, I shall give way. No, he is not, so let us not go too far down that road.
I acknowledge that this is a cautious amendment. We have heard from some very distinguished and learned Members of the House and I shall not try to match them in legal skills. However, I have been around politics for quite a few years and, in many ways, one has to make political judgments. If we had been debating this in the 1960s along with Sydney Silverman or in the 1970s with Roy Jenkins, we might have found a political atmosphere in which to discuss these issues. Sadly, things have moved on since then and if you are a legal reformer like me you try to make progress where you can.
Part 3 of the Bill carries us forward significantly in two areas of legal reform: reform of IPPs, which we will be discussing later, and the Rehabilitation of Offenders Act. I believe that those are worthwhile measures. I do not think that we are in a position at the moment to move as far as this amendment suggests, cautious though that may be in rational terms. Just as there are passionate arguments about the possibility of ultimate rehabilitation for even the most dangerous offenders, there are equally passionate arguments that there are some prisoners who should never be released under any circumstances. Both views were reflected in the debate in Committee. I do not think that we are in a position—never mind the opinion of the other place—to carry public opinion with us on this matter.
Lord Lloyd of Berwick
My Lords, I do not find that response in any way satisfactory. What single reason has the noble Lord for supposing that the public would not accept this amendment, just as they accepted the position before 2003? There was no problem then, so why should there be a problem now, unless it is a problem that has been specifically created by two political parties, each of which is trying to be tougher on crime than the other? That is the political judgment that the noble Lord has made and it has nothing to do with the justice of this amendment or restoring to these people the expectation that they had before 2003. I have no hope of persuading the noble Lord or his party, but I intend to test the opinion of the House, because this is something that should have been accepted by both political parties.
Lord McNally
Lord McNally
Lord Lloyd of Berwick
Lord Lloyd of Berwick
As the House will remember, Clause 117 provides that if a person has been convicted of a listed offence for which he has been sentenced to 10 years or more and then commits a further offence for which he might expect at least a 10-year sentence in prison, then he “must” be sentenced to life imprisonment unless it would be unjust to do so.
I described this clause in Committee as being pointless and indeed it is, but I now suggest that it is worse than pointless. In Committee, the Minister described the clause as introducing a new mandatory life sentence, and he placed particular emphasis on “mandatory” to show, no doubt, that the Government in this respect are being tough on crime. But a mandatory sentence is one that the court is obliged to pass, like the mandatory sentence of life imprisonment for murder. This clause is quite different from that.
Despite the use of “must”, the clause recognises that the judge will in fact pass the sentence which, in the particular circumstances, he believes to be the just sentence. That is exactly what judges always do when sentencing. Why then do the Government persist in calling it a mandatory sentence? It cannot surely be in order to create some sort of presumption that a life sentence should be passed. How would the judge begin to know what weight to give to such a presumption? Calling it a mandatory life sentence and the use of “must” in the light of the judge’s ability to pass the sentence he believes to be just is simply a contradiction in terms. To create contradictions in terms in all legislation is a mistake, particularly in legislation of a criminal kind which has to be interpreted by the courts. What the clause could have said was that the court “may” pass a life sentence in these circumstances. That would at least serve some purpose because it would cover those rare cases where the second offence does not carry with it a life sentence as its maximum. As it is, the clause is not only pointless for the reasons I have gone into but it is also ambiguous.
I have one other point. Do we want to create more life sentences? I look round to see if the noble Baroness, Lady Stern, is here and I do not thinks she is, so I will make the points which I know she would have made. She quoted what are on any view some very surprising figures that we have in England and Wales 7,663 persons serving life sentences. The figures, which have been provided by the Council of Europe, show that, whereas we have 12 lifers for 100,000 members of the population, for France the proportion is 0.85 per cent, for Germany it is 2.4 per cent, for the Netherlands it is 0.14 per cent, and for Sweden it is just over 1 per cent. The conclusion from these figures is inevitable. We have far too many prisoners serving life sentences when a long determinate sentence would do just as well. As for deterrence, it is very fanciful to suppose that a prisoner having served 10 years already would be deterred by the prospect of a life sentence rather than a long deterrent sentence and decide thereafter to go straight.
As for Amendment 157, we have a new Clause 134 which creates an offence of threatening with a knife. It too carries a mandatory sentence and, as such, suffers from all the defects which I have already mentioned in the earlier debate. It is even more pointless for the reason that we already have an offence of carrying a knife in a public place under the Criminal Justice Act 1988. It carries a maximum sentence of four years. In 2003 the Court of Appeal issued guidelines in which it said that if the knife was used to threaten, then the sentence should be towards the upper end of the scale. What, then, can be the purpose of now creating a new offence of threatening with a knife, carrying the same maximum sentence of four years? Clause 134 is exactly covered by the existing legislation. Its only purpose I can see is, as I have said before, to give the impression that the Government are doing something about knife crime. If they think that, then they deceive themselves. The only way to do anything about knife crime, as I mentioned in Committee, is to do what has been done in Glasgow and that is to get in among the gangs who use these knives. There, knife crime has been reduced by an astonishing 82 per cent. That is the way to reduce knife crime, not cluttering up the statute book with unnecessary provisions such as this. I beg to move.
Lord McNally
My Lords, a concern expressed by some noble Lords in Committee seemed to be that the new mandatory life sentence would be pointless—a word that the noble and learned Lord used several times—because courts will not have to apply it if it would be unjust to do so. It is right to say that the court will retain a discretion not to impose the new mandatory life sentence when the particular circumstances of the offence or the offender would make it unjust to do so. But that is very far indeed from meaning that the sentence is pointless. Save for murder, all mandatory sentence requirements on the statute book contain an exception of this kind. It is done so that mandatory sentence requirements will be compatible with human rights, and to prevent arbitrary sentencing, which cannot take any account of specific and individual circumstances. It is clearly not a permission or excuse for the court to do away with the mandatory sentence requirement. We expect that in the majority of cases the exception will not be engaged at all.
Last summer we made a commitment to introduce a tougher determinate sentencing regime to replace IPPs. A key element of that regime is mandatory life sentences for the most serious repeat offenders. The mandatory sentence requirement in Clause 117 will ensure that the worst repeat sexual and violent offenders receive a life sentence.
Amendment 157 would remove Clause 134, a new knife offence, from the Bill. The noble and learned Lord, Lord Lloyd, argued in Committee that the two new offences in Clause 134 are adequately covered by existing legislation and that, therefore, there is no reason for creating them. It is true that unlawful possession of a knife or offensive weapon is already a serious criminal offence which carries a maximum custodial sentence of four years. The intention of Clause 134 is to strengthen this existing legislative framework by targeting behaviour that amounts to more than simple possession but does not go so far as resulting in injury to the victim. The new offence will complement the existing offences of possession, which deal with those who carry offensive weapons or bladed or pointed articles in public places or schools without lawful authority, or reasonable excuse or good reason. It will do so by targeting behaviour that goes beyond possession, specifically targeting instances where an individual brandishes a knife or weapon, threatening another and placing them at immediate risk of serious physical harm. We want to send a strong message that this type of behaviour will not be tolerated. The minimum sentence attached to the new offence drives home the point that this kind of behaviour is extremely serious, even if it does not carry through into causing actual physical harm. Indeed, threatening people and placing them in fear of serious physical harm is serious enough that people should expect to face custody if they act in this way.
I know that the noble and learned Lord is particularly concerned about the minimum sentence for 16 and 17 year-olds contained in the new offences. I understand his concern, but in the other place my right honourable friend the Lord Chancellor made it clear at Third Reading that the Government had listened carefully to the arguments made in support of extending a minimum custodial sentence to all those under 18. The Government had then decided, on balance, that it would be appropriate to extend the minimum sentence to the narrower group of 16 and 17 year-olds who commit these offences. The Government have not made the decision to create these offences lightly, but consider it appropriate to have minimum sentences set out in legislation when a particular offence demands a firm and unequivocal response.
The Government cannot accept this amendment. To do so would undermine the strong message sent by this clause. We need this to complement the much wider range of initiatives we have in place to address problems posed by people who unlawfully carry or use knives in our communities. We believe that, in respect of 16 and 17 year-olds, Clause 134 strikes the right balance. I urge the noble and learned Lord to withdraw his amendment, and that this clause and Clause 134 should remain in the Bill.
Lord Lloyd of Berwick
My Lords, the noble Lord has not explained how a life sentence in the first amendment could in reality act as any greater deterrent than a second long determinate sentence. Nor has he dealt or attempted to deal with the astonishing figures that I mentioned, which show that we seem to have a thirst for creating life sentences that is entirely unique to the United Kingdom. It is not seen anywhere else in Europe. Nor, coming to the second amendment, has he explained why it is necessary to have another offence covering exactly the same ground as the existing offence. Of course it may be limited to handling a knife, but it is not confined to handling and clearly covers threatening, which is now given a new offence with exactly the same maximum sentence. However, I see that the Government cannot be persuaded, and therefore I must beg leave to withdraw the amendment.
Lord McNally
“46 (1) Any offence that—
(a) was abolished (with or without savings) before the coming into force of this Schedule, and(b) would, if committed on the relevant day, have constituted an offence specified in Part 1 of this Schedule.(2) “Relevant day”, in relation to an offence, means—
(a) for the purposes of this paragraph as it applies for the purposes of section 246A(2), the day on which the offender was convicted of that offence, and(b) for the purposes of this paragraph as it applies for the purposes of sections 224A(4) and 226A(2), the day on which the offender was convicted of the offence referred to in section 224A(1)(a) or 226A(1)(a) (as appropriate).”
Lord McNally
“13A In section 156 (pre-sentence reports and other requirements) after subsection (8) insert—
“(9) References in subsections (1) and (3) to a court forming the opinions mentioned in sections 152(2) and 153(2) include a court forming those opinions for the purposes of section 224A(3).””
“15A In section 224 (meaning of “specified offence” etc) in subsection (2)(b) for “225” substitute “224A”.”
“(3) In section 305(4) (interpretation of Part 12) in paragraph (bb) (inserted by paragraph 21 of this Schedule) after “imprisonment for life” insert “or, if the person is aged at least 18 but under 21, custody for life”.”
Lord McNally
“(10) In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence.(11) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1)(c) has effect as if the words “by section 224A or 225(2)” were omitted, and(b) subsection (6) has effect as if the words “in compliance with section 153(2)” were omitted.”
Lord Dholakia
“(10) The court must specify whether the requisite custodial period shall be one-half or two-thirds of the appropriate custodial term determined by the court.”
Lord Dholakia
My Lords, Clauses 118 and 119 deal with the new extended sentence and release on licence matters. I do not question the Government’s intention in what they are trying to achieve, but I do question the discrepancy that these clauses would create. My amendments would give the courts discretion over the release date of offenders given extended sentences. In appropriate cases, courts would be able to retain the current position whereby prisoners serving extended sentences are released after half the sentence. In other cases, where the court considered it necessary, it could specify that the offender will not be released until he or she has served two-thirds of the sentence.
At present, prisoners serving determinate sentences are released on licence after serving half the sentence in custody. This also currently applies to offenders serving extended sentences. Up to now, the point of an extended sentence has not been to increase the period which offenders spend in custody. Extended sentences are currently intended to make sure that when offenders who pose a risk to the public are released, they are subject to a longer period than usual of post-release supervision on licence. This means that they are subject to restrictive conditions and controls at the same time as receiving constructive rehabilitative help from the probation service. If offenders breach the conditions of their licence, they can be recalled to prison. This is a very useful provision which means that society maintains control over these offenders’ behaviour for a long period. However, the Bill would increase the time which an offender given an extended sentence spends in prison by stipulating that all extended sentence prisoners will not be released until the two-thirds point of their sentence.
When we debated this matter in Committee on 9 February, my noble friend Lord McNally explained the Government’s view that this would be appropriate for some prisoners who would now be given IPP sentences. However, the change in the Bill will not apply only to offenders who would now receive an IPP sentence. It will also apply to people who would currently receive an extended sentence. In future, these offenders will also have to serve longer in custody if this provision in the Bill remains unchanged. The Government have produced no explanation to demonstrate why it is necessary to change the rules for prisoners of the type who would now receive an extended sentence.
As the Bill stands, a court wishing to impose an extended period of post-release supervision will be able to do so in future only if it passes a sentence which also increases the length of time spent in custody before release to two-thirds of the sentence. If a judge does not want to increase the time that the offender spends in prison but simply wants to make sure that he or she has an extended period of supervision on release, why should he not be able to order this as he can under the current provisions for extended sentences?
When I moved a similar amendment in Committee on 9 February, my noble friend Lord McNally said:
“I listened to my noble friend’s idea about discretion … I will ponder this one between now and Report”.— [Official Report, 9/2/12; col. 467.]
That is the stage we have reached. These amendments give my noble friend the opportunity to let us know the result of his thinking on my suggestion. I beg to move.
Lord McNally
My Lords, I was teased earlier in the day about my Labour and trade union past. One quote that sticks in my mind is from the great TUC general secretary George Woodcock, who once said that good trade unionism is a serious of squalid compromises. Sometimes law reform or criminal justice reform is a series of compromises. The noble Lord, Lord Bach, shakes his head. Of course it is. We have to carry Parliament with us, we have to carry the various parts of the coalition Government with us, and we have to carry public opinion with us. Reflecting on my noble friend’s amendment, when we announced our decision to reform the Rehabilitation of Offenders Act, one of the campaigning groups rang up and said, “But you have not gone as far as Labour promised in their 2002 White Paper”. That is true, but we were reforming the Act for the first time in 37 years. Labour had talked big and done nothing.
A key element of our IPP replacement regime is the new extended determinate sentence for dangerous offenders. On this sentence, the offender will always serve at least two-thirds of the custodial term in prison. In the most serious cases early release will be at Parole Board discretion. This means that offenders stay inside until the end of that term. My noble friend has proposed that the court should have a discretion as to whether the minimum time in prison offenders on the new extended sentence should serve is one-half or two-thirds of the custodial term. He has explained that one of his key concerns is that there should be an appropriately long licence for the offender without the need to increase the period spent in prison. I have written to my noble friend to address the point regarding the licence.
The new extended licence consists of a custodial term set by the court, during which—or at the end of which—release will occur. This must then be followed by an extended period of licence, which is also set by the court, and may be up to five years in length for a violent offence and eight years in length for a sexual offence. The courts will base the custodial term on seriousness and factors relevant to that. The extended licence period will address risk. As the proposals stand, the court should be able to impose a sentence that will require a suitably long period of licence regardless of when during the custodial term the offender is released. Therefore, I do not think there is a problem with licence, but if there were I am not sure that this amendment would be the solution. It would be entirely possible for a serious offender to remain in prison until the end of the custodial term regardless of the point at which he becomes eligible for parole.
I also note that this would be a new decision for judges, and it is not clear on what basis they would make it. Seriousness and risk management are already addressed by the decisions the court will already make in relation to the sentence. Asking them to decide additionally between different sentence formats would seem to make this a very complex sentencing decision.
Finally, as I have said before, in June last year the Government committed to introducing a tougher determinate sentencing regime to replace IPPs. A key part of that tougher regime is that those on public protection sentences, now that they are no longer liable to receive IPP sentences, will spend more of their determinate sentence in prison. We think this is needed to enhance public protection and deliver public confidence. It will provide more time for offenders and the National Offender Management Service to work towards rehabilitation. I know that my noble friend and his friends in NACRO will continue to campaign on these issues and it is right that they should do so. However, I hope that my noble friend will feel able to withdraw his amendment.
Lord Dholakia
My Lords, I thank the Minister for his explanation. I am delighted with the information he has given. It is always nice to niggle him from time to time so that we can hear some lovely anecdotes. As long as he keeps bashing the Labour Party, I have no reason not to withdraw the amendment.
Lord McNally
“(8) In subsections (1)(a) and (6), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence. (9) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1) has effect as if paragraph (c) were omitted, and(b) subsection (4) has effect as if the words “in compliance with section 153(2)” were omitted.”
Lord McNally
Lord McNally
“4 (1) Section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence imposed as well as driving disqualification) is amended as follows.
(2) In subsection (4)(e)—
(a) for “227” substitute “226A”, (b) for “half” substitute “two-thirds of”, and (c) for “227(2C)(a)” substitute “226A(5)(a)”.(3) In subsection (4)(f)—
(a) for “228” substitute “226B”, (b) for “half” substitute “two-thirds of”, and(c) for “228(2B)(a)” substitute “226B(3)(a)”.(4) In subsection (8) omit “or 247(2)”.
(5) In subsection (9) omit paragraph (b).”
“Crime (Sentences) Act 1997 (c.43)4A In Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) in paragraph 9(2)(a) after “244,” insert “246A,”.
Crime and Disorder Act 1998 (c.37)4B In section 51A of the Crime and Disorder Act 1998 (sending cases to the Crown Court: children and young persons) in subsection (3)(d) for “226(3) or 228(2)” substitute “226B”.”
“5A In section 3A (committal for sentence of dangerous adult offenders) in subsection (2) for “225(3) or 227(2)” substitute “226A”.
5B In section 3C (committal for sentence of dangerous young offenders) in subsection (2) for “226(3) or 228(2)” substitute “226B”.”
“6A (4) Section 82A (determination of tariffs of life prisoners) is amended as follows.
(5) Omit subsection (4A).
(6) In subsection (7) for the definition of “life sentence” substitute—
““life sentence” means a sentence mentioned in subsection (2) of section 34 of the Crime (Sentences) Act 1997 other than a sentence mentioned in paragraph (d) or (e) of that subsection.””
“9 (1) Section 106A (interaction of detention and training orders with sentences of detention) is amended as follows.
(2) In subsection (1), in paragraph (b) of the definition of “sentence of detention”, after “section” insert “226B or”.
(3) In subsection (6)—
(a) before “228” insert “226B or”, and(b) after “Board under” insert “subsection (5)(b) of section 246A or (as the case may be)”.”
“9A (1) Section 147A (extension of driving disqualification where custodial sentence also imposed) is amended as follows.
(2) In subsection (4)(e)—
(a) for “227” substitute “226A”, (b) for “half” substitute “two-thirds of”, and(c) for “227(2C)(a)” substitute “226A(5)(a)”.(3) In subsection (4)(f)—
(a) for “228” substitute “226B”, (b) for “half” substitute “two-thirds of”, and(c) for “228(2B)(a)” substitute “226B(3)(a)”.(4) In subsection (8) omit “or 247(2)”.
(5) In subsection (9) omit paragraph (b).”
“16 (1) Section 156 (pre-sentence reports and other requirements) is amended as follows.
(2) In subsection (3)(a) for “section 227(1)(b) or section 228(1)(b)(i)” substitute “section 226A(1)(b) or section 226B(1)(b)”.
(3) After subsection (9) (inserted by paragraph 13A of Schedule 19) insert—
“(10) The reference in subsection (1) to a court forming the opinion mentioned in section 153(2) includes a court forming that opinion for the purposes of section 226A(6) or 226B(4).”.
“16A In the heading of section 225 (life sentence or imprisonment for public protection for serious offences) omit “or imprisonment for public protection”.
16B In the heading of section 226 (detention for life or detention for public protection for serious offences by those aged under 18) omit “or detention for public protection”.
16C In section 231 (appeals where convictions set aside) in subsection (1)—
(a) in paragraph (a) after “225(3)” insert “, 226A”,(b) in paragraph (b)— (i) before “227(2A)” insert “226A(2) or”, and(ii) before “227(2B)” insert “226A(3) or”, and(c) in paragraph (c) after “may be)” insert “226A(2) or”.16D Omit section 232 (certificates of convictions for the purposes of sections 225 and 227).”
“19A In section 330 (orders and rules) in subsection (5)(a) omit—
(a) “227(6),”, and (b) “228(7)”. 19B Omit Schedule 15A (offences specified for the purposes of sections 225(3A) and 227(2A)).”
“Counter-Terrorism Act 2008 (c.28)20A In section 45(1)(a) of the Counter-Terrorism Act 2008 (sentences or orders triggering notification requirements under Part 4 of that Act) after sub-paragraph (vi) (but before the “or” at the end of that sub-paragraph) insert—
“(via) detention under section 226B of that Act (extended sentence of detention for certain dangerous offenders aged under 18),”.Coroners and Justice Act 2009 (c.25)20B (1) Section 126 of the Coroners and Justice Act 2009 (determination of tariffs etc) is amended as follows.
(2) In subsection (1)—
(a) omit paragraphs (a) and (b), (b) in paragraph (c) for “227 of that Act” substitute “226A of the Criminal Justice Act 2003”, and(c) in paragraph (d) for “228” substitute “226B”.(3) In subsection (2)—
(a) omit paragraph (b),(b) in paragraph (c) for “227(3) of that Act” substitute “226A(6) of the Criminal Justice Act 2003”, and(c) in paragraph (d) for “228(3)” substitute “226B(4)”.(4) In subsection (4) for the words from “has” to the end substitute “means a sentence mentioned in subsection (2) of section 34 of the Crime (Sentences) Act 1997 other than a sentence mentioned in paragraph (d) or (e) of that subsection”.
Consequential repeals20C In consequence of amendments made by section 116, 118 or 119 or this Schedule—
(a) in the Criminal Justice Act 2003, omit paragraph 4 of Schedule 18, and(b) in the Criminal Justice and Immigration Act 2008 omit— (i) sections 13, 14, 15, 16 and 18(2);(ii) Schedule 5;(iii) in Schedule 26, paragraph 76.”
Lord McNally
Lord McNally
“Sections 116, 118 and 119: consequential and transitory provision
Schedule 20 (abolition of certain sentences for dangerous offenders and new extended sentences: consequential and transitory provision) has effect.”
Lord McNally
“2 (1) Section 237 (meaning of “fixed-term prisoner” etc) is amended as follows.
(2) In subsection (1)(b), before “227” insert “226A, 226B,”.
(3) In subsection (3), before “227” insert “226A or”.”
“4A (1) Section 246 (power to release prisoners on licence) is amended as follows.
(2) In subsection (4)(a), after “section” insert “226A,”.
(3) In subsection (6), in the definition of “term of imprisonment”, before “227” insert “226A, 226B,”.”
“(b) before the second “227” insert “226A, 226B,”.”
“6A In section 258 (early release of fine defaulters and contemnors), in subsection (3A), before “227” insert “226A, 226B,”.”
“(3) In subsection (7) before “227” insert “226A, 226B,”.”
Lord McNally
“Dangerous offenders subject to service law etc
Schedule (Dangerous offenders subject to service law etc) (dangerous offenders subject to service law etc) has effect.”
Lord Ramsbotham
“( ) The Secretary of State shall—
( ) delegate responsibility for implementing release plans for IPP prisoners, and( ) make a Statement to both Houses of Parliament setting out to whom they have delegated this responsibility.( ) The Secretary of State shall, once the work is completed and within one year of enactment, report to both Houses of Parliament when all release plans for IPP prisoners are completed.”
Lord Ramsbotham
My Lords, I shall be as brief as I can. Overcrowding, as we all know, is the scourge of imprisonment. With far too many people in prison who should not be there, inadequate resources are unable to be deployed to the people who need them most; that is, the people who present the greatest risk to the public.
Having welcomed the end of the unspeakable indeterminate sentence in this Bill, I was very concerned about those people who are in prison serving indeterminate sentences who do not know their release date. Some have already exceeded their tariff and more exceed their tariff almost every day. That is why I raised the issue in Committee. I was very grateful to the Minister for his letter of 16 February in response, in which he described to me the workings of the Indeterminate Sentence Prisoners Co-ordination Group, which had been set up in 2010 not to manage the cases of individual prisoners but, interestingly enough, to provide strategic oversight—a word for which I was berated by the Minister earlier—and co-ordination of the whole system of management of the whole sentence itself.
The purpose of this group is, apparently, to develop and promote the most effective means of managing indeterminate sentence prisoners and to ensure that resources are effectively directed. To this end, it has developed and co-ordinated strategies about assessment, sentence planning and delivery, access to interventions in the parole process, prison capacity issues and control in the community following release. It has also developed a tool for providing information on the numbers requiring specific interventions and also allocation to local prisons. In other words, there is a strategy; there is a group responsible for overseeing the strategy; and there is a tool for doing what is required. The only thing that is missing is the application of all this to the individuals who need individual plans made; otherwise, they will stay in prison for an indeterminate time caused by the fact that there are not the resources to do anything about getting them out.
In Committee, I proposed that it might be worth changing the burden of proof so that the Prison Service had to prove why someone should not be released rather than the person concerned having to prove that they should be. Therefore, this amendment is very much related to the information that the Minister gave me. Why could not the Indeterminate Sentence Prisoners Co-ordination Group be entrusted with making the plans for every individual indeterminate sentence prisoner, so that people—most particularly, those prisoners and their families from whom I receive several letters every day—know something about their future? I tabled this amendment again in the hope that something will be done to tackle this problem; otherwise I fear that the Government will be tarred with the same brush as those who introduced the sentence in the first place. I beg to move.
Lord Thomas of Gresford
“( ) The Secretary of State shall report to both Houses of Parliament every six months thereafter—
( ) the number of IPP prisoners remaining in custody after the tariff date in each case has expired,( ) the arrangements made for such prisoners to complete their courses,( ) the proportion of such prisoners who have already completed their courses, and( ) the number of outstanding applications to the Parole Board for release.”
Lord Thomas of Gresford
Amendment 154YUA would add the need for reports to the amendment moved by the noble Lord, Lord Ramsbotham. Although I welcome the abolition of IPPs, I am still concerned about those who have served their tariff but have not been released. The best way of dealing with that is to keep a very close eye on what happens to them. Under my amendment we would know every six months the number of IPP prisoners remaining in custody after their tariff date has expired, the arrangements made for them to complete their courses, the proportion of such prisoners who have already completed their courses, and the number of outstanding applications to the parole board for release. One would hope that within a foreseeable period, perhaps two years, one would see that there was no need for a report because there were no IPP prisoners left in this category. That is the purpose of my amendment, and I look forward to my noble friend’s response.
Lord Beecham
My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.
Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.
Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.
Lord McNally
My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.
The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.
In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.
I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.
On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.
On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.
My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.
Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.
I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.
Lord Thomas of Gresford
My Lords, I believe that I should reply first. The Minister’s response was encouraging. He said that Ministers were here to be questioned. I shall make a note in my diary to put in a Written Question every six months, asking for the information—or something like it—that I seek in the amendment. It is very important that a close eye is kept on those who remain under an IPP sentence but whose tariff has expired. I beg leave to withdraw my amendment.
Lord Ramsbotham
My Lords, I, too, am grateful to the Minister for his explanation. I simply say to the noble Lord, Lord Gresford, that perhaps we could put in Written Questions every other six months.
I acknowledge what the noble Lord, Lord Beecham, said. Having tried various proposals in Committee and seen them rejected, I searched for other proposals. Perhaps we have learnt not only that there is a genuine desire for progress, which the Minister outlined, but that he has a tool that will enable him to answer our Written Questions, which I assure him he will receive. In that spirit, I beg leave to withdraw my amendment.
Lord McNally
Baroness Gale
“Disclosure of information about convictions etc. of violent abusers to members of the public
(1) The responsible authority for each area must, in the course of discharging its functions under arrangements established under section 325 of the Criminal Justice Act 2003, consider whether to disclose information in its possession about the relevant previous convictions of any violent abuser managed by it to any person deemed by the authority to be at risk.
(2) In the case mentioned in subsection (3) there is a presumption that the responsible authority should disclose information in its possession about the relevant previous convictions of the offender to the particular member of the public.
(3) The case is where the responsible authority for the area has reasonable cause to believe that—
(a) a serious violent abuser managed by it poses a risk in that or any other area of causing serious harm to a particular at risk person, and(b) disclosure of information about the relevant previous conviction of the offender to the particular member of the public is necessary for the purpose of protecting the at risk person from serious harm caused by the offender.(4) The presumption under subsection (2) arises if the person to whom the information is disclosed requests the disclosure.
(5) Where the responsible authority makes a disclosure under this section—
(a) it may disclose such information about the relevant previous convictions of the offender as it considers appropriate to disclose to the member of the public concerned, and(b) it may impose conditions for preventing the member of public concerned from disclosing the information to any other persons.(6) Any disclosure under this section must be made as soon as is reasonably practical having regard to all the circumstances.
(7) The responsible authority for each area must compile and maintain a record about the decisions it makes in relation to the discharge of its functions under this section.
(8) The record must include the following information—
(a) the reasons for making a decision to disclose information under this section,(b) the reasons for making a decision not to disclose information under this section, and(c) the information which is disclosed under this section, any conditions imposed in relation to its further disclosure and the name and address of the person to whom it is disclosed.(9) Nothing in this section requires or authorises the making of a disclosure which contravenes the Data Protection Act 1998.
(10) This section is not to be taken as affecting any power of any person to disclose any information about a violent abuser.”
Baroness Gale
My Lords, I am pleased to speak to the amendments in my name, even at this late hour. In Committee on 9 February we debated Amendments 155 and 156, which deal with Clare's law. I spoke in detail about the tragic case of Clare Wood, a young woman who was murdered in 2007 by her ex-partner, George Appleton. Six days after he murdered Clare, he committed suicide. It was then discovered that he had a long background of violence against women. Clare had no way of knowing; if she had, perhaps it could have saved her life. I pay tribute to Michael and Adam Brown, Clare’s father and brother, for their campaign to change the law. I also thank my right honourable friend Hazel Blears MP, who is Michael’s Member of Parliament and has campaigned with him to bring in Clare’s law.
The national domestic violence disclosure scheme represents an important addition to the measures successive Governments have taken in dealing with domestic violence. Until the intervention of your Lordships’ House, this Bill might have done so much damage to the rights of victims of domestic abuse because of the legal aid cuts, but finally there is something that bolsters the rights of women—and men—to live in freedom from violence.
Baroness Hamwee
My Lords, I am sorry that I was unable to take part in the debate in Committee.
The noble Baroness has spoken powerfully about a very serious subject. I share the views of those who responded to the consultation with some doubts about whether it was appropriate or necessary to change the law. These included key stakeholders such as Women’s Aid, Refuge, Liberty and the Local Government Association. I share their concerns about whether introducing a new law is realistic.
I do not know anyone who has gone into a relationship with the mindset that suggests checking up on the new partner through this sort of scheme. Most importantly, it could well be a distraction from the important work that still needs to be done in this area, but I will not spend more time on that. The thrust of the noble Baroness’s speech was about the pilots. If legislation was not needed for the pilots, legislation is not needed for their assessment. I would not lose faith in any Government if, having committed themselves to pilots, they would seek to avoid an evaluation and assessment. We have too much on the statute book. Let us see the evaluation of a pilot put in place on the basis of the law that we have now before Amendments 155 and 156 or anything like them. I will take my cue from my noble friend and put asking questions about it in my diary. I dare say that the noble Baroness, Lady Gale, will do the same. She has a great record for raising these issues, so she is not going to let this rest. Parliament is going to hear about it.
Baroness Northover
My Lords, when we debated these amendments in Committee my noble friend Lord McNally was able to tell the Committee how sympathetic the Government were to the thinking behind them, borne out of the circumstances of the tragic murder of Clare Wood by Clare’s ex-boyfriend who had previous convictions for violent offences. I pay tribute to Clare’s family and to the noble Baroness, Lady Gale, and others on this issue.
As the noble Baroness has flagged, the Home Secretary has announced the Government’s intention to pilot a domestic violence disclosure scheme for one year in the four police force areas of Greater Manchester, Gwent, Nottinghamshire and Wiltshire. The pilot will start this summer, and I hope that noble Lords will welcome it. The pilot, which is similar in spirit to that envisaged by the noble Lady’s amendment, will be established under existing police powers and test two types of process.
The first will be triggered by a request by a member of the public, in other words, a “right to ask”. The second will be triggered by the police, where they make a proactive decision to disclose the information in order to protect a potential victim, which we are calling a “right to know”. The Government believe that a disclosure scheme, which establishes a framework with recognised and consistent procedures for disclosing information, will enable new partners of previously violent individuals to make informed choices about how and whether they take that relationship forward. I note what my noble friend Lady Hamwee said on this, and it may be that she would prefer the second pilot.
The Home Secretary’s announcement follows a consultation held by the Government. A clear majority of respondents favoured the introduction of a national disclosure scheme. However, the consultation raised important issues about the scope and proportionality of the information that should be disclosed to potential victims, the safeguards that will be needed against malicious applications and the paramount need for the safety of victims to be taken into account. These are serious matters, and the Home Secretary has concluded that it is therefore right that these issues are addressed and tested in a pilot to ensure that the disclosure scheme is compatible with all relevant law and accounts for the safety and needs of potential victims. The Home Office is undertaking further scoping work to decide how the disclosure scheme will work.
Amendment 156ZA would require the Secretary of State to commission an independent review of the pilot and to publish its findings. I can confirm, as my noble friend Lady Hamwee indicated, that we will conduct an assessment of the domestic violence disclosure scheme as part of the pilot process and make our conclusions public. I hope that that reassures the noble Baroness, Lady Gale. The assessment will be used to inform decisions about whether the scheme should be expanded further after piloting.
The House may be assured that the Government’s aim is to end all forms of violence against women and girls. Soon after coming to office, we set out a new strategy to end violence against women and girls, and on 8 March we published an updated action plan in this area. The domestic violence disclosure scheme pilot announced by the Home Secretary is part of that updated action plan. The fact that approximately two people are killed by their current or former partner each week underlines the need for action. The Government believe that the domestic violence disclosure scheme will be an important additional tool that enhances the protection available to victims. I thank the noble Baroness, Lady Gale, for her work in this area, and I hope that with these reassurances she will be willing to withdraw her amendment.
Baroness Gale
I thank the Minister for her reply and the noble Baroness, Lady Hamwee, for her contribution to this debate. I agree that in the early stages of a new romance a woman is not likely to check on her new partner but, as time progresses, she may have queries and worries. We know the success of Sarah’s law. I am sure that the pilot and the assessment could provide a lot of evidence which would make it useful for rolling out throughout the country.
I am glad that the assessments about which the Minister spoke will be made public. As the noble Baroness, Lady Hamwee, suggested, we will be putting this in our diaries, checking up and asking questions. Certainly, at the end of the first year everyone will want to know the results of the assessment. I am glad that the Minister once again made the Government’s commitment to end violence against women. Both the previous Labour Government and the coalition Government have been committed to this and we have a lot in common. I do not think that there is much between us at all. I thank the Minister for her response. With that, I beg leave to withdraw the amendment.
Lord Ramsbotham
“Benefits payments to prisoners
(1) Regulations shall provide that a person undergoing imprisonment or detention in legal custody who, at the time that imprisonment or custody commences, is in receipt of any of the qualifying benefits, shall be assessed, during his or her time in imprisonment or custody, for eligibility for those benefits at the time of his or her imprisonment or custody.
(2) For the purposes of this section, the qualifying benefits are—
(a) universal credit;(b) income support;(c) personal independence payment, to the extent provided for in regulations made under section 84 (prisoners) of the Welfare reform Act 2012; and(d) any other benefits provided for in regulations made under this section.(3) Regulations made under this section shall provide that the assessment required under subsection (1) shall commence as soon as a person is received into imprisonment or custody.
(4) Regulations shall in particular provide that a person appointed by the Secretary of State shall record, at the time a person is received into imprisonment or custody, details of any qualifying benefits which are in payment at that time, together with any personal information needed to establish the person’s identity, including but not limited to their national insurance number.
(5) An assessment of eligibility under subsection (1) shall be completed in such time as to ensure that the person assessed receives payment of any benefits for which he is assessed as being eligible no later than one week after his release from imprisonment or custody.
(6) Regulations under this section shall be made by the Secretary of State and shall be subject to the affirmative resolution procedure.”
Lord Ramsbotham
My Lords, I shall again be brief, because we had a good discussion on this in Committee. I was very glad that the Minister told the House about the advance plans to use the work programme as the primary vehicle for help and support so that all prison leavers who claim jobseeker’s allowance will enter the work programme from the first day of release from prison. The background to this is the present situation where people leave prison with a release grant of £46 and then have to live for up to three weeks before their claim, having been processed by the jobcentre, comes through. This amendment is intended to prevent that, because it is the most terrible cause of reoffending. However, the comments in Committee dealt with jobseeker’s allowance, and mention was made of universal credit and the ability to use payment on account to cover the gap before a universal credit payment came through. What was not mentioned in Committee was the progress on all the other claims that might be processed or bid for by prisoners. Mention also was made of work being done with the Department for Work and Pensions to ensure that this was looked at.
My proposal might seem prescriptive but it is based on observation of the cause of considerable misery when people are released. It suggests that the jobcentre staff currently working in every prison should be required to process the applications and entitlements of every prisoner while they are in prison so that proper plans are made. When they leave they would not have to start doing work that could have been done already, and thus, we hope, it will prevent them reoffending, as seems to happen when people find themselves without the means to support themselves for too long before their benefits come through. The purpose of this amendment is therefore to tidy up the discussions that we had in Committee, and to ask the Minister to ensure that the work with the Department for Work and Pensions is in progress.
Baroness Hayter of Kentish Town
My Lords, I thank the noble Lord, Lord Ramsbotham, for continuing to bring this issue forward. It is a vital area and we should work to ensure that when people leave custody, they will have swift access to the benefits to which they are entitled.
As I mentioned in an earlier debate, we think of coming out of prison as something positive. However, it can be traumatic for people who rely on benefits in a system which they see as complicated, slow and sometimes unhelpful. One report has made the point that people who leave prison with no financial contingency and are highly reliant on the benefit system might, if not helped, return to crime, which has been a proven source of income for them in the past. We know that there have been delays and problems with pre-custodial claims which need to be resolved before a new claim can be made. There can be delays because a person has no fixed abode, and there are sometimes queries over the dates of prison admission and release dates. We know that eight in 10 prisoners are reliant on benefits and that one-third do not have access to a bank account, which makes any down payment for a new home particularly difficult.
Prisoners released over the next few years will come out to a whole new welfare system. The Welfare Reform Act will have changed things enormously, and even those claiming benefits before they went in will have to negotiate a whole new system of rules. There will also be the benefit cap, the bedroom tax and different units to which the payments are made. As the noble Lord, Lord Ramsbotham, said, although we welcome the advice given on the jobs programme, released prisoners will also need help with benefits if they are to survive when they come out.
This amendment, which I trust the Government will accept, will be good for prisoners. It will also be good for society and the state if it reduces the chances of reoffending and helps ex-prisoners to re-establish themselves in society.
Baroness Northover
My Lords, I, too, thank the noble Lord, Lord Ramsbotham, for continuing to examine the practical difficulties that some ex-prisoners face. We appreciate the difficulties that they may face when trying to resettle in the community and we have taken a number of steps to address these problems.
When the noble Lord, Lord Ramsbotham, withdrew his amendment in Committee, he expressed the hope that the Ministry of Justice and the Department for Work and Pensions would communicate more effectively on this issue. My noble friend Lord McNally wrote to my noble friend Lord Freud and I can give the noble Lord an absolute reassurance that our departments are working very closely to address the gap between release and receipt of benefits.
Prisoners’ needs are already often assessed on reception as part of the sentence plan. New prisoners are specifically asked about benefits by staff at induction and are referred to one of the 140 Jobcentre Plus employment and benefit advisers currently working in prisons. In addition, all prison leavers have their rehabilitation needs reviewed as part of the discharge process only weeks before release. It is this period close to release that is key to meeting resettlement needs, and that is where the Government have invested resources.
The Government are doing a great deal to overcome resettlement barriers and are currently implementing a strong package of measures. The key strategy to take this forward is the data-linking project which is being undertaken by the Ministry of Justice and the DWP. The project shows that more than half of offenders sentenced to custody are claiming benefits immediately prior to their incarceration, and two years after release from prison almost half are claiming out-of-work benefits. This is the scale of the task we face as we seek to make improvements to the process.
However, improvements are there. From 1 March, offenders leaving custody have their jobseeker’s allowance claims processed before they leave. We expect to reach some 30,000 prisoners a year. Jobcentre Plus advisers are rightly in the lead on providing advice and administering benefit claims, but they are working closely with prison staff to facilitate this process, including advice on financial support available prior to release. We believe that this is the right point at which to make assessments for eligibility.
We are also aiming to address the finance gap through our plans for universal credit payments. Under our proposals, an applicant, on leaving prison with a valid claim, can be paid his claim immediately through payment on account in the same way as any other benefit claimant. All of this is intended to help prison leavers get their benefits quickly and help increase their chances of finding work, which is also a key part of the Government’s agenda on reducing reoffending.
The noble Lord’s Amendment 156A would have prisons potentially duplicating the work of Jobcentre Plus. In addition, the process proposed by the amendment would require the Prison Service to conduct sometimes wasted work. A mandatory assessment of all offenders on entering into custody would either be premature—as the work done on entering prison is highly likely to need updating as the sentence continues—or not needed at all, if the personal circumstances of that person do not justify it.
The Government are fully committed to ensuring that ex-prisoners have the support they need to make a successful and productive return to society. The noble Lord, Lord Ramsbotham, is quite right in his aim in this respect. Our proposals on ex-prisoners’ access to welfare benefits are part of that commitment. I hope that what I have said today reassures the noble Lord and that he will withdraw his amendment.
Lord Ramsbotham
My Lords, I am grateful to the Minister for that reply. Just to correct her, I had no intention of duplicating any work; I was hoping that the Jobcentre Plus representative in prison would do the work while in prison so that it did not have to be done in the jobcentre outside prison. So it was early work by the jobcentre—nothing more by the Prison Service. I am very glad to hear that this has happened, and it is useful that, at last, the Department for Work and Pensions and the Ministry of Justice have come together, because this is a piece of joint working that could have been done years ago and would have saved a great deal of misery among released prisoners. Rather like the previous amendment, this is something on which the Government can expect to be questioned at fairly regular intervals in the future. Again, in that spirit, I beg leave to withdraw my amendment.
Baroness Northover
“Dangerous offenders subject to service law etcPart 1Sentences for dangerous offenders subject to service law etcArmed Forces Act 2006 (c. 52)1 The Armed Forces Act 2006 is amended as follows.
2 After section 218 and the italic heading “Required or discretionary sentences for particular offences” insert—
“218A Life sentence for second listed offence
(1) This section applies where—
(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct);(b) the corresponding offence under the law of England and Wales is an offence listed in Part 1 of Schedule 15B to the 2003 Act;(c) the offence was committed after this section comes into force; and(d) the sentence condition and the previous offence condition are met.(2) Section 224A(2) of the 2003 Act applies in relation to the offender.
(3) In section 224A(2)(a) of that Act as applied by subsection (2)—
(a) the reference to “the offence” is to be read as a reference to the offence under section 42; and(b) the reference to “the previous offence referred to in subsection (4)” is to be read as a reference to the previous offence referred to in subsection (5) of this section.(4) The sentence condition is that, but for this section, the Court Martial would, in compliance with sections 260(2) and 261(2), impose a sentence of imprisonment for 10 years or more, disregarding any extension period imposed under section 226A of the 2003 Act as applied by section 219A of this Act.
(5) The previous offence condition is that—
(a) at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in Schedule 15B to the 2003 Act (“the previous offence”); and(b) a relevant life sentence or a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence.(6) A sentence is relevant for the purposes of subsection (5)(b) if it would be relevant for the purposes of section 224A(4)(b) of the 2003 Act (see subsections (5) to (10) of that section).
(7) A sentence required to be imposed by section 224A(2) of that Act as a result of this section is not to be regarded as a sentence fixed by law.”
3 (1) Section 219 (dangerous offenders aged 18 or over) is amended as follows.
(2) For subsection (2) substitute—
“(2) Section 225(2) of the 2003 Act applies in relation to the offender.”
(3) In subsection (3) omit “and (3A)”.
4 In the heading of that section for “Dangerous” substitute “Life sentence for certain dangerous”.
5 After that section insert—
“219A Extended sentence for certain violent or sexual offenders aged 18 or over
(1) This section applies where—
(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);(b) the corresponding offence under the law of England and Wales is a specified offence;(c) the court is of the required opinion (defined by section 223); (d) the court is not required to impose a sentence of imprisonment for life by section 224A(2) of the 2003 Act (as applied by section 218A of this Act) or section 225(2) of that Act (as applied by section 219 of this Act); and(e) condition A or B is met.(2) Condition A is that, at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in Schedule 15B to the 2003 Act.
(3) Condition B is that, if the court were to impose an extended sentence of imprisonment under section 226A of the 2003 Act as a result of this section, the term that it would specify as the appropriate custodial term would be at least 4 years.
(4) Subsections (4) to (9) of section 226A of the 2003 Act apply in relation to the offender.
(5) In section 226A(4) to (9) of the 2003 Act as applied by this section—
(a) the reference in subsection (6) to section 153(2) of the 2003 Act is to be read as a reference to section 261(2) of this Act;(b) the reference in subsection (7) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England and Wales;(c) the reference in subsection (8)(a) to a specified violent offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified violent offence; and(d) the reference in subsection (8)(b) to a specified sexual offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.(6) In this section “specified offence”, “specified sexual offence” and “specified violent offence” have the meanings given by section 224 of the 2003 Act.”
6 Omit section 220 (certain violent or sexual offenders aged 18 or over).
7 In section 221 (dangerous offenders aged under 18) for subsection (2) substitute—
“(2) Section 226(2) of the 2003 Act applies in relation to the offender.”
8 In the heading of that section for “Dangerous” substitute “Life sentence for certain dangerous”.
9 After that section insert—
“221A Extended sentence for certain violent or sexual offenders aged under 18
(1) This section applies where—
(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);(b) the corresponding offence under the law of England and Wales is a specified offence;(c) the court is of the required opinion (defined by section 223); (d) the court is not required by section 226(2) of the 2003 Act (as applied by section 221 of this Act) to impose a sentence of detention for life under section 209 of this Act; and(e) if the court were to impose an extended sentence of detention under section 226B of the 2003 Act as a result of this section, the term that it would specify as the appropriate custodial term would be at least 4 years.(2) Subsections (2) to (7) of section 226B of the 2003 Act apply in relation to the offender.
(3) In section 226B(2) to (7) of the 2003 Act as applied by this section—
(a) the reference in subsection (4) to section 153(2) of the 2003 Act is to be read as a reference to section 261(2) of this Act;(b) the reference in subsection (5) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England and Wales;(c) the reference in subsection (6)(a) to a specified violent offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified violent offence; and(d) the reference in subsection (6)(b) to a specified sexual offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.(4) In this section “specified offence”, “specified sexual offence” and “specified violent offence” have the meanings given by section 224 of the 2003 Act.”
10 Omit section 222 (offenders aged under 18: certain violent or sexual offences).
Part 2Consequential provisionJuries Act 1974 (c. 23)11 In Part 2 of Schedule 1 to the Juries Act 1974 (persons disqualified from jury service) in paragraph 6(d) after “2003” insert “(including such a sentence imposed as a result of section 219A, 220, 221A or 222 of the Armed Forces Act 2006)”.
Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27))12 In article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (sentences excluded from rehabilitation under the Order) in sub-paragraph (g)(iii) after “section” insert “226A, 226B,”.
Criminal Justice Act 1982 (c. 48)13 In section 32 of the Criminal Justice Act 1982 (early release of prisoners) in subsection (1A)—
(a) before “227” insert “226A or”, and(b) after “219” insert “, 219A”.Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)14 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
15 In section 99 (conversion of sentence of detention to sentence of imprisonment) in subsection (6)—
(a) after “226” insert “, 226B”, and(b) after “221” insert “, 221A”.16 In section 106A(1) (interaction with sentence of detention) in the definition of “sentence of detention”—
(a) before “228”, in the second place it appears, insert “226B or”, and(b) before “222” insert “221A or”.Criminal Justice and Court Services Act 2000 (c. 43)17 The Criminal Justice and Court Services Act 2000 is amended as follows.
18 In section 62 (release on licence etc: conditions as to monitoring) in subsection (5)(f) after “221” insert “, 221A”.
19 In section 64 (release on licence etc: drug testing requirements) in subsection (5)(f) after “221” insert “, 221A”.
Sexual Offences Act 2003 (c. 42)20 In section 131 of the Sexual Offences Act 2003 (young offenders: application) in paragraph (l) before “222” insert “221A or”.
Criminal Justice Act 2003 (c. 44)21 In section 237 of the Criminal Justice Act 2003 (meaning of fixed term prisoner etc) in subsection (1B) after paragraph (b) insert—
“(ba) references to a sentence under section 226A of this Act include a sentence under that section passed as a result of section 219A of the Armed Forces Act 2006;(bb) references to a sentence under section 226B of this Act include a sentence under that section passed as a result of section 221A of the Armed Forces Act 2006;”.Armed Forces Act 2006 (c. 52)22 The Armed Forces Act 2006 is amended as follows.
23 (1) Section 188 (consecutive custodial sentences) is amended as follows.
(2) In subsection (2) in paragraph (c)—
(a) for “228” substitute “226B”, and(b) for “222” substitute “221A”.(3) In subsection (4) in paragraph (c)—
(a) before “228” insert “226B or”, and(b) before “222” insert “221A or”.24 In section 209 (offenders aged under 18 convicted of certain serious offences: power to detain for specified period) in subsection (7)—
(a) for “section 226(2)” substitute “sections 224A and 226(2)”, and(b) for “section 221(2)” substitute “sections 218A and 221(2)”.25 In section 211 (offenders aged under 18: detention and training orders) in subsection (4)—
(a) after “218,” insert “218A,”, and(b) for “222” substitute “221A”.26 In section 221(3) (dangerous offenders aged under 18) after “as applied” insert “by”.
27 In section 223 (the “required opinion” for the purposes of sections 219 to 222) in subsection (1)—
(a) for “220(1)” substitute “219A(1)”, and(b) for “222(1)” substitute “221A(1)”.28 In the heading of that section for “222” substitute “221A”.
29 For section 224 (place of detention under certain sentences) substitute—
“224 Place of detention under certain sentences
Section 235 of the 2003 Act (detention under sections 226, 226B and 228) applies to a person sentenced to be detained under section 226(3), 226B or 228 of that Act as applied by section 221, 221A or 222 of this Act.”
30 (1) Section 228 (appeals where previous convictions set aside) is amended as follows.
(2) For subsection (1) substitute—
“(1A) Subsection (3) applies in the cases described in subsections (1B) to (2).
(1B) The first case is where—
(a) a sentence has been imposed on any person under section 224A of the 2003 Act (as applied by section 218A of this Act);(b) a previous conviction of that person has been subsequently set aside on appeal; and(c) without that conviction, the previous offence condition mentioned in section 218A(1)(d) would not have been met. (1C) The second case is where—
(a) a sentence has been imposed on any person under section 225(3) of the 2003 Act (as applied by section 219(2) of this Act);(b) the condition in section 225(3A) of the 2003 Act was met but the condition in section 225(3B) of that Act was not; and(c) any previous conviction of the person without which the condition in section 225(3A) would not have been met is subsequently set aside on appeal.(1D) The third case is where—
(a) a sentence has been imposed on any person under section 226A of the 2003 Act (as applied by section 219A of this Act);(b) the condition in section 219A(2) was met, but the condition in section 219A(3) was not; and (c) any previous conviction of the person without which the condition in section 219A(2) would not have been met is subsequently set aside on appeal.(1E) The fourth case is where—
(a) a sentence has been imposed on any person under section 227(2) of the 2003 Act (as applied by section 220(2) of this Act);(b) the condition in section 227(2A) of the 2003 Act was met but the condition in section 227(2B) of that Act was not; and(c) any previous conviction of the person without which the condition in section 227(2A) would not have been met is subsequently set aside on appeal.”(3) In subsection (2)—
(a) for “Subsection (3) also applies” substitute “The fifth case is”; and(b) in paragraph (a) after “226” insert “of this Act”.(4) After subsection (3) insert—
“(3A) Subsection (3B) applies where—
(a) a sentence has been imposed on a person under section 224A of the 2003 Act (as applied by section 218A of this Act);(b) a previous sentence imposed on that person has been subsequently modified on appeal; and(c) taking account of that modification, the previous offence condition mentioned in section 218A(1)(d) would not have been met.(3B) An application for leave to appeal against the sentence mentioned in subsection (3A)(a) may be lodged at any time within 29 days beginning with the day on which the previous sentence was modified.”
(5) In subsection (4) for “Subsection (3) has” substitute “Subsections (3) and (3B) have”.
31 In section 237 (duty to have regard to the purposes of sentencing etc) in subsection (3)(b)—
(a) after “sections” insert “218A,”, and(b) before “225(2)” insert “224A,”.32 In section 246 (crediting of time in service custody: terms of imprisonment and detention) in subsection (6)(b)—
(a) before “228” insert “226B or”, and(b) before “222” insert “221A or”.33 (1) Section 256 (pre-sentence reports) is amended as follows.
(2) In subsection (1)(c)—
(a) for “220(1)” substitute “219A(1)”, and(b) for “222(1)” substitute “221A(1)”.(3) After subsection (9) insert—
“(10) The reference in subsection (1)(a) to a court forming any such opinion as is mentioned in section 260(2) or 261(2) includes a court forming such an opinion for the purposes of section 218A(4).”
34 (1) Section 260 (discretionary custodial sentences: general restrictions) is amended as follows.
(2) In subsection (1)(b)—
(a) before “225(2)” insert “224A,”, and(b) before “219(2)” insert “218A,”.(3) After subsection (4) insert—
“(4A) The reference in subsection (4) to a court forming any such opinion as is mentioned in subsection (2) or section 261(2) includes a court forming such an opinion for the purposes of section 218A(4).
(4B) The reference in subsection (4) to a court forming any such opinion as is mentioned in section 261(2) also includes a court forming such an opinion for the purposes of section 226A(6) or 226B(4) of the 2003 Act (as applied by section 219A or 221A of this Act).”
35 (1) Section 261 (length of discretionary custodial sentences: general provision) is amended as follows.
(2) In subsection (1)—
(a) before “225” insert “224A,”, and(b) before “219(2)” insert “218A,”.(3) In subsection (3) for “220, 222” substitute “219A, 221A”.
36 In section 273 (review of unduly lenient sentence by Court Martial Appeal Court) in subsection (6)(b)—
(a) before “225(2)” insert “224A,”, and(b) before “219(2)” insert “218A,”.37 In section 374 (definitions applying for purposes of the whole Act) in the definition of “custodial sentence” after paragraph (e) (but before the “or” at the end of that paragraph) insert—
“(ea) a sentence of detention under section 226B of that Act passed as a result of section 221A of this Act;”.Counter-Terrorism Act 2008 (c. 28)38 In Schedule 6 to the Counter-Terrorism Act 2008 (notification requirements: application to service offences) in paragraph 5(1)(a) after sub-paragraph (vi) (but before the “or” at the end of that sub-paragraph) insert—
“(via) detention under section 226B of that Act (extended sentence of detention for certain dangerous offenders aged under 18);”.Part 3Transitory provision39 (1) In relation to any time before the repeal of section 30 of the Criminal Justice and Court Services Act 2000 (protection of children: supplemental) by Schedule 10 to the Safeguarding Vulnerable Groups Act 2006, that section has effect with the modification in sub-paragraph (2).
(2) In subsection (1), in paragraph (dd) of the definition of “qualifying sentence”, after “2003” insert “(including such a sentence imposed as a result of section 221, 221A or 222 of the Armed Forces Act 2006)”.”
Lord Sharkey
“Rehabilitation of offenders: equality of treatment
In any case where a statute provides for a person to have a right to apply to the Secretary of State to have a conviction or caution disregarded, the provisions of that statute shall apply in the same way to any relative of any deceased person who would, had they still been alive, have been eligible to apply to have such a conviction or caution disregarded in accordance with the provisions of that statute.”
Lord Sharkey
My Lords, I will speak briefly to this amendment. As your Lordships will recall, there is a provision in the Protection of Freedoms Bill which will, when it is enacted, allow all those convicted of homosexual acts subsequently decriminalised to apply to the Secretary of State to have their convictions disregarded. This provision was widely welcomed in all parts of your Lordships’ House. According to an estimate provided by the House of Commons Library, since the relevant laws came into force in 1885, 75,000 men have been convicted of such now-decriminalised offences. Of those 75,000 men, it is estimated that 16,000 are still living. The Protection of Freedoms Bill will allow these men to apply to have their convictions disregarded; this will provide real help and comfort to them and their families, relatives, friends and loved ones. It will help to put right a serious historical injustice.
As things stand, however, this comfort and rehabilitation will not be available to families, relatives, friends and loved ones of those convicted under these repealed statutes and who have since died. Our amendment simply proposes equal rehabilitation and straightforward equality of treatment for all those convicted under the repealed laws. Under the provisions of the amendment, the relatives of those now convicted under the repealed laws but now deceased would be able to apply to have the convictions disregarded in exactly the same way as those who are still living.
We believe that this very simple extension is fair and right in principle. It would provide some comfort and closure for the families, relatives, friends and loved ones of those who have been convicted but are not able to apply for a disregard for themselves. We believe that all those convicted under these repealed and cruel laws should have an equal opportunity for rehabilitation. The amendment would go a small way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.
One of the men who falls into this category is Alan Turing. This is the year of the centenary of his birth, and the Royal Mail is to issue a commemorative stamp in his honour. I think that everyone would acknowledge that Turing’s work at Bletchley Park on cracking the Enigma code contributed greatly to our efforts in the last world war and that Turing is, of course, the father of modern computer science. I know that my noble friend the Minister is well aware of the injustice of Turing’s treatment and, by extension, is well aware of the injustice in the treatment of all gay men similarly convicted and punished.
In answer to my Question for Written Answer in February, the noble Lord, Lord McNally, said:
“It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd—particularly poignant given his outstanding contribution to the war effort”.—[Official Report, 2/2/12; col. WA 342.]
Those sentiments echo those of the then Prime Minister, Gordon Brown, who, in writing in the Daily Telegraph in September 2009, said of Turing:
“The debt of gratitude he is owed makes it all the more horrifying, therefore, that he was treated so inhumanely. He was in effect tried for being gay”.
He continued by saying:
“I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him”.
Alan and the many thousands of other gay men who were convicted as he was convicted, under homophobic laws, were treated terribly. These many thousands of gay men were treated terribly, and our amendment would help to put some of that right. I hope that my noble friend will be able to give this amendment sympathetic consideration and I beg to move.
Lord Bach
My Lords, from the opposition Front Bench I thank the noble Lord for the impressive way in which he moved the amendment, and an impressive amendment it is too. He could not have put the case better. We look forward to hearing what the Minister has to say in reply, and we would be very surprised if it is not sympathetic.
Baroness Northover
My Lords, I, too, thank my noble friend Lord Sharkey for putting his case, and indeed I have deep sympathy for it. The amendment appears to extend the provisions contained in the Protection of Freedoms Bill so that they are also available to those who are no longer alive. The provisions in that Bill allow a person to apply to have his historic convictions for consensual gay sex with over-16 year-olds deleted from official records, the effect of which is that those convictions will no longer affect that person’s life or career. This was a commitment made in our programme for government. However, the objective is not to rewrite history. The provision in the Protection of Freedoms Bill does not state that the person was wrongfully convicted, nor does it pardon them. It is just that they can now be treated for all purposes in law as someone who was not convicted of those offences.
The position in relation to those who have been convicted of this type of offence and have since died is different. I understand the strength of feeling about such convictions, and the cruelty of the laws under which they were imposed, and I know that this is particularly true in relation to the conviction of Dr Alan Turing. As Gordon Brown said in 2009, while we cannot put the clock back, we recognise that his treatment was utterly unfair and we are all deeply sorry for what happened to him. He deserved so much better. That said, I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences. As my noble friend himself points out, the numbers involved are potentially very large. I understand his aim, but I am afraid that we cannot agree to his amendment. I realise that he will be disappointed, but I am afraid that I must invite him to withdraw his amendment.
Lord Sharkey
I must say that I am extremely disappointed by that response. I would also point out to my noble friend that I was not calling for a pardon, and that I know the difference between a pardon and a disregard. Nor was I asking for the clock to be put back, as perhaps seemed to be the case.
This was, above all, a very simple opportunity to put right a historic wrong. It also seems to me that the notion that there is a large number involved, and that it therefore makes this difficult, sits oddly with the fact that the impact assessment for the Protection of Freedoms Bill showed precisely no cost in relation to the 16,000 who are still alive. It is hard to see how you could multiply that by any figure and get a significant cost at all.
I will end by saying that I feel truly disappointed by the response. It seems unnecessarily mean-spirited, and although I shall withdraw the amendment now, this is something that I shall pursue, and look for support in pursuing, at Third Reading.
“Amendment to the Scrap Metal Dealers Act 1964
In section 5 (other offences relating to scrap metal) after subsection (2) insert—“(3) If any scrap metal dealer accepts or makes payment in cash, that dealer shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) When deciding the level of fine to be charged under subsections (1) to (3), a court may take into account—
(a) the value of the scrap metal in question;(b) the provenance of the scrap metal in question;(c) the compliance of the scrap metal dealer with the provisions of sections (1) to (3) of this Act generally; and(d) any other factors which the court deems to be relevant.””
Lord Faulkner of Worcester
My Lords, this has been quite a long journey. I first asked an Oral Question on 3 October last year, arguing the case for cashless transactions and the necessity of amending the Scrap Metal Dealers Act 1964. On 10 November, in a Remembrance Day debate initiated by the noble Lord, Lord Selkirk, a number of noble Lords, including me, spoke about the despicable theft of war memorials for their scrap metal value.
The Bill we are debating tonight received a Second Reading in your Lordships’ House on 21 November, and I gave notice of my intention then to table the amendment which appears today on the Marshalled List. I drew attention to ACPO’s estimate that the national cost of metal theft was £770 million. I also referred to the 16,000 hours of delays suffered by rail passengers over the past three years caused by the theft of signalling cable, and to other examples of metal theft such as lead from church roofs, manhole covers, telephone wire and works of art.
Since then the scale of the problem has continued to grow, and every week brings fresh accounts of new theft. Last week, for example, my own local newspaper, the Worcester News, reported that 350 metres of BT underground copper cable had been stolen, which cut off telephone and broadband service in one of the major districts of the city. Numerous heritage railways have written to me to say that scores of metal items such as rails, lamps and even a fork-lift truck have been stolen for their scrap value.
I have another press report dated 1 March saying that seven churches are being targeted and robbed every night for the lead on their roofs; and in a new twist Network Rail reports that, in recent signalling cable thefts on the Cotswold line between Oxford and Worcester, the theft of a 650-volt distribution cable had been concealed by the insertion of a short length of domestic cable in its place—an incredibly dangerous manoeuvre. On it goes.
To his credit, the Minister has indicated that he is determined to do something about it, as did his predecessor, the noble Baroness, Lady Browning. I am particularly grateful to her, and to the right reverend Prelate the Bishop of London, for putting their names to Amendment 156D, and for their stamina in staying here at this late hour tonight.
The Home Secretary announced in a Written Statement on 26 January that government amendments to the Bill would be tabled to,
“create a new criminal offence to prohibit cash payments to purchase scrap metal; and significantly increase the fines for all offences under the existing Scrap Metal Dealers Act 1964”.—[Official Report, 26/1/12; cols. WS 80-81.]
The Minister may be aware that I immediately issued a statement warmly welcoming that announcement. It took a long time for the government amendments to appear, but last week they finally did, and we are debating them now as Amendments 157F, 157G and 157J.
What the Government are proposing is fine except for one baffling respect. For reasons that have not been properly explained so far, they are proposing an exemption for itinerant sellers. As I understand it, that will mean that the sale of metal to an itinerant collector will not have to be recorded, whether it is a householder getting rid of some unwanted domestic appliance or a metal thief using the itinerant as a way of getting into the chain. By proposing that exemption, the Government are opening up a serious loophole that could undermine much of the benefit that their move towards cashless transactions will create.
My understanding is that it is not difficult to register under the Scrap Metal Dealers Act 1964 as an itinerant collector, which is defined in that Act as,
“a person regularly engaged in collecting waste materials, and old, broken, worn out or defaced articles, by means of visits from house to house”.
While there may not be too many of those registered at the moment, surely there is a risk that there will be many more once word went round that this was a way to avoid the cashless requirement of being a scrap-metal dealer.
The Minister will be aware that the itinerant seller exemption has caused alarm among many in the industry. For example, SITA, to which both the Minister and I have paid visits in recent months to discuss this legislation, said this in its latest briefing:
“There is no reason why a cashless system cannot be implemented by bona fide itinerant collectors, along with the rest of the scrap metal industry … Moreover, the requirement for a cashless transaction between the itinerant collector and a scrap metal merchant will in any event necessitate the former to maintain a bank account with provision for electronic or cheque payment. It is therefore illogical to exempt the initial transaction between the seller and the itinerant collector, but to (rightly) mandate a cashless transaction for the on-sale of the material to a scrap metal dealer. Traceability over the entire chain, from seller to intermediary to dealer, will be broken along with proof of provenance of the metal presented for sale”.
That is a pretty convincing argument and is why I have tabled my own Amendment 157H to the government amendment to delete the exemption. I shall listen very carefully to the Minister's response to these points before deciding whether to press that amendment. In particular, I hope that I will hear him say that the Scrap Metal Dealers Act will be replaced by an entirely fresh piece of legislation to be introduced in the new Session. That could deal with all the issues relating not just to itinerant sellers but to the registration and licensing of the trade generally. Meanwhile, it would be churlish of me not to welcome the Government’s acceptance of the argument that I first put forward almost six months ago that an essential first step in tackling the epidemic of metal theft is to move to cashless transactions and to increase the penalties for persons committing this appalling, anti-social and dangerous crime. I beg to move.
The Minister of State, Home Office (Lord Henley)
It might be useful if I intervene at this stage. In doing so, I want to make it quite clear that I hope other noble Lords will intervene after me despite the fact that this is Report. This is purely because I have amendments in this group and it might speed up the process by which we debate these matters.
I pay tribute to the noble Lord, Lord Faulkner of Worcester, for all that he has done. We have listened to him and, as he knows, we have responded as much as we can in due course. I also want to make it quite clear that we in the Government recognise what a serious problem it is. I cannot list in detail the individual Peers, Members of the Commons and others who have been to see me. The right reverend Prelate the Bishop of London was the first to come and see me to highlight the problem relating to the churches. Obviously, this problem goes beyond the churches and beyond art theft; we all know about that Barbara Hepworth that was stolen recently. This affects communities and businesses throughout the country. We have seen damage to our infrastructure, to the railways, to communications and so on again and again and that damage is very great indeed. The noble Lord quite rightly cited an estimate of some £700 million. That is probably the effect on business and the community as a whole. What is depressing is how little money it actually brings in to the thieves themselves. The Barbara Hepworth that I mentioned, insured for £500,000 or £1 million or whatever, will have gone to some scrap-metal yard and been ground down and sold off for literally a matter of a few pounds. The real problem arises in the scrap-metal yards in that whoever was the first person to receive that—the first fence as it were—must have known that property was as hot as you can get because you do not often get Barbara Hepworths being brought in; they are not something you happen to find on the side of the road. So that is the problem and that is why the Government believe they should take urgent action.
That action can be taken in a number of different ways. The first and most important one is enforcement. The Government have made it quite clear that we want to address enforcement. My right honourable friend the Chancellor of the Exchequer announced late last year that there was an extra £5 million of funding for a new dedicated metal theft task force. The British Transport Police has taken the lead and is doing a great deal of work on this. In certain parts of the country we have seen great improvements in enforcement. I recently visited the north-east and saw what it was doing in terms of Operation Tornado, improving enforcement and increasing the number of arrests and cash seizures from the scrap-metal industry. That is happening throughout the country. Enforcement is one strand of what we must do and there are other things that we can do in terms of design and hardening objects so that they are less easily stealable or more traceable. However, we have concluded that legislation of one form or another is the only sustainable long-term solution to the growing menace of metal theft. That is why we have put down these amendments. They are similar to the amendments the noble Lord has put down but I have to say, as I always would, I think the government amendments are superior to his and I hope he will accept them in due course.
I want to keep my remarks brief, but will explain that the new amendments create a new criminal offence to prohibit cash payments to purchase scrap metals. We believe that at the moment it is just too easy for someone having stolen something to convert that something into cash, no questions asked. They also significantly increase the fines that are available for the majority of the offences under the Scrap Metal Dealers Act 1964, which regulates the scrap-metal-dealing industry. That is important. It only goes some way because, as I have said on a number of occasions, we believe that the Scrap Metal Dealers Act is not now fit for purpose but that it is worth at least upgrading the offences under that Act. But one should always remember that under the old Theft Act 1968 there is an offence of seven years for theft and more importantly, as I said earlier, under handling we have some 14 years available.
Lord Campbell-Savours
The story in the Commons is that the Government are saying that that subsequent legislation will be brought in under the Private Member’s Bill procedure in the House of Commons. Is that true?
Lord Henley
My Lords, I do not believe all stories that I hear, either in this House or in another place. I was going to come on to what we will do with scrap- metal dealers in due course. To put it briefly, we have found this opportunity under this legislation to make a number of changes, but we cannot completely redo the Scrap Metal Dealers Act under this legislation because of the scope of the Bill. We will certainly look at all legislative opportunities in the new Session to see how we can revise the Scrap Metal Dealers Act. All that I and other colleagues have said is that we believe that the Scrap Metal Dealers Act is no longer fit for purpose; it is past its sell-by date. How we revise that legislation, we will have to address in the new Session.
I have spoken of the first two changes that we are bringing in as a result of the Bill: making cash payments illegal and increasing fines under the Scrap Metal Dealers Act. Thirdly, we want in this Bill to revise the police entry powers to ensure compliance with the new offence. That, again, is something that will make the whole enforcement procedure easier for the police.
Lord Roberts of Conwy
Can the Minister confirm that even under his amendment itinerants can still have scrapyards of their own? Can they still have cash transactions and still not be inspected except under warrant?
Lord Henley
I shall come on to the question of itinerants in due course. It is something addressed by Amendment 157H in the name of the noble Lord, Lord Faulkner. I will deal with it in some detail because it is important, as there has been a degree of misunderstanding about that point.
We are bringing forward these three changes under the Bill, and they are just a first step in taking forward a coherent package of measures to tackle all stages of the illegal trading of stolen scrap metal. In response to the noble Lord, Lord Campbell-Savours, I can give an assurance—although I cannot give a timescale for this—that we shall bring forward further measures in due course. We believe that going cashless, which is the crucial part of this amendment, will remove the “no questions asked” culture that allows low-risk criminal enterprise for metal thieves and unscrupulous dealers. That is something that we want to deal with.
I turn to Amendment 157H, tabled by the noble Lord, Lord Faulkner, as an amendment to government Amendment 157G. It removes the exemption for itinerant collectors—and I make it clear that it is purely itinerant collectors whom we are dealing with—who have an order in place under Section 3(1) amending the record requirements that apply to them. Let me make clear that this is not a blanket exemption. Only itinerant collectors who are subject to an order under Section 3(1) of the Scrap Metal Dealers Act 1964—an Act that I described as being past its sell-by date, but it is still what we have—coming from their local authority and approved by the local chief officer of police will be exempted. This will be a modest number of individuals who will be known to both the police and their local authority. They will also be bound by environmental regulations with the need to have a waste carrier’s licence under the Waste (England and Wales) Regulations 2011.
Most importantly, no itinerant collector will receive cash from the scrap-metal industry on which they are reliant for selling scrap to. Travelling around the streets picking up scrap, they will, when they take it on to the scrap yard, have to have that payment made not in cash but by some other means. Their transactions will be traceable for the first time, with the scrap-metal industry recording details of the transaction and the payment method and to whom that payment is made.
I hope that that assurance will be sufficient to allow the noble Lord to understand that I do not think his amendment is necessary. It might be that we will have to come back to this at Third Reading, but I hope that on this occasion he will accept that we have got it more or less right and that some of the reporting of the exemption for the so-called itinerants is not exactly what he thought it was.
Lord Berkeley
Can the Minister clarify Section 3(1)(a) of the Scrap Metal Dealers Act 1964? It seems a bit odd that the only condition required of these people is that they,
“obtain from the purchaser a receipt showing the weight of … scrap metal comprised in the sale”.
We have all had receipts from people for getting things like that, probably without even a piece of carbon paper between the two. Why is it necessary to give such people an exemption when the only condition I see here is that they get a scrappy piece of paper as a receipt? It seems to be left wide open to shove things in a container and send them off to China without any paperwork at all.
Lord Henley
My Lords, first, they are not going to be shoving it into a container. This is, as it were, the rag and bone man going around collecting metal in the street. If he wants to get money for it, he is going to have to take it to a scrap yard. He is not going to get money for it by any other means. At that point, the provisions we are debating come into effect. If the noble Lord feels that we are creating an exemption that will create a loophole and drive a coach and horses through what we are doing, just by this small means of exempting the itinerants going around, he has probably got it wrong. He obviously does not accept what I have to say, but I think that he has misunderstood where we are coming from.
Baroness Browning
My Lords, I am grateful to the Minister for the explanation that he has given to the whole House, particularly in respect of the amendment tabled by the noble Lord, Lord Faulkner of Worcester, about itinerant collectors. However, I was pleased to add my name to Amendment 156D because, as my noble friend will be aware, the overall increase in metal theft is very clearly parallel to the rising cost of metals around the world. It is a world market, and the theft of the more valuable metals, such as copper, has particularly increased as the world price has gone up.
However, I remind my noble friend—not least in the context of the welcome news that we have in the government amendments tonight and the proposal completely to reform and amend the existing scrap metal Act—that it is very clear from the evidence from ACPO and others that scrap-metal theft is part of organised crime in this country. It is very easy to think that these are just opportunistic thefts, when people happen to see something that they might take on a dark night, and that sort of thing, but that is far from the case. Given that it is part of organised crime, I hope that my noble friend, in looking to get to grips with the reform needed in this area, will bear in mind the fact that very often it is the criminals who organise the people who, in practice, carry out the theft who make the most money. They orchestrate others: sometimes people who, I am quite sure, are fully aware that they are carrying out a criminal act but who themselves are not necessarily the beneficiaries of the full amount of the value of that scrap.
Reference was made just now to the Hepworth statue and how its melt-down value would not have been very much in comparison to its insurance value. The right reverend Prelate, on behalf of the churches, made very clear the overall cost to churches when they are robbed of the lead on their roofs, very often not just once, and the difficulty with insurance going up. The cost of these crimes is not just the melt-down value of the metals. It is also the consequential losses.
I would also respectfully remind my noble friend of the developing pattern in metal theft of what is referred to as rare earth. Very small quantities of these valuable metals can raise significantly more than copper and other more traditional metals. They are the sort of metals found in wind turbines and electricity generating stations. They are now starting to appear because yet again their value on the world market has gone up. Any reform to the scrap-metal act needs to take account of current trends, which are moving away from some of the more traditional metals to some of these more sophisticated metals.
I welcome the Government’s move to take out the question of this being a cash-based business—and one hesitates almost to use the word “business” in this context, but I suppose one must. They should bear in mind in any changes that they are bringing in to cover these wider issues that there is a sense of urgency about the need for more radical change. That change, if it is to address the increasing problems that we have, must look to those trends and to the future.
The Lord Bishop of London
My Lords, I am very grateful indeed for the way in which the Minister, in particular, and the Government have responded to the difficulties that have been raised. I am particularly grateful to the noble Lord, Lord Faulkner, for his speech. I want to make one very simple point, as the hour is rather late. I seem to remember that Steptoe and Son was an itinerant operation that operated from a scrap-metal yard. Surely there is not a cordon sanitaire between the scrap-metal operation and the itinerant collector. Is it really the case that the only people that the Minister describes as having received these licences are people unconnected with scrap-metal yards? It seems a rather bizarre idea, which is why I am tempted to support the further amendment in the name of the noble Lord, Lord Faulkner.
Lord Campbell-Savours
The House is indebted to my noble friend Lord Faulkner of Worcester for tabling this amendment because it raises an issue that we should not be discussing at nearly midnight in an empty House of Lords. It should have been debated at prime time, as it is a central part of the legislation. The Minister referred to a sustainable long-term solution and then to the need for further legislation. If the Private Members’ Bill procedure is used in the House of Commons—I am told that the idea is that it will be used because of the shortage of time in the next Session due to the need to push through the House of Lords reform Bill—it is distinctly probable that, unless the Government give it government time, the Bill will fall. Those of us who have been in the Commons know that most Private Members’ Bills in the House of Commons fall. There is simply an objection to block them on the Friday when they are being considered. We need something far more substantial than simply a vague reference to further legislation being considered in the future. We need a consolidated piece of legislation, which brings the Vehicles (Crime) Act 2001, the Scrap Metal Dealers Act 1964, the Motor Salvage Operators Regulations, this Bill dealing with cashless arrangements and a properly enforceable regulatory system together in a single piece of legislation. I believe that the way the Government are proceeding today is the wrong way.
I wish to quote from a question and answer session that took place in the House of Commons yesterday, as the Minister’s reply let the cat out of the bag. Graham Jones, the MP for Hyndburn, asked:
“Does the Minister not recognise that the public may be shocked that a cashless scheme might not be cashless under the Home Secretary’s proposals, which exclude mobile collectors? If they are exempt, that will create a huge loophole in the system. … Is the exemption not a giant loophole and an own goal?”.
James Brokenshire, on behalf of the Government, said:
“The … answer is no. Those involved in door-to-door sales will need to trade their product through scrap metal dealers, so they will be subject to the Bill’s provisions”.—[Official Report, Commons, 19/3/12; col. 506.]
What does that mean in reality? A thief may go into wherever, steal a war memorial, break it up, contact an itinerant trader and sell it for cash to the itinerant trader, as I can see nothing in this legislation that stops him selling it for cash. The itinerant trader either then boxes it up and sends it abroad or destroys the markings which show the origins of the material. Then he goes into the legitimate system by selling it to a registered trader. In other words, in those conditions the Government’s objective to stop cashless trading where it affects war memorials, rolls of copper from railway lines or whatever, will not be met at all because the trade will simply switch into an itinerant Traveller trade. At least at the moment that trade is going into an area of the market which perhaps is acting illegally in parts but which should under the new arrangements be subject to a cashless system. Therefore, as I say, the Government’s objective will not be met.
The noble Lord says that under Section 3(1)(a) of the 1964 Act there is an element of control over these itinerant traders. However, we know that they have no phone lines. They probably use pay-as-you-go mobiles. They rarely have an address. They invariably have no fixed abode. They also claim that they have no bank accounts. They are capable of exporting abroad because they have networks. The noble Baroness, Lady Browning, referred to the networks that are run by criminals. They can send the material to Scotland, which I understand is not introducing this legislation, although I am sure the Minister will correct me if I am wrong about that. This whole business will switch from a legitimate area—it is legitimate in the sense that we could potentially control the movement of these items which have been taken illegally—into an illegitimate area of trade run by itinerant Travellers, who will not in any way be subject to any legislation because, as far as they and the authorities are concerned, it is unenforceable. Therefore, why do we not simply delay the legislation and introduce a proper piece of legislation which requires a more proportionate system of regulation and which deals more effectively with the problem?
The other day someone asked me over the phone how you measure the material going into these yards. Often, someone sends out a skip, the material is put in the skip and they do not know when they are collecting it and paying for it how much of what is in the skip comprises metal. Who will be responsible for dividing it up when, at the end of a year, the authorities come in—or perhaps come in—and carry out some kind of audit to ensure that all the metal has been paid for by way of a cheque or a legitimate means of payment? The question of separation of materials by scrapyards is something that the Government should deal with.
We are told that at the end of five years this matter will be reviewed. Why are we waiting five years? The industry says that it will not work. The Minister has been told repeatedly by the industry that, although it wants a cashless system, it believes that the way in which the Government are introducing it, without dealing with the wider problems of regulation, will inevitably lead to problems and that the system will fail. If this measure is to go through tonight and return to the Commons, surely even at this late stage Ministers might have a rethink. The industry does not object to the principle of a cashless system, in the way that my noble friend has suggested, but it objects to the fact that there is a loophole which will build a new industry in the hands of itinerant Travellers, who will relish the thought that they will be able to make money now that others have been restricted and regulated and that they will be subject to no proper regulation whatever.
Lord Roberts of Conwy
My Lords, I am as appalled and as horrified as anyone at the heartless, dangerous and very costly spate of metal thieving that we have suffered in recent years. There is nothing new in the offence as such. I remember the theft of a bronze head of Gladstone from a very public spot in Penmaenmawr in my erstwhile parliamentary constituency in the 1980s, where the great man used to bathe in the sea. Despite all my efforts, the bust was never found. Of course, it was an isolated incident, not part of an intense extensive campaign of metal thieving of the kind that we have experienced in recent times.
I wholeheartedly support the special efforts that are being made by the authorities, and especially by the task force led by the British Transport Police, to gain intelligence and arrest the perpetrators of these dastardly crimes. However, the amendments that we are discussing do not fall directly into this category. They are directed at the potential receivers of stolen metal. I stress the word “potential” because I am not at all convinced that the bulk of stolen metal is disposed of through the numerous scrap-metal dealers, many of whom are properly registered with local authorities and keep proper books of receipts and disposals according to the provisions of the Scrap Metal Dealers Act 1964.
Yet these scrap-metal dealers are the main targets of the amendment. Although they can be visited by the police and other authorities at any time, their relationship with the authorities is usually strongly co-operative, if only because the scrapyards themselves are often the target of metal thieves. The real culprits are more likely to be found among the unregistered dealers and operators. They are far more likely to be the receivers of stolen scrap metal, along with the so-called itinerants whom we have talked about already this evening. Not all are as innocuous as Steptoe & Son, who curiously enjoyed special exemption under the 1964 Act. Such people cannot be inspected by the police without a warrant. Their position is still somewhat ambiguous and confusing under the government amendment because, as I read it, they can still maintain a scrapyard and be exempt from the no-cash deal restriction.
We heard an explanation from the noble Lord when I intervened, but I am not at all clear how an itinerant collector of scrap can end up with no cash at the end of his deal when he gets back to the yard, which is presumably his own yard or that of his partner. Of course, to be effective, the provisions of the 1964 Act require close supervision, and that has been missing in many local authorities in the past. I suggest that that is quite a different matter from suppressing the scrap metal crime wave that demands our attention at present.
I suspect that the prohibition of cash transactions has more to do with the Revenue than the theft issue. I would be glad if the Minister could enlighten us further on that cashless requirement. If the Revenue is concerned about VAT, I am told that dealers in the Republic of Ireland collect the tax for the Government and that the system works satisfactorily. In this context, we tend to forget the social benefit of scrapyards in disposing of metal waste from residential and other properties. We are glad to see defunct materials taken away from our premises. The fact that the plumber or the electrician gets some money for the old cast iron cistern or old lead piping does not bother us individually. We are glad to be rid of it in registered scrapyards. The majority of these transactions involve comparatively small sums, and there is an argument for allowing de minimis cash transactions of this kind, which I hope the Government will consider. They are the bread and butter income of many small scrapyards, which may have to discontinue trading if they are subjected to cashless trading that may drive customers—sellers—away to unlicensed traders.
The cashless trading requirement must be a unique prohibition in this country. I can think of no other trading activity where the use of cash is banned. I have concentrated on the typical registered scrapyard, which is unfairly and indiscriminately targeted by the cashless proposal favoured by the Government and by the amendment tabled by the noble Lord, Lord Faulkner. However, many of them are collectors and contributors to the success of the 300 or so members of the British Metal Recycling Association, who are the major players in the green manufacturing business, recovering some 13 million tonnes of metal from 2 million cars, 5 billion food and drink cans and so on to sell back to metal producers. They contribute £6 billion to the UK economy and generate exports of about £3.6 billion.
The BMRA appears to be reconciled to the cashless proposal but wants a better definition of scrap-metal dealers as such and a clampdown on the unlicensed operators. It also wants clarification of cash allocations to ensure the better identification of sellers. It has a great deal of that in the amendment. All this seems eminently sensible, and the Government have certainly gone some way to meet its demands. The outstanding issue is the unlicensed scrap dealer in unlicensed premises and, of course, the metal thieves themselves.
On the review of the offence of buying scrap metal for cash, five years is a long time to wait before it takes place. It should be done after a shorter period of, say, three years, which I am sure would provide ample data.
Baroness Hamwee
My Lords, I will not take the time of the House by sharing anecdotes and expressing gratitude; all that can be taken as read. It is late, but the House is a good deal fuller than it was earlier this evening. I share many concerns expressed about the licensing of sites and the separate licensing of dealers, and about the possibility that in a cashless system legal operators will not find sellers to sell to them. Mention was made of the fact that the offence will be purchasing rather than selling, although we heard about the Theft Act. Concern was expressed about whether the definition of scrap metal will extend to used domestic appliances, and about whether we will see an entirely new group of outlets.
Will the Minister say something about the timetable for implementation? Like others, I look forward to the wholesale reform of the system. However, clearly these provisions are designed to come into effect before that will happen. Will the government amendments that will find their way into the Bill come into effect immediately on enactment? I add to the point about the review and express concern about the speed with which we will see wider reform. If we are looking to review the provisions in five years, let us hope that they will have been overtaken long before then.
Lord Berkeley
My Lords, I congratulate my noble friend Lord Faulkner on taking this matter forward with so much pressure and commitment. My concern is that we seem to be discussing a parallel universe. The people in the BMRA, referred to by the noble Lord, Lord Roberts, do everything according to the book, and we are very grateful to them. However, I believe that there is the growing involvement of organised crime in this, as the noble Baroness, Lady Browning, said.
I have heard quite a lot of evidence about the way in which containers can disappear overseas without anyone knowing what is in them. It is not very difficult, especially if you do not live in a leafy part of Surrey or Buckinghamshire, to hide containers, and itinerant scrap merchants can get the metal into containers without anyone knowing very much. Perhaps the money comes from overseas. As many noble Lords said, the problem will grow. In the short term, the only solution is to support my noble friend’s amendment to get rid of this major loophole.
Lord Henley
My Lords, perhaps I may sum up the debate and address some of the points. Earlier I paid tribute to the noble Lord, Lord Faulkner, for all that he had done on the matter. I also pay tribute to my noble friend Lady Browning, who was the Minister who dealt with this before me. Only a few days before she unfortunately resigned and I moved to the Home Office, she summoned me and a host of other Ministers to the Home Office to discuss what we could do government-wide to address the problem. As a Defra Minister with a considerable interest in recycling and associated matters, I went along and said that it was possible that we might be able to do something through the Environment Agency. Soon after I left the meeting, my noble friend moved on and I found myself moving to the Home Office and in effect writing a letter from myself to myself to try to address these problems.
I am grateful for all that my noble friend did, and for the fact that she has now underlined some of the other problems that are beginning to appear in this matter. She referred to the problems with rare earths. I was recently in the north-west at a meeting dealing with truck theft. Truck theft is obviously very serious in terms of trucks and their contents being stolen, but certain bits of the trucks are also stolen to get the rare earths from, such as silencers, which can be of considerable value and whose theft can cause enormous problems.
I pay tribute to everything that my noble friend has done to highlight these problems. Similarly, I pay tribute to what the right reverend Prelate had to say and thank him for coming to see me to highlight the serious problems that the church is facing, particularly with the theft of lead roofs and with getting insurance on a great many church properties because of what is going on.
The noble Lord, Lord Campbell-Savours, asked me to comment on House of Lords reform. At this time of night, that is beyond my pay grade and I am not going to deal with it, but no doubt we will have further opportunities to discuss it in due course. He talked about the need for consolidated reform. I agree with him; I would like that in due course. I have made it clear that what we are doing at this stage is bringing forward the first stage of a package to get coherent reform in this area. It would not be right to delay the first few steps of that, as the noble Lord is suggesting, purely because we cannot get on to the other bits; we will get to those other bits in due course.
The noble Lord also said that the industry says that this will not work. Like the noble Lord, I have talked to the industry. I have addressed the BMRA; I have been to its annual parliamentary reception. The BMRA has made it quite clear to me that it welcomes virtually every aspect of reform. The only aspect that it is not terribly keen on is getting rid of cash. As someone else once said, “They would say that, wouldn’t they?”. I happen to think, as do most people in this House, that getting rid of cash from these transactions is a very useful thing to do and something that we ought to address.
The noble Lord made two other points that ought to be addressed. He asked about itinerants. I made it quite clear in my opening remarks that only itinerant collectors who are subject to an order under Section 3(1) of the Scrap Metal Dealers Act from their local authority, approved by the local chief officer of police, will be exempted. If they are also a scrap dealer and they have a yard, they will no longer fall within that definition of being an itinerant trader and therefore they will not be exempt. We are only talking about a very small number of people, who will be covered by the regulations that are in place at the moment. They are regulated.
Lord Campbell-Savours
The Minister seeks to reassure us, but what happens if over the next few years there is a noticeable shift in favour of itinerant collectors and the illegal trade? Will the Government come back to amend the legislation or will they review it?
Lord Henley
My Lords, we have made it quite clear that we are going to review it. We are going to keep this under control. The noble Lord is forgetting how few of these itinerant traders there are. They are not the people with the yards; they are people who are already regulated. The minute they have a yard they cease to qualify as an itinerant trader. It is as simple as that.
Lord Berkeley
Can the noble Lord say how many there are? He says that there are very few, but is it 10, 100 or 1,000? It would be very helpful if he could say.
Lord Henley
My Lords, I cannot give the noble Lord that figure without notice. I have no idea. I imagine that it might be possible, at disproportionate cost, to find out the number. All I am saying is that if they want to be an itinerant trader of that sort, they need a licence from their local authority and that has to be approved by the police. There is a very strict control on that particular aspect.
The noble Lord, Lord Campbell-Savours, rightly pointed to another problem—displacement. Could some of this go to Scotland? We are well aware of this problem. As the French discovered when they introduced a similar system, there was a danger that things would cross the border into Belgium and Germany. I have discussed this with colleagues in Northern Ireland and Scotland, although Scotland is more important, as there is a land border. Our colleagues in Scotland are well aware of what we are doing and are in full consultation with us. They will try to make sure that whatever they do keeps in line with what we wish to do.
The noble Lord is, for honourable reasons, merely seeking delay—delay that I am sure the BMRA would think was a worthy object to achieve. However, we do not think that it is right. We think that it is right to get rid of cash as soon as possible from this industry and that that will make a difference.
The last point that I want to address is that made by my noble friend Lady Hamwee about timing. I am afraid that I cannot give any categorical assurances to her about when and how we will get that further legislation. However, I make it clear, as my honourable friends in another place have done, that this is the first part of the package. We want to continue taking forward a coherent package to deal with all the other matters in the future, but I cannot give her any guarantee about timing.
Baroness Hamwee
My Lords, I did not expect my noble friend to be able to help me with regard to future legislation. I am sorry that I did not make myself clear. I was asking about commencement of these provisions, which will shortly find their way into the Bill and the Bill will no doubt shortly make its way on to the statute book. I am concerned about the current provisions.
Lord Henley
My Lords, these provisions will come into effect soon after Royal Assent, but I will check up on that and allow my noble friend to have the precise answer in due course.
Lord Faulkner of Worcester
My Lords, I am grateful to all noble Lords who have contributed to this fascinating debate. It is sad that it has taken place so late at night. Many other noble Lords would have liked to hear it, because it has been of a high quality.
I pay tribute to the noble Baroness, Lady Browning. I have seen some of the letters that she wrote when she was a Minister. I can confirm that, had she been there still, we would have had legislation along the lines of what we are discussing this evening. Her commitment to the subject is four square. I also pay tribute to the right reverend Prelate the Bishop of London, not only for what he said and his knowledge of the subject, but for his knowledge of “Steptoe and Son”. He may be showing his age, as are all of us who remember the programme, but “Steptoe and Son” has played a part in this debate and it is right that he mentioned it.
I do not agree with my noble friend Lord Campbell-Savours about delaying this aspect. I am with the Minister on that. The important thing is that we get on with the cashless system and that we do it quickly. I hope that it will be followed rapidly by legislation of a more substantive nature that will sort out the problem of the 1964 Act. The cash as part of this scrap-metal industry is enormous. The latest estimates are that, out of a £5 billion turnover, cash accounts for about £1 billion. Large quantities of this escape the Inland Revenue and Customs and Excise, and it is very much an undercover operation. It is in all our interests as citizens that this issue is dealt with.
I should like to pay tribute to ACPO and the British Transport Police for the initiatives that they have taken in attempting to address the problems. They have conducted a lot of raids on scrapyards and have come across a very large amount of stolen goods. The Minister referred to Operation Tornado in the north-east, which was very successful. I should like to pay tribute to him for his part in encouraging that and for putting himself around the country in order to find out what has been going on. I was a little disappointed by his defence of the itinerant collector’s exemption. I think that he said that we might be able to return to this at Third Reading. I will read what he said on that with some care, but I was encouraged by his commitment to bring forward further measures in due course.
Of course the Government’s amendment is superior to mine. If I had the number of lawyers working for me that the Government have available to them, I should have been able to produce an amendment at least as good as theirs. However, I should like to pay tribute to the Public Bill Office. It was not the Government who found the opportunity to put this amendment into this legislation; it was the Public Bill Office advising me that I was allowed to do it and the Government taking up the principle. That should go on the record.
The noble Lord, Lord Henley, is mastering the subject and is on top of it. I know that he will do what he can with his colleagues to make sure that we have the substantive legislation as soon as possible. I hope that he will have heard the voices around the Chamber tonight who want this to come quickly. Bearing in mind that the Government amendment is superior to mine, I beg leave to withdraw my amendment.
Baroness Miller of Chilthorne Domer
My Lords, I am sure that the House will find it convenient if we discuss all the amendments relating to Clause 136 in one group and, therefore, I intend to regroup them. I am sure that your Lordships will not need reminding that this matter was not discussed at all in Committee in the Commons and was discussed very late at night in your Lordships’ House, although it was not at a quarter to midnight.
Even given your Lordships’ stamina, I do not think that this is any way in which to deal with a major point of principle. It is no accident that squatting in an empty property has never before been criminalised in the UK. In its historic context, it has been seen as a humane response to the homeless seeking shelter. Any big change deserves more scrutiny than it has so far had in its entire passage through Parliament. Even though the hour is late, I hope that we will discuss the principle and, should Parliament decide on the principle that the Government are asking for, some of the practical measures that need to be further considered. That is what my amendments seek to address.
This is a cross-departmental matter. It will involve the Home Office because the police will have to spend a lot more time and resources. It will involve the Department for Communities and Local Government because local authorities will be involved in rehousing tens of thousands of people who will be made homeless. The MoJ will be involved because of all the people who will end up being criminalised. In addition, there is the entire housing issue, and I am sure that your Lordships will join me in wishing that this had come as part of a housing Bill.
We need to talk about a lot of issues, but I will turn directly to the practicality of my amendments. Amendment 157A was suggested by the charity for the homeless, Crisis. This is an issue about homelessness. If a building has been empty for more than 12 months, someone squatting in it should not be criminalised. I spoke to that issue at greater length in Committee, so I will leave it at that for now.
Amendments 157B and 157C deal with “residential”. The Bill defines “residential” very loosely. If a garage had a bed in it, even someone wandering into it and lying on that bed could criminalise themselves by that action. The drafting of the definition of residential is far too wide, and we should think about it.
Amendment 157D deals with the even more worrying issue of retrospectivity. No one knows exactly—I have asked Written Questions on this and the Government have admitted that they do not know—but there could be up to 50,000 or 60,000 people squatting at the moment. If they are all criminalised overnight, what will they do? Will they present themselves as homeless to local authorities? That is what retrospectivity means here. They will not have a choice: they will either have to stay where they are and risk becoming criminalised or they will have to present themselves as homeless, and that has tremendous implications.
I am grateful to the Minister and his colleague, Crispin Blunt, who talked through transition measures with me, but there is an awful lot more we need to discuss with regard to this. I cannot think of a single local authority which would be in a position at the moment to deal with anything like 200 homeless people presenting themselves on its doorstep, let alone thousands. This is a big issue which needs further discussion. As I have said, it obviously has cross-departmental implications.
In fact, it is practicality which worries me most. The Government could choose to bring this measure in over a considerably longer period because we cannot solve the problem extremely quickly. I am sure that in their hearts the Government do not want to criminalise a section of the population who, very often through no fault of their own, are homeless. The clause is about squatters, but if you described them as “vulnerable homeless”, most people’s reaction would be different. I know the debate in the press and in political circles has been coloured by perhaps a dozen cases that the press have quoted, but I remind your Lordships that they were of squatters who went into someone’s home and that people’s homes are already protected in legislation. There are thousands of people out there who are in empty properties because they are homeless and seeking shelter. The Government need to give further thought to how they are going to deal with so many people presenting themselves as homeless. I beg to move.
Baroness Lister of Burtersett
I am pleased to have added my name in support of the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. I pay tribute to her for her tenacity in making sure that this damaging clause is not completely overlooked. Both in Committee and today she has made a powerful case. I am only sorry that I was not able to be present in Committee.
I ask noble Lords to stop and think who we identify with because that will colour our attitudes to the clause and the amendments. In the Guardian last week a Ministry of Justice spokesman was quoted as it being,
“determined to stamp out this distressing practice which causes property owners untold misery and costs them thousands of pounds in eviction, repair and clean-up costs”.
I ask the Minister for his evidence of this. My point is that most of us are probably property owners—that is, we own our own homes—and the thought someone of breaking in and squatting in our homes while we are not there is, indeed, painful. In contrast, it is highly unlikely that any noble Lords have, either from choice or necessity because of homelessness, squatted. It is therefore not surprising that I detect a degree of unease about opposing this clause. However, a Government committed to evidence-based policy-making should not rely on misleading stereotypes.
This clause is not there to protect the homes of people like us. As we have heard, the law already does that. There was a letter in the Guardian last year from more than 160 leading housing lawyers, both academics and practitioners, who made clear that this clause is completely unnecessary. I understand that a similar position is taken by the Magistrates’ Association and the Metropolitan Police. If there is a problem, it is a problem of enforcement: the existing law needs to be enforced better. It is interesting that earlier today, in response to Amendment 145A, the Minister said that we do not need new legislation; we just need to enforce the existing legislation better.
On the question of stereotypes, the great majority of squatters are not doing it by choice. Research for Crisis by Sheffield Hallam University concludes:
“The evidence consistently points to squatting as a manifestation of housing need, and of inadequate support and provision for single homeless people”.
The Sheffield Hallam University Crisis report goes on to say that squatting,
“is a homelessness and welfare issue, not a criminal justice issue”.
I do not know about other noble Lords, but I find it quite distressing that I am finding more and more rough sleepers on the streets of London. It is reminding me of the 1980s. This is a welfare and homelessness issue that is growing.
In Committee, the Minister said that the Government wanted to send a clear message to existing and would-be squatters. To my mind, there is too much legislation about sending messages, especially when it is a message which involves criminalising a vulnerable group of people. I fear, however, that this is not about sending a message to squatters; this is about sending a message to the right-wing press, which has conducted a misleading and pernicious campaign on this matter, demonising homeless people in the process.
I would like us to send a message tonight—a message that we are willing to put ourselves in the shoes of homeless people for whom squatting and empty property offer a meagre lifeline and that we oppose this nasty little clause. Therefore, despite the lateness of the hour, if the noble Baroness, Lady Miller, chooses to test the opinion of the House on one of her amendments, I very much hope that noble Lords would be willing to support it.
Lord Howarth of Newport
My Lords, in some circumstances I might have hesitated to support the amendments that have been tabled by the noble Baroness, Lady Miller of Chilthorne Domer. However, in the circumstances in which we find ourselves—circumstances in which the Government have made drastic cuts to new provision of social housing and have introduced reforms to housing benefit which will cause significant numbers of people to lose their homes—I can only support the noble Baroness’s amendments. I do not think it is right to criminalise vulnerable homeless people, as she describes them, who seek to find a roof over their heads in empty properties in these circumstances.
Baroness Hamwee
My Lords, I would like to support my noble friend as well. I share her concerns about criminalisation. I agree so much with everything that has been said so far, so let me see if I can extract the questions from my notes. First, with regard to this new provision—as it appears it will be—as against Sections 6 and 7 of the Criminal Law Act 1977, how are decisions to be taken as to whether to prosecute under one of those sections or under what is currently Clause 136? Is government guidance going to be given or will it be provided by the CPS?
One of my noble friend’s amendments refers to the police and enforcement. Clearly, she is right to draw attention to that because it is a matter of enforcement. Her first amendment, relating to 12 months, strikes me as being quite modest given that the provisions in force, the Empty Dwellings Management Orders—they were brought in when there were nearly 700,000 empty homes but the figure may well be higher—provide a six-month exemption. A period of 12 months therefore seems quite modest.
I am also concerned about the term “residential”. In its bare form, is that term used elsewhere in legislation? The suggestion in the amendments is to link this to classes of use. The Bill provides simply for “residential” to be a building,
“designed or adapted … for use as a place to live”.
I am not sure what “live” means or what permanence that implies. I know of a number of buildings that are adapted as places to reside. I would include in those City offices where in the past I have had all-night meetings and I know that those had every facility one could possibly need. I daresay government departments have those as well.
Finally, I should like to pick up the references made to the vulnerability of people who find themselves in a position where they take the decision to squat. It is hardly a decision because it is the only course open to them aside from rough sleeping. It is not a desirable thing to do and I do not believe that most people who do this would not prefer conventional accommodation. One of the organisations which has been in touch with some noble Lords is called Squash, which is almost an acronym for Squatters’ Action for Secure Homes. That is such a telling name. What is being proposed will drive people who want secure homes into much more dangerous situations. I am delighted that my noble friend has put so much effort into addressing the issues raised by these clauses.
Lord Bach
My Lords, I congratulate the noble Baroness, Lady Miller, on raising yet again this completely unnecessary clause towards the end of this long Bill. It is well described as unjust, unnecessary and, indeed, unaffordable. I shall come to those in a moment. We all know that homelessness is on the rise. Since we last debated the issue in Committee, figures show that in London the rise in the number of those who are sleeping on the streets is higher than it was 12 months ago and 24 months ago. That surely must be of concern to us. Of course we must make a distinction between those who are lifestyle squatters and those who are forced into squatting. Some 40 per cent of homeless people live in squats because they prefer that to living on the street. This is about housing, as the noble Baroness said in moving the amendment. It should be treated as a housing issue, not a criminal justice issue.
The reason it does not have to be treated as a criminal justice issue is because it is quite clear that the current law is comprehensive and effective. According to the Law Society:
“The proposals in this consultation are based on misunderstandings by the media of the scale of the problem and a misunderstanding of the current law”.
The noble Baroness, Lady Hamwee, mentioned the Criminal Law Act 1977 and its powers to deal with this menace when it really is a menace. I ask the noble Baroness, Lady Northover: what is the need for a new criminal offence as far as this is concerned?
One of the justifiable criticisms of the last Government is that they too easily brought in new criminal offences—
Lord Bach
I am very glad to have the support of the noble Lord, Lord Oakeshott. But one of the principles of this Government, as I understood, was that it would not bring in this kind of new criminal legislation unless it was really necessary to do so. What, apart from a hostile media, makes it necessary for the Government to bring in this piece of new criminal legislation?
As far as unaffordability is concerned—and this is a matter I would like the noble Baroness to deal with—a methodology and use of government data endorsed, as I understand it, by a range of academics and legal practitioners has been used to calculate that this clause could cost £790 million to the taxpayer over the next five years. This is far in excess of the £350 million that the whole Bill is supposed to save, although some of us think that is a completely false figure, particularly as far as Part 1 is concerned.
The Government’s impact assessment estimates the costs as £25 million over five years. No attempt, it seems, has been made to account for the costs of rehousing and rehabilitating those who currently squat, and estimates of the costs to the criminal justice system are far too low. The organisation ALTER, which is Action for Land Taxation and Economic Reform, says:
“This change is contrary to the interests of UK taxpayers. It would provide a valuable state funded benefit to wealthy tax avoiders”.
One of the vice-presidents of ALTER is the present Deputy Prime Minister.
I am very grateful to the noble Baroness, Lady Miller, for her Amendment 157A, and if she were to ask to vote on it, even at this late hour, we would be happy to support it. We like it particularly because she has kindly taken notice of what was said in debate in Committee last time, and the six months is now 12 months, which seems to me, personally, to be a better timescale for the building being empty. However if, as may happen, she does not press this amendment to a vote, I hope she does not drop this issue. In fact, I am sure she will not, and will do her very best to make sure that it comes back before the Bill moves on and this ridiculous, silly clause becomes the law, and we start to criminalise the vulnerable and homeless, who should not be criminalised.
Baroness Northover
My Lords, my noble friend Lord McNally has explained in previous debates why Clause 136 is important to the Government. If somebody stole a car, a handbag or a phone, most people would expect there to be criminal consequences if the offender were caught. Yet, where squatters deprive a person of their residential property, some do not regard this as a crime. We do not accept that logic. The occupation of other people’s homes causes misery, and squatting in residential property should be a criminal offence.
Baroness Northover
I will come to that in a minute. As I say, occupation of other people’s homes causes misery, and squatting in residential property should be a criminal offence just as the theft of a car would be.
Nor do we agree that squatting is a reasonable answer to homelessness, which is the key point here. In fact it is often dangerous and bad for health, and ideally people should be in mainstream services. We share my noble friend’s concern about homelessness, but squatting is not the answer.
We are therefore proposing a balanced approach: clamping down on the squatting in residential buildings on the one hand, while ensuring that genuinely vulnerable people who might be at risk of squatting or rough sleeping are given the support that they need to find alternative forms of accommodation. We are investing £400 million in homelessness prevention over the next four years, with the homelessness grant being maintained at 2010-11 levels. We also announced in December the first ever £20 million fund to prevent single homelessness. That will help to ensure that single homeless people get the help and advice that they need, and do not have to resort to sleeping on the streets or in squats.
We have also brought together eight government departments through the Ministerial Working Group on Homelessness to tackle the complex causes of homelessness. The group published its first report, Vision to End Rough Sleeping, in July 2011, which sets out joint commitments to tackle homelessness. The working group will publish its second report on preventing homelessness later this spring.
We are also tackling the number of empty homes that often attract anti-social behaviour, vandalism and squatting. We recently announced £70 million of funding to bring more than 5,600 homes back into use as affordable housing. We will announce a further £30 million shortly, including funding for community and voluntary groups.
My noble friend’s Amendment 157A would exempt squatters who occupied buildings that had been empty for a year or more. We believe that that is wrong in principle. We would not accept that after a year of non-use it would be defensible to deprive owners of their other assets such as cars or phones. Moreover, there are many legitimate reasons why a residential building might be left empty for a year or more—for example, when a property is inherited following a death and probate takes some time to be sorted out.
The amendment would also make the offence more difficult to enforce as it would enable squatters facing a charge to argue that the property had been empty for years even if they had no idea whether that was true. Instead of legal arguments turning on the true issue at stake—the criminal occupation of somebody else’s residence—this would muddy the water and put the focus back on the police or the home owner to show how long it had been empty for.
Amendment 157B would remove the definition of “building”, leaving it unclear what “building” in the offence covers and leading to legal arguments on this matter. Amendment 157C would delete the definition of “residential” in Clause 136 and replace it with a new definition. The only residential buildings which would be covered by the offence as a result of the new definition would be those which are used for the purposes set out in class categories C3 and C4 of the Town and Country Planning (Use Classes) Order 1987.
The amendments would introduce confusion and complexity. The advantage of the existing clause is that any structure—permanent or temporary, moveable or immoveable—is covered by the offence if it has been designed or adapted for use as a place to live.
My noble friend’s Amendment 157D would further weaken the offence by exempting squatters who entered a building prior to commencement of the offence. This would clearly not be in the interests of home owners. It would not make sense if an offender who entered a property the day before commencement, for example, could not be convicted if they continued to live in the premises against the wishes of the property owner after the offence commenced.
Amendment 160B suggests that the Secretary of State should report to Parliament prior to commencement on likely costs of the new offence to the criminal justice system and local authorities. We published an impact assessment which included costs to the criminal justice system. The impact assessment also recognised that there might be an impact on local authorities if squatters approached them for support. Requiring the Secretary of State to report further on these issues prior to commencement is therefore not necessary.
I know that when my noble friend met the Parliamentary Under-Secretary of State, Crispin Blunt, one of her main fears was that there would be a surge in applications for social housing in the days following commencement. We have taken my noble friend’s point on board. I can assure her that through the Ministerial Working Group on Homelessness, the Department for Communities and Local Government, the Ministry of Justice and the Home Office will work together to ensure that any local enforcement against squatting is carried out in partnership with local homelessness services to mitigate against an associated increase in rough sleeping.
We will also liaise with local authorities in advance of commencement to ensure that they are aware of the new offence if squatters approach them for help and to remind them of their duties towards homeless people. We will encourage authorities to make use of the good practice advice letter and an additional £20 million of funding to prevent single homelessness, both of which have been developed recently with input from Crisis.
My noble friend Lady Hamwee and the noble Lord, Lord Bach, asked about the current law and why this was not sustained by what was already there. Why the need for a new offence? The current law can be improved so that it does more to deter squatters from entering and occupying a residential building without permission in the first place. We believe that there should be a specific criminal offence that protects people from those who squat in their residential buildings and that this offence should not be limited to cases where a squatter refuses to leave when required to do so. In addition, the offence under Section 7 of the Criminal Law Act 1977 does not protect residential property owners who are not displaced occupiers or protected intending occupiers. Currently, they may need to seek repossession of their properties in the civil courts, which can be time-consuming and expensive. That is why we feel that the law needs to be changed.
Baroness Miller of Chilthorne Domer
My Lords, I thank all noble Lords who have not only stayed but spoken so passionately that it makes up in quality for what we did not have in numbers. Several other noble Lords who were not able to stay have expressed their sadness about that. The noble Baroness, Lady Lister, spoke extremely powerfully. In one way I am glad she was not able to speak in Committee because it gave us the chance to hear some of the arguments lying at the very basis of this issue. It is important to remember, as she outlined, that this is about homeless people. I was disappointed by the Minister’s reply when she kept emphasising the occupation of someone else’s residence or home. These are not residences or homes, by and large; they are simply empty properties. This is the basis of the misunderstanding and it is what I have tried to get to the bottom of.
I am grateful to the noble Lord, Lord Howarth, for his support and to my noble friend Lady Hamwee who, as always, asked some very incisive questions, some of which I do not feel were fully answered tonight. The noble Lord, Lord Bach, is quite right when he says that I took his advice on extending the six months suggested by Crisis to 12 months, because that puts it beyond doubt that the property is empty. In fact, there are definitions, as my noble friend Lady Hamwee said, of an empty property, and my amendment is more modest than those.
I have not heard anything new from the Minister tonight about the transition measures. She mentioned that local authorities would be approached by those being criminalised, but I wonder whether she is aware—
Baroness Northover
I had a long list of other measures that have been taken, but I thought that the best thing might be to write to the noble Baroness with that rather than detain people too long tonight.
Baroness Miller of Chilthorne Domer
I am grateful to the Minister for that suggestion. Is she saying that the issue is still live and can therefore come back on Third Reading?
Baroness Northover
As I said to the noble Baroness, I am very happy to arrange a meeting to take this forward. Then we will have to see where we are at that point.
Baroness Miller of Chilthorne Domer
Can she give me an assurance that it will be possible to come back on this at Third Reading on the basis of that? Can the Minister clarify what she is saying? She says that she has a list of other measures, but we will not know what they are this evening because she is not reading them out. We will need to know what they are before we decide what to do. She will need to go through the list.
Baroness Northover
My understanding is that having left it open it is still open.
Baroness Miller of Chilthorne Domer
I am grateful to the Minister for clarifying the fact that it is still open. Therefore, it is free for me to bring the matter back before your Lordships at Third Reading.
Lord Bach
I do not think that that is quite what the Minister said. She said that it was open—I do not think that she said that it would be open for the noble Baroness to bring it back at Third Reading. Perhaps the noble Baroness should ask her again and see what her answer is.
Baroness Miller of Chilthorne Domer
I would be pleased to ask her again, because it is very important before I make a decision on what to do with this amendment.
Baroness Northover
My noble friend says that we have discussed the possibility of meeting and considering this further. I gave her the assurance that this was still open because that was what I was informed, and I reiterate that assurance.
Baroness Miller of Chilthorne Domer
I am grateful to my noble friend. I suspect that that is as far as we can go this evening. I have to say on the record that if I find that the agreement does not hold, I shall have to consider my position very carefully.
I still want to put on record the point that I was about to make because it is very pertinent. The Government should not be under any illusion that local authorities will be in a position to help those who present themselves to them as homeless. I quote from the Crisis report:
“Most are also recognised as homeless by the LA (78 per cent) but few are entitled to accommodation under the terms of the homelessness legislation, typically because they are not considered ‘priority need’, or are deemed ‘intentionally homeless’”.
That leaves thousands of young and middle-aged people in this country potentially being criminalised. We have not heard what measures the Government will put in place tonight to mitigate that. I am in some doubt as to whether we will be able to return to this issue, but I am sure that when the House reads this debate it will be the will of the House that we return to it. In the mean time, I beg leave to withdraw the amendment.
Lord McNally
“Scrap metal dealing: increase in penalties for existing offences
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) For the following words (which have effect as references to a fine not exceeding level 3 on the standard scale) substitute in each case “a fine not exceeding level 5 on the standard scale”—
(a) in section 1(7) (dealer failing to register) the words from “a fine” to the end;(b) in section 2(6) (dealer failing to record dealings) the words from “a fine” to the end;(c) in section 3(4) (itinerant collector failing to keep receipts) the words from “a fine” to the end;(d) in section 4(4) (convicted dealer failing to meet additional requirements) the same words before “and the court”.(3) For the following words (which have effect as references to a fine not exceeding level 1 on the standard scale) substitute in each case “a fine not exceeding level 3 on the standard scale”—
(a) in section 1(8) (dealer failing to give notice of cessation of business) the words from “a fine” to the end; (b) in section 5(1) (dealer acquiring metal from a person under 16) the same words before the proviso;(c) in section 5(2) (selling metal to a dealer under a false name or address) the words from “a fine” to the end;(d) in section 6(5) (obstructing entry and inspection) the words from “a fine” to the end.”
Lord McNally
“Offence of buying scrap metal for cash etc
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) After section 3 insert—
“3A Offence of buying scrap metal for cash etc
(1) A scrap metal dealer must not pay for scrap metal except—
(a) by a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable, or(b) by an electronic transfer of funds (authorised by credit or debit card or otherwise). (2) The Secretary of State may by order amend subsection (1) to permit other methods of payment.
(3) In this section paying includes paying in kind (with goods or services).
(4) If a scrap metal dealer pays for scrap metal in breach of subsection (1), each of the following is guilty of an offence—
(a) the scrap metal dealer;(b) a person who makes the payment acting for the dealer;(c) a manager who fails to take reasonable steps to prevent the payment being made in breach of subsection (1).(5) In subsection (4)(c) “manager” means a person who works in the carrying on of the dealer’s business as a scrap metal dealer in a capacity, whether paid or unpaid, which authorises the person to prevent the payment being made in breach of subsection (1).
(6) Subsection (1) does not apply if—
(a) the payment is made in the carrying on of the dealer’s business as a scrap metal dealer as part of the business of an itinerant collector, and(b) at the time of the payment an order under section 3(1) is in force in relation to the dealer.(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(8) An order under subsection (2) is to be made by statutory instrument.
(9) A statutory instrument containing an order under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
(3) Section 2 (records of dealings) is amended as follows.
(4) After subsection (2)(d) insert—
“(da) where paragraph (d) applies, any part of the price that is unpaid at the time when the entry is to be made;”.(5) In subsection (2)(e) for “the last preceding paragraph” substitute “paragraph (d)”.
(6) After subsection (4) insert—
“(4A) If a scrap metal dealer pays at any time for scrap metal falling within subsection (1)(a)—
(a) the dealer must keep, with the book containing the entry relating to receipt of the scrap metal, a copy of the cheque (if the payment was by cheque), or any receipt identifying the transfer (if the payment was by electronic transfer and such a receipt was obtained), and(b) the particulars required by this section to be entered include those listed in subsection (4B). (4B) The particulars are—
(a) the full name and address of any person who makes the payment acting for the dealer;(b) the full name and address of the person to whom the payment is made;(c) in the case of an electronic transfer where no receipt identifying the transfer was obtained, particulars identifying the transfer.(4C) Anything kept by virtue of subsection (4A)(a) must be marked so as to identify the scrap metal by reference to the entry relating to receipt of the metal.
(4D) An entry in pursuance of subsection (4A)(b)—
(a) must be made immediately after the payment is made, and(b) if not made at the same time as the entry relating to receipt of the scrap metal, must identify the metal by reference to that entry.”(7) In subsection (5), after “this section and” insert “the book and anything required by subsection (4A)(a) to be kept with it”.
(8) Section 3 (special provisions as to records in certain cases) is amended as follows.
(9) In subsection (5)(d), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(10) In subsection (6)(a)—
(a) after “books” insert “, and the obligation imposed by subsection (4A)(a) of that section to keep anything with a book,”;(b) after “the like particulars” insert “, and to keeping the same things,”;(c) for “and (3)” substitute “, (3) and (4A) to (4D)”.(11) In subsection (6)(c), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(12) In section 4(1) (power for court to impose additional requirements on convicted dealers)—
(a) omit “or” at the end of paragraph (a), and(b) after that paragraph insert—“(aa) is convicted of an offence under section 3A, or”.(13) Section 6 (rights of entry and inspection) is amended as follows.
(14) After subsection (3) insert—
“(3A) Whether or not a place is one to which a constable has a right of entry in accordance with subsection (1), a justice of the peace may issue a warrant described in subsection (3B) if satisfied by information on oath that there are reasonable grounds for believing that the place—
(a) is a scrap metal store where scrap metal paid for contrary to section 3A is or has been received or kept, or(b) is a place to which admission is reasonably required in order to ascertain whether that section is being complied with.(3B) The warrant is a warrant signed by the justice issuing it which specifies the place concerned and authorises a constable to enter the place, if need be by force, at any time within one month from the date of the warrant.
(3C) A constable authorised to enter a place by a warrant granted under subsection (3A) has a right—
(a) to inspect that place;(b) to require production of, and to inspect, any scrap metal kept at that place;(c) to require production of and to inspect any book which the dealer is required by this Act to keep at that place and any copy or receipt required to be kept with the book, or, as the case may be, any receipt which the dealer is required to keep as mentioned in section 3(1)(b), and to take copies of the book, copy or receipt;(d) to require production of and to inspect any other record kept at that place relating to payment for scrap metal, and to take copies of the record.” (15) In subsection (4) for “the last preceding subsection” substitute “subsection (3) or (3A)”.”
Lord McNally
“Review of offence of buying scrap metal for cash etc
(1) Before the end of 5 years beginning with the day on which section (Offence of buying scrap metal for cash etc)(2) comes into force, the Secretary of State must—
(a) carry out a review of the offence created by that subsection, and(b) publish a report of the conclusions of the review. (2) The report must in particular—
(a) set out the objectives intended to be achieved by creating the offence,(b) assess the extent to which those objectives have been achieved, and(c) assess whether it is appropriate to retain the offence to achieve those objectives.”
Lord McNally
Lord McNally
My Lords, at this hour of the night I would like to move these government amendments formally but I do not think that I can. Amendment 159 would bring Clause 113 into force on the date of Royal Assent. Clause 113 provides a power for the Secretary of State to remove from the United Kingdom foreign national prisoners serving indeterminate sentences once they have served the minimum term, or tariff, set by the sentencing court. This will be known as the tariff expired removal scheme. By commencing this provision on Royal Assent, it will be possible to begin the process of removals under the scheme from that date. There are a number of IPP and life sentence prisoners with deportation orders served against them who are already past their tariff expiry date. The Government would like to be able to start considering these prisoners for removal under the scheme at the earliest opportunity.
The amendments to Clauses 141 and 142 set out the territorial extent of the Bill. The amendments are to tidy up the clauses in the light of changes made to the Bill during its progress through Parliament and to ensure that provisions are as clear as possible. Amendments 163 and 164 amend the Long Title of the Bill to include the references to the Government’s amendments on scrap metal and magistrates’ courts fines. This is in line with the general rule on making amendments to the Long Title of a Bill to reflect amendments which have been made to the Bill. I beg to move.
Lord McNally
“(1A) Section (Piloting of alcohol abstinence and monitoring requirements) comes into force on the day on which this Act is passed.”
“( ) The following provisions come into force on the day on which this Act is passed—
(a) section 113, and(b) this Part.”
Lord McNally
“(2A) This section does not apply to section (Alcohol abstinence and monitoring requirement) (but see section (Piloting of alcohol abstinence and monitoring requirements)).”
Lord McNally
“(1) Parts 1 to 3 of this Act extend to England and Wales only, subject to subsections (2) to (8).
(2) Sections 122 and 123(1) extend to England and Wales and Scotland.”
“(4) In Chapter 8 of Part 3—
(a) section 131 extends to England and Wales only,(b) sections 132 and 133 extend to England and Wales, Scotland and Northern Ireland,(c) paragraphs 1 to 11 of Schedule 24 extend to England and Wales only,(d) paragraphs 12 to 17 of that Schedule extend to Scotland only, and(e) Part 2 of that Schedule extends to England and Wales only. (5) An amendment, repeal or revocation made by this Act has the same extent as the relevant part of the Act or instrument amended, repealed or revoked (ignoring extent by virtue of an Order in Council), subject to subsections (2), (4), (6) and (7).
(6) Subsection (5) applies to section 137(1) to (5) only so far as the provisions amended extend to England and Wales or apply in relation to service offences.
(7) Subsection (5) does not apply to paragraphs 15 and 18 of Schedule 7, which extend to England and Wales only.
(8) The following have the same extent as the amendments, modifications, enactments, instruments or provisions to which they relate—
(a) section 65(7),(b) section 75(11) and (12),(c) section 127(4), (5) and (7),(d) section 137(6), (e) Part 4 of Schedule 7 and Part 3 of Schedule 8, and(f) Schedule 15.(9) Sections 138, 139, 140, this section and section 143 extend to England and Wales, Scotland and Northern Ireland.
(10) But, in so far as sections 138 and 140 confer power to make provision modifying or otherwise relating to a provision of, or made under or applied by, the Armed Forces Act 2006, they have the same extent as that Act (ignoring extent by virtue of an Order in Council).”
Lord McNally
“( ) The powers conferred by sections 177, 178 and 222 of the Extradition Act 2003 (powers to apply provisions to extradition to or from British overseas territories and to extend to Channel Islands and Isle of Man) are exercisable in relation to any amendment of that Act that is made by or under this Act.”
Lord Ramsbotham
Lord Ramsbotham
My Lords, unfortunately I saw the groupings list yesterday too late, because of the memorable events surrounding the Diamond Jubilee, to be able to do anything about the fact that this amendment had been grouped with those we discussed earlier about restorative justice. I beg the leave of the House to move this amendment at this late hour.
Currently, the Ministry of Justice is embarked on what the Secretary of State has called the “rehabilitation revolution”. Many of us who have been trying for years to suggest ways in which the criminal justice system could better protect the public by reducing the reconviction rate have welcomed this initiative and seen this Bill as an opportunity to help the process by moving amendments, many based on practical experience, which could improve the revolution’s chance of success. So far, however, I have to admit to a double disappointment. The first was that “rehabilitation” disappeared from the original Title. The second was that so many of our suggestions have been resisted and dismissed out of hand, including my proposal that the original Title should be restored.
Since Committee, two things have happened. First, I have been thinking through the relevance of “desistance”, which means abstention from crime by those who previously had engaged in a sustained pattern of offending. I know it is said that the most effective crime-fighting tool is a 30th birthday, but that is not to be taken as justification for doing nothing about rehabilitation until that day. Research with successful desisters shows that they believe that particular staff members who identify what they could do are more valuable than any particular intervention, which demonstrates the importance of motivating and supporting prison and probation staffs and private and voluntary sector organisations that work at the rehabilitation of offenders.
Baroness Howe of Idlicote
My Lords, I very much support this amendment and have put my name to it. It is a great shame that we could not find a way to debate this issue right at the beginning, before we started work on the detailed and different parts of this hybrid Bill. Indeed, many of the debates on today’s amendments—I am not talking about the last two or three, which seem quite beyond the Bill in many ways—illustrate exactly why this amendment is so relevant and important to the Bill. For example, plans to meet women prisoners’ different needs, the debate on restorative justice, better training and rehabilitation plans and post-prison support for young offenders: all of these were about rehabilitation. Indeed, the background to all the work that the Minister has so often talked about is about rehabilitation.
It is quite absurd to be debating what the Title of the Bill should be as we reach the very last pages of the Bill and the very early hour of the following day. If the Minister could accept the amendment, even at this stage, success would have been achieved, giving those who will use the Bill a much better understanding of what it is really about. Above all, it would not have cost the Government one single penny and, over and above that, I am quite certain that the Minister believes—as we certainly do—that in the long run it will save a great deal. I very much hope that he is in a giving mood on this amendment.
Lord McNally
My Lords, I have been wondering whether I dare quote poetry at this hour, but I think noble Lords deserve it. Whenever I hear the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Howe, and the noble Lord, Lord Judd, who I am sure is with us spiritually, I am reminded of these lines from the Rubaiyat of Omar Khayyam:
“Ah Love! could thou and I with Fate conspire
To grasp this sorry Scheme of Things entire,
Would not we shatter it to bits—and then
Re-mould it nearer to the Heart’s Desire!”
Certainly, as I have said before, there is no lack of sympathy with the promotion of the concept of rehabilitation. Indeed, as I have also said before, I believe that those who argue the case for rehabilitation are doing more for victims and more to reduce crime than those to whom the noble Lord, Lord Pannick, referred earlier today as the “throw away the key brigade”. There is no argument between us. The Ministry of Justice believes in rehabilitation, and a large range of our policies are geared to rehabilitation. However, I think most people will look beyond the Short Title of the Bill and judge the Government by their intentions and performance. As many noble Lords have recognised, the Bill contains key measures for the youth and adult criminal justice systems that will contribute to the rehabilitation of offenders. Therefore, although I would very much like to accept this amendment in many ways, I am afraid that the noble Lord, Lord Ramsbotham, is right—I must simply salute, get on with the job and urge him to withdraw the amendment.
Lord Ramsbotham
My Lords, like the Minister, I have to salute and move on. I am very glad for what he said about the essence of rehabilitation because that is hugely important. Even at this late hour, I make no apologies for moving the amendment because it is very important that all that has been said by many noble Lords during the passage of the Bill reflects the heart of what we are trying to do: namely, to secure the rehabilitation of those who end up in the criminal justice system. However, given the reassurance that everyone is trying to do all they can, and given the lateness of the hour, I beg leave to withdraw the amendment.
Lord McNally