Lord Marks of Henley-on-Thames
My Lords, before my noble friend replies, having been asked direct questions, perhaps I may reply briefly. I envisage that there would be a wide range of special reasons. As the noble Lord, Lord Ponsonby, suggested, they would include a history of breach of previous supervision requirements. However they might also encompass areas of special risk to do with the particular offender. The shortcoming of the Criminal Justice Act 2003 at which this amendment is aimed is that under Section 152 only the seriousness of the offences is taken into account. There may well be reasons to do with the offender that could justify a custodial sentence, but the point of the amendment is to make it quite clear that in the absence of such special reasons, whether they are to do with history, special risk or other reasons, the presumption in favour of a community sentence should apply.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I have found this to be an extremely helpful debate, and as the movers have indicated that it is a probing amendment, I will take it away to consider, but in my reply I will make it clear that we do not think the amendment is necessary at this moment.
I understand the points that the noble and learned Lord, Lord Woolf, has quoted, and that my noble friend Lord Dholakia mentioned, that the Bill might encourage judges to go for the best of both worlds by passing a short sentence that will immediately qualify for the 12 months of rehabilitation. I certainly share my noble friend Lord Dholakia’s view that short sentences are too short to rehabilitate, but just long enough to disrupt, the life of the person sent to prison and introduce them, perhaps for the first time, to all the bad influences that can be found in a prison. On the other hand, as the noble Lord, Lord Williamson, rightly recognised, we face media and—to a certain extent—public opinion that sees community sentences as somehow softer than prison sentences. Part of the aim of our reforms is to position community sentencing and the rehabilitation process that goes with it more positively in the eyes of the public, so that they have greater confidence in it.
I was grateful for the words of the noble Lord, Lord Ponsonby of Shulbrede, in his intervention, because there are two things that become one. He put firmly on the record that in his experience, judges will not be tempted to go down the road that my noble friends fear. I think that he has said before—certainly other magistrates have—that sometimes for a repeat offender or somebody whose circumstances make setting them back into the community even more dangerous to themselves and the community, a short custodial sentence can be of benefit, so the idea of ruling them out entirely is not the way forward.
As my noble friend has explained, Amendment 24B would create a new clause in an attempt to bolster what is often referred to as the “custodial threshold”: that is, the test set out in Section 152(2) of the Criminal Justice Act 2003, to which my noble friend referred, with which all courts must comply when imposing a custodial sentence.
It is perhaps worth noting again what Section 152 says:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or 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.”
It is an onerous test. It means that a court cannot impose a custodial sentence unless the offence was so serious that a fine or community sentence will not do; in fact, it cannot be justified. It is also worth noting that this test has to be read in conjunction with Section 153 of the 2003 Act. That requires a court when imposing a custodial sentence to ensure that the sentence is for the shortest term commensurate with the seriousness of the offence.
My noble friend’s amendment would add to the existing provisions a requirement, where a court intended to impose a custodial sentence of less than 12 months, that there be “special reasons” which justify the custodial sentence of less than 12 months. We have already heard in debate that magistrates and judges do not believe that they impose custodial sentences other than as a last resort. It is natural to ask what are these special reasons or circumstances that are not covered by the original test. Could the special reasons relate to a history of previous convictions? If so, the current custodial threshold test already applies because, under Section 143 of the 2003 Act, a court must consider relevant and recent convictions as an aggravating factor which makes the offence more serious. It is seriousness that is the key driver in determining the nature of the sentence and meeting the custodial threshold test.
I suggest to my noble friend that the special reasons he may have in mind must already be considered when the court decides on the sentence and whether a custodial sentence is merited under Section 152. So although of course I appreciate what my noble friend is attempting to achieve—that is, a statutory presumption against sentences of less than 12 months—I am not convinced that the amendment would actually do what is intended.
Let me make the point that the Government do not intend or expect that sentencers will change their current behaviour in any significant way in response to the provisions in the Bill. We do not expect to see an increase in the number of short custodial sentences. Offenders who do not meet the custodial threshold should receive community orders or fines. I hope that noble Lords and noble and learned Lords who have judicial experience will agree that it would be wrong for any judge, and contrary to the provisions of the existing law, if a sentencer decided to “up-tariff” an offender into custody so that they could receive 12 months of supervision.
I should also deal briefly with the second part of the amendment, which would require the court to give an explanation of the special reasons that merited a custodial sentence of less than 12 months. I point out to my noble friend that the current law already requires all courts imposing any sentence of any length to give reasons for the sentence passed. That is contained in Section 174 of the 2003 Act. Invariably, a sentencer will begin their explanation of a custodial sentence by setting out why the offence is so serious that it merits a custodial term. The further provision is, I suggest, unnecessary. I understand the good intentions behind the amendment. No one in this House wants to see short custodial sentences passed for offences that do not justify them, but that is why we have the current threshold test and a right of appeal against sentence.
We need to provide sentencers with a range of sentences in which they can have confidence. That is why we made the changes to community orders in the Crime and Courts Act 2013. We have to stop offenders reoffending to such a degree that they end up having to be considered for short custodial sentences in the first place. We also have to realise that some offenders will merit short custodial sentences. We need to focus on making those sentences more effective at rehabilitating offenders so that not only are they imposed as a last resort, they should be the last sentence that the offender receives.
I acknowledge the efforts of my noble friend on this amendment, but, although I recognise his intention, I ask him to withdraw it. Given the spirit in which it has been moved, I will discuss the matter further with the Lord Chancellor and others, but I suspect that our position as I have just set out will remain unchanged.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to my noble friend for that detailed and helpful response, and for the indication that he will consider the matter with us. The question really is whether the existing safeguards are sufficient in the light of the additional supervision requirement and whether there is ground for the concern expressed by the noble Lord, Lord Dholakia, and the noble and learned Lord, Lord Woolf, that there might be a temptation for sentencers to err. In that spirit, I withdraw the amendment at this stage.
Lord Beecham
My Lords, this amendment is the identical twin of Amendment 7A, which I moved last week in relation to Clause 2. As I said then, the effect would be to require the necessary supervision to be carried out either by a directly employed public service provider or by a person commissioned by such a public sector provider. I do not think it is necessary to rehearse the arguments again. I suppose that it is unlikely that the ministerial sinner will be in a repentant mood this afternoon, but I live in hope and I beg to move.
Lord McNally
My Lords, I am like St Augustine; I want to give up sin, but not yet. I will deal briefly with Amendment 24C. It would mean that the responsible officer for the supervision of offenders subject to community orders and suspended sentence orders would have to be a public sector probation provider. As the noble Lord, Lord Beecham, said, this is essentially the same amendment applied to community orders as the noble Lord tabled on the first day of Committee for supervision of custodial sentences. As I said then, the Government are committed to providing new supervision for those released from short custodial sentences. To achieve this aim, we, as a responsible Government, have to be able to afford this additional supervision. To do that, we need to reduce the current costs of dealing with offenders.
We also want to encourage innovation among providers of probation services dealing with this group of offenders serving community sentences and suspended sentences. It is important to ensure that we continue to improve the reoffending rates of this group of offenders, as well as of those serving custodial terms. Paying providers in full only where they are successful at reducing reoffending will not only make savings; it will drive down our reoffending rates. I hope that the noble Lord, Lord Beecham, will withdraw his amendment now that I have clarified what the Government’s intentions are.
Lord Beecham
My Lords, I thank the noble Lord for the repetition of the stance that he took the other night. I beg leave to withdraw the amendment.
Baroness Hamwee
Not having come with a long speech, I want to register my support and that of my noble friends on these Benches for these amendments and, as the noble Lord, Lord Beecham said, the growing support for the concept of restorative justice. The more I hear about that, the more it seems a very important part of rehabilitation. It has many aspects and one of those fits neatly within the thrust of this Bill and in the new Section 200A. Among the things it can achieve is redirecting offenders who can be described, as many noble Lords have done at previous stages, as having chaotic lives. Being able to put the chaos of one’s life into the perspective that this kind of activity can help achieve is an important objective of rehabilitation.
Lord McNally
My Lords, first, I pay tribute to the noble and learned Lord, Lord Woolf, for the very long campaign he has fought to put restorative justice on a statutory footing. Although I am sure he is right to pay tribute to and thank the Opposition for their support, it is also worth pointing out that it was this Government who actually did that. In the battle to do so, I pay tribute to the former Prisons Minister, Crispin Blunt, who joined battle with me within the department to make sure that we got the first foothold as far as restorative justice is concerned.
I am glad that we have the eagle eye of the noble Lord, Lord Beecham. Of course, reparative and restorative justice are not the same thing. I fully associate myself with the points that the noble Lord made about the value of reparative justice. It can be very significant, in not only what it does but also getting the confidence of the community—the point made by the noble and learned Lord, Lord Woolf. The community sees a derelict site cleaned up or some piece of community work restored as part of reparative justice and has confidence that it is worth while.
I also fully agree with the noble and learned Lord, Lord Woolf, about what we are trying to do in this Bill. We are doing a little smoke and mirrors with the money we have available—I freely confess that—but even if we had all the money we wanted, it would still require that change in culture to which the noble and learned Lord referred.
I hope that we can make this work and carry it through. I am not sure whether we will ever carry the great British press with us. My office always gets very perturbed when I attack the British press. I merely observe that the regular comments on this area of policy always leave me in despair, not about humanity but about journalists.
Lord McNally
My Lords, this has been an extremely useful debate, fully living up to the reputation of this House for taking an ongoing interest in this matter. I thank the noble and learned Lord, Lord Woolf, in particular, for bringing it forward. We have had a very useful debate, with a number of interesting points being raised. We already realise that if the problems of women within our criminal justice system could be solved by reports, or even clauses in a Bill, they would have been solved a long time ago.
Perhaps part of the problem, going back to what the noble and learned Lord, Lord Woolf, mentioned earlier, is that we also need a change in culture and general approach. We have made painfully slow progress in this area. Too many women are in our prisons. It is palpably obvious that women have different problems and needs and, as the noble Baroness, Lady Linklater, has reminded us, the collateral damage from the imprisonment of women is substantial. Nothing divides us on this.
I was pleased that the noble Baroness, Lady Corston, made her contribution. I regret that her assessment is that we are going back 10 years. I do not think that we are. That is not the direction of travel. However, we face difficulties. She knows that her report was not implemented in full by her Government because of some of the financial constraints that face this Government. I have never moved away from the fact that her report is a template for action and we will re-examine it in the light of what we are trying to do with these reforms.
Of course, one of the key factors of these reforms is that we are picking up the challenge of dealing with sentences of under 12 months. As has been pointed out on a number of occasions, it is that cohort, if that is the new in-word to use, that has the greatest preponderance of women offenders. So, in that respect, this legislation gives us the opportunity to deal with and respond to the challenges posed by women offenders in a positive way.
A number of points were raised during the debate. The noble Baroness, Lady Howe, mentioned the review that is under way of the women’s estate. The Justice Secretary is conscious that female offenders have particular needs and that the custodial female estate should be organised as effectively as possible to meet gender-specific requirements while delivering best value to the public. That review is expected to report by the end of the summer. I do not know what that means. I was told today that summer has not yet started but it will report by the end of the summer.
Of course, although the implementation of the Corston review has not been complete, the National Offender Management Service accepted 40 of the 43 recommendations. Progress has been impressive, including ending the mandatory full searching of women in reception and moving to a risk-based approach; embedding gender-specific standards for women in all areas of prison regimes; encouraging greater use of specialist accommodation in the community for offenders who pose a high risk of harm; and introducing the women awareness staff programme for those in the criminal justice system and the community who work with female offenders. So, as I say, I do not believe that it is entirely negative.
The noble Lord, Lord Beecham, made a valid point on resettlement accommodation for women. We will look at it and think about it. I agree that the issue poses real problems.
Interestingly—I lift the veil on the workings of the MoJ—we had an interesting discussion this morning when my noble friend Lord Ahmad made exactly the point that the noble Lord, Lord Beecham, made about whether there is a lacuna in terms of black and ethnic minorities. If we had had the common sense to listen to my noble friend this morning, I would have had a full answer this afternoon. However, it is a point that should be looked at.
The approach of the Bill, which has given rise to some of the issues in the debate today, is, basically, let a thousand flowers bloom. Let us see what comes back in offers, ideas and approaches and consider how we can reshape the service to it. Again lifting the veil on the MoJ, I have argued at times whether the contracts should be women-specific—and, who knows, that might happen—but the reason that that is not there at the beginning is to encourage the widest possible contributions to the debate.
I am sure that no one in the House disagrees with the principle underlying the amendment. As the noble and learned Lord knows, the Government fully share his belief that service providers should take a different approach where there is a need to differentiate provision for female offenders. Where the challenges are different, our response should likewise be different. The Government’s commitment to ensuring the provision of services that recognise and address the specific needs of female offenders where they are different from those of male offenders is set out clearly in our recent Strategic Objectives for Female Offenders strategy. I am sorry that the noble Baroness, Lady Corston, thinks that it is rather sparse, but it does point the way forward.
All probation trusts are required to make appropriate provisions for women in the community to address factors associated with their reoffending. One of the Ministry of Justice equality objectives for the period 2012-16 is the,
“provision of gender-specific community services to improve support for vulnerable women in the criminal justice system”.
Let me make it absolutely clear that this objective will continue to apply as we move to a new framework for supporting offenders in the community.
Our plan is to open up provision to a diverse market of large and small providers. This will provide the opportunity for groups delivering women’s services, which are often small, community-based organisations. Helen Grant, the Minister for Victims and the Courts, and I have visited a number of these women’s centres, as the noble Baroness, Lady Corston, mentioned, and I have been greatly encouraged by the work that we have seen being done with female offenders to help them turn their lives around. I pay tribute to the work of Helen Grant. She has made a significant impact since she came into her role. I know of her commitment to this issue and that she will particularly appreciate the tribute from the noble and learned Lord, Lord Woolf.
I am equally clear that our new framework must encourage providers to work in partnership with other public services to ensure that the broader life-management issues associated with women offending, such as drug misuse, domestic violence and sexual abuse, are addressed. As we design the new commissioning process, the need to ensure the delivery of services that take account of women’s needs and their often troubled backgrounds will be embedded into the new approach.
Service specifications for the commissioning process will include gender-specific outputs, where appropriate, which providers must meet. In order to win contracts, service providers will be required to demonstrate that they understand and will respond to the particular needs of female offenders where these differ from those of men. This will include, for example, taking account of women’s family and caring responsibilities. Many female offenders have children, and any activity requirement clearly must take account of their needs too. There will be a robust approach to evaluating bids to ensure that potential providers are offering innovative and effective services to female offenders.
The payment-by-results approach will in itself be an incentive to providers to take a gender-specific approach where appropriate. Put simply, they will not rehabilitate female offenders unless they take account of and address women’s needs and the factors that lead them to offend. I also reassure noble Lords that those safeguards for female offenders will not end with the commissioning process. Once contracts have been awarded, contract managers within the Ministry of Justice will monitor service delivery to ensure that key outputs for female offenders are being delivered. Service providers will be supported by guidance on working with female offenders and the sorts of provision that are known to be effective.
Lord McNally
Deary, deary me. If the best we can do is some anecdote about paint not turning up on time, that must be a sign of some pretty thin paint. Of course, we are at the very start of the Bill’s progress; it is the second day of Committee in its first House. I am perfectly happy to acknowledge that noble Lords can ask all kinds of questions about what is done—“Give me firm answers now”. However, the truth is that we are doing something extremely radical, which the previous Government tried and backed off from. Let nobody doubt that payment by results in this area is exciting.
By the way, I think that the noble Lord, Lord Beecham, should take full responsibility for that paint story. I cannot imagine that the noble Lord, Lord Ponsonby, who is a gentle soul, would attempt such a malicious intervention. It has Beecham fingerprints all over it. Let us be clear on that.
Lord McNally
Yes. I have never suggested that the noble Lord, Lord Ramsbotham, is trying to throw a spanner in the works. I know that he wants this to work as much as I do. One of the values of the parliamentary process is that legitimate questions are asked about how this or that will be done. As the process unfolds, I will do my best to make sure that the House is informed.
We are working at this moment, not in advance of legislation but within the department, on how contracts and competition will work. We are not entirely flying blind on this because, as the noble Lord, Lord Ramsbotham, has said, payment by results has been tried in other parts of Whitehall. Of course we are taking advice and learning from both the successes and the failures of other departments. That is being built into our process. The noble Lord referred to gaming in the NHS experience. That will certainly be looked at. He mentioned transition costs being built in, and verification. We are working and consulting with other departments on these matters. It is very interesting. I can remember the first prospects for privatisation of prisons and a lot of the debates that went on. Even the noble Lord, Lord Ramsbotham, would acknowledge that with the privatisations of prisons lessons and efficiencies have been shown and standards set which have been to the benefit of the prison system as a whole. We anticipate that a similar process will take place in this case.
The Government are very clear that we are trying to carry through quickly a very radical programme, addressing a problem which defeated the previous Government. As earlier debates today have shown, our attempts to address it have widespread support across the House.
We will need to have a good understanding of the support that probation providers give to short-sentenced offenders during licence and supervision. We will need to keep a very close eye on the proportion of offenders breaching supervision, and on how magistrates decide to respond. We will also need to watch very carefully for any changes in sentencing practice.
As I have made clear, it is not the Government’s intention that this Bill will result in changes in sentencing practice, and nothing in the Bill alters the existing custody threshold. However, let me reassure noble Lords that we will be monitoring this and other issues extremely closely. Again, the noble Lord, Lord Ramsbotham, is quite right that there are a lot of other initiatives. This Government are exciting and radical, and are doing things across the piece. Of course, progress we are making in other areas will impact on the criminal justice system, just as our successes will impact on other parts. That is what happens when you have a radical Government.
We will also make sure that we are open and transparent about sharing data and information wherever we can. There are already well established mechanisms for making available many of the types of information that the noble Lord, Lord Ramsbotham, has highlighted in his amendment. On changes in sentencing trends, for example, we publish every quarter a Criminal Justice Statistics bulletin that includes detailed information on sentencing outcomes and trends. This is a national statistics publication, so it is subject to the appropriate checks and safeguards. Any changes in sentencing practice will be clear from this report. In addition, the Sentencing Council has a duty under Section 130 of the Coroners and Justice Act 2009 to publish a report every year on the impact of changes in sentencing practice on prison and probation costs. Any changes to sentencing practice as a result of this Bill will fall under that duty. The independent council, with all its expertise on sentencing, is best placed to carry out that analysis.
Similarly, on breach we already publish licence recall statistics every quarter in the Offender Management Statistics Quarterly Bulletin. Again, that is a national statistics publication. We want to make sure that, in the future, that includes recalls of prisoners released from sentences of less than 12 months, and includes committals to custody for those proven to have breached a supervision requirement. Likewise, we publish proven reoffending rates every quarter, broken down by type and length of sentence. That is also a national statistics publication.
I hope this makes it clear that we are not starting from scratch. I also take pride in the fact that this has been one of the most proactive Governments in putting out their statistics and information, allowing various parts of the Government to be checked on performance. The Government have worked hard over the past three years to improve the transparency of the criminal justice system, and we would look to make available much of the information that Amendment 34 details through the existing mechanisms we have.
The Secretary of State is already subject to a duty to publish information of this sort. As I suspect the noble Lord is aware, given that his amendment follows some of its language very closely, Section 95 of the Criminal Justice Act 1991 requires the Secretary of State every year to publish such information as he considers expedient on a range of topics, including information that allows those working in the justice system to become aware of the financial implications of their decisions and information that allows those working in the justice system to understand the effectiveness of different sentences in preventing reoffending.
We already consider it expedient to publish not just annually, but quarterly, much of the information that Amendment 34 mentions. That will continue to happen if the provisions of the Bill receive the agreement of both Houses. Therefore, while I understand, welcome, and agree with the intentions of the noble Lord in tabling this amendment, I hope that what I have said reassures him that the Government are committed to understanding and sharing the impacts of this Bill and to being as transparent as possible in delivering it forward.
In doing so, I remind noble Lords that costs for extending supervision will ultimately be dependent on the outcome of competing offender services in the community. If we were to give figures at this stage, it would put at risk our ability to agree value-for-money contracts with providers. However, I hope that my commitment last week to take away the impact assessment for the Bill and to consider how we could expand it will provide some additional assurance. Work is under way to revise the impact assessment as I speak, and I hope to be able to bring back a revised version soon. I know what has been said about the value of that on Report. In the light of these assurances I hope the noble Lord will feel able to withdraw his amendment.
Lord Hylton
My Lords, will the Minister confirm that the Treasury has set a fixed sum for the transition to the rehabilitation of short-term offenders and for the changes to the probation service? If so, how big is that sum, and over what period?
Lord McNally
One of the things I have learnt in three years is that when a noble Lord asks me a question like that, I promise to get advice and write to him for the benefit of the Committee. I am quite sure that on almost every aspect of life the Treasury has fixed sums in mind, but I will check on that and report back to him.
Lord McNally
The noble Lord beat me. I have been racking my brains for a suitable Shakespearean quote to come back at him. I suppose we could say that this is a “Government of wonders”. I am reminded of the late Lord George Brown, who, when he was Economics Minister, stood up at the Dispatch Box, banged it and said “This Government are running the economy in a way that it has never been run before”, and was then surprised when the Opposition cheered him to the echo.
In this last group of amendments, we turn to the provisions on consequential and transitional arrangements. The provisions in Clauses 18 and 19 are mainly technical, and are also fairly standard constructions, which can be seen, for example, in the Criminal Justice Act 2003. The noble Lord, Lord Beecham, seems to be saying that these amendments are designed to ensure that Parliament has a say before order-making changes are made.
Clause 18 allows the Secretary of State to make provision that is consequential, supplementary or incidental to the provisions of the Act by an order that is subject to the negative procedure. This clause mainly amends other statutory schemes, some of which are complicated and technical in nature. It is therefore eminently sensible for there to be a power to make the consequential or other changes needed to ensure those provisions work well with the provisions of this Act.
Those changes should be subject to the negative procedure where possible. Clause 18(6) makes it clear that where an order under Clause 18 is made that amends another Act, it is subject to the affirmative procedure. Amendment 35 would remove Clause 18(2), which makes it clear what the power can be used for. The power itself is conferred by subsection (1), so the amendment makes it unclear what the power may be used for: it would not remove the power. There will be an opportunity to scrutinise the technical changes made by any order made under Clause 18. I do not believe that these have to be affirmative orders, and where the order is not subject to the affirmative procedure it will be subject to the negative procedure.
Amendment 36 is more specific in that it would make any order made under Clause 19 subject to the affirmative procedure. Clause 19 makes arrangements for transitional provisions and introduces Schedule 7, which sets out in what circumstances the changes made by the Bill apply. For example, it sets out how the new supervision changes apply to different sentences in different circumstances. The power to make transitional, transitory or saving provisions can be used only if those provisions are related to a commencement order. Under this Act, commencement orders are, as is usual, not subject to a parliamentary procedure. It would therefore be odd for the power to include transitional, transitory or saving provisions on commencement to be subject to the affirmative procedure.
Clauses 18 and 19 are needed to implement primary legislation flexibly, and they are often technically complicated. I do not think that noble Lords would particularly welcome a detailed debate on affirmative orders. I do not know: I could think of one noble Baroness who would relish a detailed debate on affirmative orders. Oh, she has gone. We teased the noble Baroness, Lady Hamwee, earlier. I am not convinced that such a debate is a good use of your Lordships’ time, or is what this amendment actually intends.
In asking the noble Lord to consider withdrawing these amendments, I take the opportunity to say that this has been very useful and productive Committee consideration of this Bill. We will return to detailed points on Report and we have already had a few Mafia-like warnings—you know where we live—that there will be consequences if we do not respond. However, I have appreciated the general support on all sides of the House for what we are trying to do in tackling the problem of reoffending, which has proved very difficult for successive Administrations. We claim no genius in our solutions, but we are genuinely trying to find both the resources and the flexibility to tackle this problem. The contribution of this House to getting it right is enormously appreciated.
Lord Beecham
I am grateful to the noble Lord for his reply and his essentially good-humoured approach for most of the time we have been discussing the Bill. I made it clear at the outset that these were probing amendments only, so he perhaps went a little further than he needed to in responding. Nevertheless, I am grateful. I echo his words about the proceedings having been useful. How productive they have been will very much depend on the Government’s response on Report. I hope it will be a little more positive than he has indicated, or has been allowed to indicate, so far. I beg leave to withdraw the amendment.