Wednesday 3rd December 2025
(10 months, 3 weeks ago)
Lords ChamberSentencing Act 2026 View all Sentencing Act 2026 Debates Read Hansard Text Amendment Paper: HL Bill 142-III Third marshalled list for Committee - (2 Dec 2025)
Lord Timpson
“(4A) In section 244(1A) (duty to release prisoners not subject to special provision for release), for “and”, in the second place it occurs, substitute “to”.”Member's explanatory statement
This amendment is consequential on the insertion by clause 29 of the new section 255BA of the Criminal Justice Act 2003 (automatic release from recall) and ensures that section 244(1A) of that Act, which cross refers to the recall provisions, includes a reference to this new section.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, Amendment 120 is in my name. I will also speak to Amendments 123 and 124 in my name. These three amendments are minor and technical, and we have tabled them as small but necessary changes to ensure that the Bill functions as intended. I begin by explaining the changes to Clause 29 through Amendment 120. This is a necessary technical amendment which ensures that the new automatic release from recall regime is integrated into the legislative framework and functions as needed. The changes to Clause 34, through Amendments 123 and 124, are also technical. They update cross-references so that existing powers which allow the Secretary of State to amend the number of hours specified in an unpaid work requirement continue to function correctly in light of the amendments made by Clause 34. I beg to move.
Lord Sandhurst (Con)
I thank the Minister for his series of drafting amendments, which seek to tidy up the language and cross-references in the Bill. We on these Benches do not oppose the amendments, which will make things clearer for anyone reading the Bill in future.
Lord Timpson (Lab)
I thank the noble Lord for his view on these minor and consequential amendments.
Lord Sandhurst (Con)
My Lords, I will speak briefly to Amendment 122, in the name of the noble Lord, Lord Marks of Henley-on-Thames, which concerns the power of the Probation Service to vary residence requirements and associated conditions of supervision.
I begin by saying that we on these Benches appreciate the intention behind the amendment. The ability to move an offender from one address to another, particularly where there is a risk to a partner, former partner or family member, is plainly necessary in some circumstances. The Probation Service must have the tools to protect victims and to manage offenders effectively. This amendment seeks to provide a clearer statutory framework for doing so.
The amendment rightly provides that, where the Probation Service makes any such variation, it must return to the sentencing court for approval within 14 days of the confirmation. That is an important safeguard; the offender, the interested parties and the court must all be properly kept in the picture. However, we would welcome greater clarity from the Minister on how, in practice, the Probation Service would assess necessity, ensure proportionality and manage the additional administrative and supervisory burdens that such powers might create. Probation must also be properly resourced and supported.
We are also mindful that changing an offender’s residence could have profound consequences, not only for supervision and risk management but for the offender himself, in the form of employment, family ties and wider stability that underpins rehabilitation. The threshold for such a direction must therefore be robust, evidence-based and truly transparent.
In that spirit, I hope the Minister can reassure the Committee that the objectives behind this amendment—protecting victims and enabling better offender management—are achievable within existing powers, or, if not, that the Government will consider whether a more tightly defined mechanism might be appropriate. We are grateful to the noble Lord for raising these issues, and we look forward to hearing the Government’s response.
Lord Timpson (Lab)
My Lords, it is, and should remain, the role of the court in sentencing to determine the requirements that should apply to a particular community sentence and how they are varied. As the noble Lord, Lord Marks, set out, it is vital that risk is managed quickly and effectively. This is particularly important in cases where, for example, domestic abuse is of concern.
Where an individual has been sentenced to a community or suspended sentence, probation practitioners undertake comprehensive assessments to ensure that risk is identified throughout an order and managed early. This means that they can take appropriate action to respond to that risk, ensuring offenders are monitored effectively. This includes applying to the court, where appropriate, which has powers to vary the requirements of a sentence, including the powers to revoke a community order and to resentence, where it would be in the interests of justice.
We are creating a new domestic abuse flag at sentencing so that domestic abusers are more consistently identified. This helps prison and probation services manage offenders effectively and ensures that victims are better protected. Before making a relevant order containing a residency requirement, the court must consider the home surroundings of the offender.
The court can already give probation the power to approve a change of residence when requested by the offender—for example, where an offender would like to move closer to where they were undertaking a programme or to their place of employment. Offenders released on licence from a custodial sentence can already be required to comply with residence obligations. These can be varied as required, either by probation or the Parole Board, as appropriate, depending on the offender’s sentence.
To be clear, if an offender fails to comply with the terms and conditions of an order, they can be returned to court to face further penalties, including custody. I hope the noble Lord will agree that there are sufficient existing processes in place, and I urge him to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
I am not sure that I understand the rationale for saying that there are already existing powers in the Probation Service. That is something I wish to talk to the Minister about, and I am sure he will be happy to do that. We are very keen that the Probation Service be trusted to make such alterations on its own, subject to the approval of the sentencing court. We absolutely agree on that. However, currently I am not quite sure where the Government stand on this. It appears to me that they are too reliant on the sentencing court and too little reliant on the Probation Service, but I am sure that that is something we will discuss. While we discuss that, I beg leave to withdraw this amendment.
Lord Keen of Elie (Con)
My Lords, the principle of deportation of foreign national offenders attracts almost universal support. I say “almost” because the cohort of foreign national offenders may not entirely embrace the idea. However, if we introduce a system whereby they are deported without custody or punishment, I suspect that they will come on board with the idea as well.
It occurs to me that the Government are going to approach this with considerable and conspicuous care and take on board the very considered amendment advanced by the noble Lord, Lord Verdirame, and Amendment 142 from the noble Lord, Lord Jackson. It will, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, come back to bite us if it is discovered by very professional criminals that you can come here, execute your robbery, contract killing or whatever else and then, when you are caught, we pay your air fare home. It does not make an awful lot of sense.
With regard to Northern Ireland, I would take Amendment 146 as a probing amendment inviting the Minister to explore the impact of the Windsor Framework on this proposal.
I note that, if a foreign national offender in Northern Ireland is offered the option of deportation or lengthy custody in Northern Ireland, he might well be inclined to the former, but that is just a practical proposal. I look forward to hearing the Minister’s response.
Lord Timpson (Lab)
I start by thanking noble Lords and the noble and learned Lord for tabling their amendments, their interest in this topic and their considered words. I reassure the noble Lord, Lord Verdirame, that prisoner transfer agreements are very important. A few weeks ago, I went to Albania and met the Justice Minister and consulate colleagues to reiterate how important it is and to see what more we can do.
Our priority is to protect victims in the UK and ensure that these offenders can never again offend here. Once deported, offenders will be barred from ever returning to the UK, protecting victims and the wider public.
I will address the amendments in turn. Amendment 122A, limiting the early removal scheme to those in receipt of a sentence of less than three years, would mean a more restrictive early removal scheme than we currently operate. On the point made by the noble and learned Lord, Lord Thomas, on foreign national offenders, there are more than 3,200 FNOs who would not be eligible for removal under Section 260 because they are serving a fixed-term sentence greater than three years. The impact on our ability to manage prison capacity would be substantial. We already transfer prisoners to serve the remainder of their sentence in their home country under prisoner transfer agreements, where they are in place.
However, these are not suitable in all cases, and it is important that we retain multiple paths for removal to reduce prison capacity and speed up removals, especially when you consider that it costs an average of £54,000 a year to house these offenders. Once removed, FNOs are barred from ever returning to the UK, keeping victims and the wider British public safe.
The early removal scheme remains a discretionary scheme that will not be suitable for all foreign national offenders, and we are reviewing the existing guidance that includes a range of reasons it can be refused.
The “stop the clock” provision means that those who re-enter the UK in breach of their deportation order, following an ERS removal, are liable to serve the remainder of their sentence here.
I reassure the noble Lord, Lord Verdirame, that we are working with the Home Office to revise the policy framework that underpins the scheme and ensure that clear operational guidance is in place before the measure is commenced. I am happy to write to the noble Lord on his detailed questions. The eligibility of those who have returned after a previous removal is one consideration, as is the commitment made in the other place to consider those convicted of stalking offences.
Amendment 142, tabled by the noble Lord, Lord Jackson, seeks to introduce immediate deportation for foreign nationals given sentences of at least six months. This would require the Government to make an immediate deportation order in respect of persons who have committed less serious offences. In the Bill, we are extending automatic deportation to persons given a suspended sentence of 12 months or more.
We will also increase the deportation consideration threshold to include anyone given a suspended sentence of any length. In this, the Government are going further than any previous Government in tackling foreign criminality. We have ramped up the removals of foreign criminals, with almost 5,200 deported since July 2024—an increase of 14% compared with the same 12 months previous.
However, just as we no longer transport convicts to the other side of the world for stealing a loaf of bread, we do not think it appropriate to have immediate deportation for less serious crimes in the way proposed by the noble Lord. Lowering the threshold in the way that his amendment does would result in a disproportionate duty to deport for low-level offending. It would lead to significantly more appeals being made against such decisions, arguing exceptionality. It would increase the operational burden to pursue deportation in cases where it was unlikely to be successful because the offending was relatively minor.
On Amendment 146, I thank the noble Lord, Lord Jackson, and the noble Baroness, Lady Hoey, for their understanding of my lack of knowledge on the intricate details of the Windsor Framework. In fact, I think that when the Windsor Framework was going through Parliament, I was very happily running a shoe repair business.
This amendment seeks to disapply parts of the withdrawal agreement and Article 2 of the Windsor Framework in relation to the automatic deportation provisions in the UK Borders Act 2007. I think that the intention behind the amendment is to ensure that deportation decisions in Northern Ireland can be taken on the same basis as deportation decisions in the rest of the UK.
It is the Government’s view that Clause 42 is compatible with Article 2 of the Northern Ireland protocol and the Windsor Framework. Therefore, we do not agree that there is a need for this amendment. To reiterate, it is the Government’s view that the deportation of foreign national offenders is not prohibited by these provisions. It is our view that immigration is a reserved matter, and we apply the same immigration laws across the whole of the UK.
I want to reassure the noble Baronesses, Lady Hoey and Lady Lawlor, and the noble Lord, Lord Weir, that foreign national offenders, regardless of where they are in the UK, should be in no doubt that we will do everything to make sure they are not free on Britain’s streets, including removal from the UK at the earliest possible opportunity.
I note that the stated purpose of Amendment 141A as tabled by the noble Baroness, Lady Hamwee, is to probe the effect of Clause 42 on survivors of modern slavery, human trafficking or domestic abuse. I reassure the noble Baroness that the Government take their responsibilities towards vulnerable people very seriously. The Home Office has published guidance on how to identify and support victims of modern slavery and human trafficking. Where removal of a person would breach the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings, deportation must not proceed. Victims of domestic abuse whose relationship has broken down can apply for permission to settle in the UK permanently. Victims of domestic abuse who meet the threshold for deportation will be considered for deportation in the same way as other persons.
I am grateful to the noble Baroness for the opportunity to set out the Government’s position regarding the impact of Clause 42 on people who have a reasonable claim to be a victim and survivor of modern slavery, human trafficking or domestic violence. Such a claim does not amount to immunity from deportation for people convicted of an offence, although in some circumstances temporary permission to stay may be granted to victims of human trafficking or slavery. The changes brought about by Clause 42 will not alter this.
I thank noble Lords and Baronesses for this debate and ask the noble Lord to withdraw his amendment.
Baroness Hamwee (LD)
Just briefly, on the point of my amendment, one problem is that people simply do not know what their rights are and find it very hard to find out. However, I wanted to ask the Minister about prisoner transfer agreements—I was wondering whether to raise this earlier in the debate. Is he able to tell the Committee how many are in place, or could he perhaps write to us to give us information about that? I am slightly ashamed to ask this because I am sure that a quick search on the internet would tell me, but I think the noble Lord will be more authoritative.
Lord Timpson (Lab)
I will write to the noble Baroness with exact details. I have quite a few details in my head, but I want to get it right, so I will write.
Lord Jackson of Peterborough (Con)
Very briefly, my Lords, I want to thank the Minister for his very helpful, illuminating and quite reassuring answer, which those of us who spoke to Amendment 146 are grateful for.
Lord Timpson
“(d) in paragraph 13(1)(a) of Schedule 23 (power to amend maximum number of hours of unpaid work), for “paragraph 2(1)” substitute “paragraph 2(1A)”.”Member's explanatory statement
This amendment updates a cross reference and is consequential on the amendment made by clause 34(2) (limits on the number of hours in an unpaid work requirement in a community order or suspended sentence order).
Lord Keen of Elie (Con)
My Lords, the Government have stated that the aim of this measure is to increase public confidence that justice is seen to be done as more individuals are diverted into the community. They claim that if individuals are seen to be giving back to their community then this will act as a deterrent against committing crime. I wonder whether there is an element of wishful thinking from the Government about this. The ability to take photos of offenders picking up litter is hardly a substitute for the prospect of time in custody.
If the Government intend to enact the substance of the Bill then perhaps any efforts to act as a deterrent are welcome, even a measure as small as this one. However, we would have to ensure that it is exercised properly and with a clear framework around it. Probation officers are already operating under extraordinary strain; they should not be required to improvise policy on a ground such as this, particularly when it has obvious implications for privacy, data protection and public confidence. There would have to be clear statutory guidance on when a photograph may be taken, the safeguards that exist against misuse and the redress that is available if things go wrong. As a number of noble Lords have mentioned, we must also guard against a drift towards humiliation or the selective publication of images in a way that would stigmatise individuals or particular communities.
If the purpose of Clause 35 is to demonstrate that unpaid work is both visible and constructive then the Government would have to ensure that the practice reflects those aims. Perhaps with proper regulation this might be possible, but without that it risks becoming another ill-defined power handed to an already overstretched Probation Service. We urge the Minister to commit to setting out clearly the safeguards and practical requirements that will clearly be required if a clause such as Clause 35 is ever implemented.
Lord Timpson (Lab)
I thank the noble Baronesses, Lady Jones and Lady Bennett, and the noble Lords, Lord Marks and Lord Beith, for tabling these amendments and raising their concerns about Clause 35. I also thank the noble Lords, Lord Foster and Lord Bach, for raising their concerns.
I am sure we can agree that people who commit crimes should show that they are giving back to society. This clause is about building public confidence in community sentences. Local communities should know that those who harm them are paying back and be able to see the positive work being done. As my noble friend Lady Chakrabarti pointed out, it is important that they can clearly see the benefits of community payback and have their say on the work undertaken by nominating projects in their area.
I understand there may be concerns about the potential impacts of this measure and I reassure noble Lords that careful consideration is being given to how it is implemented. I have listened to noble Lords’ comments and will take them away to thoroughly consider. I also reassure noble Lords that publication will not apply in all cases. Exemption criteria will be set out in secondary legislation. This will be used alongside clear operational guidance on the circumstances where publishing would not be appropriate. The criteria are to be determined but may include factors such as specific offence types or personal circumstances which present heightened risks to the offender, their families or others. Probation practitioners will use this guidance and their professional assessment to determine the right course of action. We should have confidence that they will use the power only where appropriate. I confirm to noble Lords that I have heard the points they have made and reiterate that we will reflect carefully before Report.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for his response and take encouragement from the phrase “thoroughly consider”. I hope, speaking as a former newspaper editor, that the noble Lord, Lord Foster, is right that yes, sometimes newspapers are right. We can live in hope.
I thank all noble Lords who have taken part in this debate. The hour is late, but we have had a very clear and engaged debate and a very clear direction of travel, even from the Conservative Front Bench. I think a fair characterisation would be that there is a great degree of scepticism about Clause 35.
I have just a couple of things to pick out. The noble Lord, Lord Marks, made a very important point about the relationship between probation officers and their clients. That really deserves extra consideration. I particularly thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Bach, for bringing their experience and knowledge and bravely delivering a clear message from the Government Benches.
Finally, I note that we have heard from both the current chair of the Justice and Home Affairs Committee and its former chair, the noble Baroness, Lady Hamwee. The messages are coming to the Government from all angles. We reserve the right to bring this back on Report, but I very much hope that will not be necessary. In the meantime, I beg leave to withdraw the amendment.
Lord Sandhurst (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for bringing this issue to the Committee. Effective probation practice depends fundamentally on local knowledge, local accountability and integration with wider services, including housing, health, substance misuse, skills and so on. In Wales, these services, in contrast to probation, are largely devolved. It is therefore entirely reasonable to ask whether the current arrangement or settlement best serves the people of Wales and whether the structures we have today genuinely allow probation to work in partnership effectively with the devolved landscape.
The noble and learned Lord has raised an important point. We on these Benches do not commit ourselves today to the specific mechanism set out in the amendment. Devolution of an important plank of the criminal justice function requires proper consideration, planning and, above all, collaboration—I emphasise that word in the light of what the noble and learned Lord has said—between the United Kingdom Government and Welsh Ministers. We agree that that conversation cannot be avoided. It must be approached constructively with regard to the Welsh perspective.
Probation in Wales faces real pressures and deserves a stable and effective framework within which to operate. If the Minister believes that the current reserved model remains the right one, the Committee would expect him to set out clearly how it delivers coherence, integration and accountability, and how it is effective not in theory but in practice. We are grateful to the noble and learned Lord for initiating this debate, and we look forward to the Government’s response, probably not for just the one time.
Lord in Waiting/Government Whip (Lord Lemos) (Lab)
I thank the noble and learned Lord, Lord Thomas, for his amendment and his thoughtful engagement on this issue and others. I know he has met my noble friend the Minister outside the Chamber to discuss these things.
The Government committed to undertake a strategic review of probation in their manifesto, and it is still our plan to review the governance of the Probation Service, looking at partnerships across England and Wales. The noble and learned Lord, Lord Thomas, mentioned the Manchester model. I hesitate to agree with the suggestion that it is being imposed on Wales, but I have to say that I am rather a fan of the Manchester model. In fact, I regard myself as the progenitor of it—or one of them—when I was at HMPPS as its lead non-executive director. That is part of what is on offer, as it were.
It is important that the recommendations in this Bill are first implemented and that we bring stability to the Probation Service in England and Wales as it currently is before undertaking any structural review. The Government believe that this would not be the right time to consider factoring structural changes into the many changes to probation that will arise as a result of this legislation. I understand that the doctrine of unripe time is often a fairly feeble excuse for inaction, but I am sure that everyone in the Committee recognises that—if I can put it like this—the capacity for change in the Probation Service, with this Bill and the current situation, is pretty much maxed out.
The amendment proposes devolving the Probation Service, but not the equivalent in relation to sentencing or prisons. Devolving parts of the criminal justice system in this way would create a divergence between the management of offenders and the wider criminal justice, sentencing and prison framework across England and Wales. We know that poor handovers, weak communication or gaps in support during the transition from custody to the community are among the greatest barriers to successful resettlement, so we are concerned that some of the changes that might arise as a result of this would create friction in the way that I have suggested. Therefore, any framework in which prisons and probation are separately owned, funded or designed carries a real risk that the two halves of the process might fail to connect, particularly at a time of strain. When that happens, people leaving prison can all too easily fall through the gaps.
That is the heart of the Government’s view at the moment—that this is not a good time to impose structural change on the Probation Service. We want to be sure that we do not create the sort of risks and frictions that I discussed. We will continue to work closely with the Welsh Government to support the local delivery of services by devolved and reserved partners in Wales. I hope that I have given the noble and learned Lord some reassurance, at least sufficient for him to withdraw his amendment.
Lord Thomas of Cwmgiedd (CB)
My Lords, I completely agree with the noble Lord who has responded. It is obviously sensible to devolve prisons and probation together—that is what we recommended—but the political reality of the way in which the Governments in Cardiff and London relate, particularly when they are of the same party, made me think at this stage not to put down prisons and probation. I shall rethink that for the next time.
I wish that people here would realise that there will be no effective change to the Probation Service until we can take some of the money out of prisons and put it into probation. I am sure that most people who think about it realise that the Government do not have any money and realise it has got to come from somewhere, and that imprisoning people for sensible and shorter times is a much better policy. I would like to see that done in Wales, and I am convinced it could be done, so I will think about the suggestion from the Minister that we should put down both on the next occasion.
I said that the Manchester model was being imposed, but it is really a Hobson’s choice. That is what I mean about it being imposed—“You want something, so we will give you a little bit to keep you quiet”. But it is not the right model, because Manchester is not a country; it is a city in England where people here make decisions on policy. Wales is a different country, a proud and ancient nation. That is the difference, and that is why the Manchester model is good for Manchester but not good for Wales.
In the light of all that has been said, I hope that I may return to this issue, maybe in a slightly different and wider form of amendment, as suggested. I beg leave to withdraw the amendment.
Lord Keen of Elie (Con)
My Lords, these amendments may appear useful in a time where sentencing laws are revised with increasing frequency, as illustrated by this Bill. A call for transparency and data is also generally welcome. Both amendments reflect a desire to ensure that justice keeps pace with changes in law and society. I am sure that anyone can support that general intention. We would invite the Government to address constructively the concerns that lie behind these amendments.
However, it appears that there may be very real practical issues and difficulties about any such amendment to the Bill. To take one simple example, the Bill, when it becomes law in its present form, will determine that someone who is sentenced to 12 months or less should have a suspended sentence. At the point when the Bill becomes law, is everyone then serving a custodial sentence of 12 months or less going to seek review on the grounds that the sentence should now be suspended? It seems to me that there are an awful lot of practical difficulties around that possibility.
Then, of course, we are going to have people reviewing the Sentencing Council recommendations from time to time who will say, “Wait a minute: they used to recommend three years for what I did, but they are now recommending two. Could I please have a review?” While the amendments are well intentioned, it occurs that there could be an immense number of practical difficulties, putting aside even the imposition upon the courts to review sentences at regular levels.
Lord Lemos (Lab)
My Lords, I thank the noble Lord, Lord Marks, for these amendments, which I understand are seeking to ensure fairness in sentencing outcomes and are clearly rooted in the commitment, as the noble and learned Lord, Lord Keen, said, to ensure that justice keeps pace with society.
That said, it is important to recognise that mechanisms already exist to address perceived injustices, including criminal appeals and sentence reviews, and mandating a formal review every three years with accompanying data and recommendations therefore risks duplicating existing oversight functions and placing additional burdens on the justice system. As the noble Lord will appreciate, there are already pressures in our justice system and it is especially important that we ensure that any reforms that create additional burdens are proportionate, targeted and deliverable.
I note, however, that the recent Leveson review calls for a full review of the Rehabilitation of Offenders Act 1974 to modernise how criminal records are disclosed. The Government are considering this recommendation and will update the House in due course. In addition to that, the Law Commission was invited by the Government to consider the law on criminal appeals. Its consultation closed earlier this year and the responses are currently being analysed. We can expect the Law Commission to report to the Government with recommendations next year. Given that those pieces of work are in train, I hope that gives the noble Lord some assurance that those recommendations will be carefully considered. While we are sympathetic to the principle that fairness underpins these amendments, for the reasons I set out, I ask him to withdraw the amendment.
Lord Keen of Elie (Con)
My Lords, turning first to the amendment in the name of the noble Baroness, Lady Chakrabarti, I must say from the outset that we on these Benches cannot support it. The power to remand a person in custody for their own protection—or, in the case of a child or young person, for their own welfare—is not one that the courts use lightly. It is already tightly circumscribed and deployed only where the alternative would expose an extremely vulnerable individual to serious harm.
To remove that safeguard entirely would be a mistake. There are rare, but very real, occasions when a defendant’s personal circumstances, exploitation by criminal gangs or acute safeguarding concerns mean that the only safe option, in the immediate term, is to keep them in secure accommodation. That judgment, made by a court on evidence and subject to challenge, is not one that we believe Parliament should now deprive them of. Where children are concerned, the imperative is even stronger. The court’s paramount concern must be people’s welfare, and removing this power risks leaving young people unprotected in precisely those situations where intervention is most vital. For these reasons, we cannot support Amendment 140.
We strongly support the principle underlying Amendment 147 in the name of the noble Lord, Lord Foster. Far too many people spend far too long in remand—months and, sometimes, well over a year—awaiting trial or sentence. For all practical purposes, they experience incarceration in the same way as sentenced prisoners. They are deprived of liberty, separated from their families and often held in conditions indistinguishable from the sentenced estate. Yet those in remand do not have the same access to rehabilitative programmes, education, therapy or other forms of support that are routinely offered post sentence.
That is increasingly difficult to justify, particularly given that time spent on remand is overwhelmingly treated as time served for the purposes of the ultimate custodial sentence. If we accept that remand can form a significant part of an individual’s total period in custody, it cannot be right that this is, in effect, dead time, in which they are able neither to progress their rehabilitation nor to address the issues that may have contributed to their offending behaviour.
Therefore, the amendment proposed by the noble Lord is a valuable contribution to a discussion that is long overdue. It does not prejudge the precise mechanisms or impose unworkable obligations on overstretched services, but it rightly challenges us to consider whether the current disparity is effective or conducive to reducing reoffending. The Government should engage seriously with the spirit of these proposals.
Taken together, the amendments highlight two themes that run throughout our debates on the Bill: the need to protect the vulnerable and the need to ensure that custody, whether pre or post sentence, serves a constructive purpose. I hope that the Minister will commit to further work in this area, and I look forward to his response.
Lord Lemos (Lab)
My Lords, I thank the noble Baroness, Lady Chakrabarti, for her amendment and for taking the time to discuss her related concerns with my noble friend Lord Timpson. I also thank her for her support for the Bill and its overall intentions—that is very much appreciated coming from someone with her track record.
Amendment 140 would remove an important safeguard which, as the noble and learned Lord, Lord Keen, said, is very rarely used but remains an option for the courts as a measure of last resort and out of concern for the defendant. Eliminating this provision could leave vulnerable individuals without any viable protection, particularly where alternative care arrangements were simply unavailable or could not be implemented swiftly enough. We fear that those may be the consequences. Examples where it may be used include where it is the only option available to the court to keep someone safe, such as in cases where the defendant is a member of a gang and could be subject to repercussions if they were not protected.
I hope it will also reassure your Lordships that the Mental Health Bill, which the noble Baroness, Lady Chakrabarti, referred to, is now in the other place. It includes a reform to end the use of remand for one’s own protection under the Bail Act where the court’s sole concern is the defendant’s mental health. This reform should ensure that remand for one’s own protection is, therefore, used only as a last resort in the circumstances I have outlined.
At this stage, repeal would leave a gap in the available provision. Courts must retain the flexibility to act decisively in safeguarding individuals when no other option exists. The amendment would risk unintended consequences for vulnerable defendants and undermine the protective function of the justice system.
Amendment 147, which I thank the noble Lord, Lord Foster, for tabling, seeks to allow prisoners held on remand to access rehabilitative programmes, education, therapy and other support before the start of their sentence. The Government’s view is that the amendment is not necessary, given that remand prisoners can already access those programmes where prisons run them.
There is also an important legal distinction here that I should highlight to your Lordships. Remand prisoners are held in custody pending trial or sentencing, and some have not yet been convicted. Of course, we recognise that people are spending more time on remand; therefore, as I have said, where these services are available and in the right circumstances, they should be able to access them. However, remand prisoners are legally distinct from sentenced prisoners, and we have to reflect that in the priorities for resources.
There are already mechanisms in place to support remand prisoners, including access to healthcare. At the moment, the Government have no plans to expand all rehabilitative programmes, education, therapy and other support to remand prisoners. This would require substantial changes to prison operations and resourcing, and could divert resources from those already convicted and serving sentences. We recognise, however, some of the changes in the remand population. My noble friend the Minister and I would be very happy to continue to talk to the noble Lord, Lord Foster, about these matters but, given what I have set out, I ask the noble Baroness to withdraw her amendment.
Baroness Chakrabarti (Lab)
My Lords, I am so grateful once more to the noble Baroness, Lady Hamwee, but, I have to say, I am disappointed in the responses from both Front Benches on this occasion. They were uncharacteristic, knee-jerk responses that do not display a broader understanding of the other laws of England and Wales that deal—or should deal—with vulnerable people.
The noble and learned Lord, Lord Keen of Elie, mentioned children. There are ample measures for protecting children under the Children Act 1989 and looking after them in more appropriate circumstances than in criminal justice detention. I remind the Committee that we are talking about defendants who are being detained not for the classic justifications that they would commit further offences, interfere with witnesses and so on, but for their own protection. Of course, the criminal justice estate is not a place of safety or protection for anyone.
I did not hear a reply to my question about how this can be justified under Article 5 of the European Convention on Human Rights, but perhaps my noble friend the Minister could drop a note on that and offer it to other Members of the Committee. There will not be too many to send it to because there are not many Members here, but I would be hugely grateful for that.
The noble Baroness, Lady Hamwee, had it right when she talked about a Victorian hangover. There are too many Victorian hangovers in this area of law and policy, and I know that my noble friend Lord Timpson is well aware of that. The thrust of the Bill, in general, is about departing from such Victorian hangovers, such as social death and locking people up and throwing away the key. I urge further reflection.
If I am a member of a criminal gang who wants to turn King’s evidence but I am not charged with a minor offence, I will have to be put in a safe house, and there are schemes and measures to do that. But if I happen to be charged with a low-level offence that does not attract a custodial penalty, I am told that it is a last resort and that I am going to be locked up in a prison system where I will be more at danger from the criminal gang than I ever would be in a safe house. These are rather disappointing arguments from members of the Committee who, on reflection, may think again. I shall certainly return to this on Report, but I beg leave to withdraw my amendment.
Lord Timpson (Lab)
I thank the noble Lord, Lord Marks, for this amendment, which seeks to give courts an express power to suspend the driving licence of individuals charged with specified driving offences as a condition of bail. We recognise that driving offences can have devastating consequences for victims and for their families and friends. Driving while under the influence of alcohol and drugs is a serious offence with potentially life-changing consequences.
There are already robust powers available to the police and the courts to impose bail conditions where there is a risk to public safety. This includes restrictions on driving where appropriate. In certain cases, courts may also impose an interim driving disqualification before sentencing. Road safety remains an absolute priority for this Government. The Department for Transport will shortly publish a new road safety strategy, and the Secretary of State for Transport has indicated that this will include a review of motoring offences. While I appreciate the importance of the issue raised by the noble Lord, given the forthcoming strategy and existing powers available I urge him to withdraw this amendment.
Lord Marks of Henley-on-Thames (LD)
I ask the Minister to consider this. The power to suspend that is sought by this amendment would be a power exercisable by the court and therefore reportable to the DVLA, as a result of which the driving licence would be formally withdrawn. I am not sure that is true of a ban on driving imposed by the police as a part of bail. That is the importance of the suspension that I suggest.
Lord Timpson (Lab)
I thank the noble Lord and will very happily meet with him next week to discuss that, as I suspect that there may be other matters that we wish to discuss on this Bill. I would be very appreciative of that.
Lord Marks of Henley-on-Thames (LD)
Pending those discussions, I beg leave to withdraw my amendment.
Lord Timpson (Lab)
I am grateful to the noble Baroness, Lady Hamwee, for her amendment and her continued interest in the Women’s Justice Board. I am very proud to chair it and drive its work forward. Noble Lords will be pleased to know that it is going well and I am very fortunate to be working alongside so many talented experts.
This amendment seeks to ensure parliamentary oversight of the board’s activities and outcomes, which would have the effect of subjecting the board to parliamentary scrutiny. As the noble Baroness knows, like her, I have a great interest in women’s justice and fully recognise the importance of transparency in this area. But Parliament already has well-established mechanisms to hold the Government to account, including through parliamentary Questions and Select Committee inquiries.
Reforming the way women are treated in the criminal justice system remains a keen ambition for this Government and for me personally. The expertise provided by the Women’s Justice Board is an important part of shaping our approach to the wider justice system. Although we cannot accept this amendment today, I assure the House that we are committed to keeping Parliament informed and will consider how best to provide periodic updates on the work of the board through appropriate channels. I suspect that one of the best ways we can update noble Lords is through the work we do and the results we get. I hope that this reassurance will enable the noble Baroness to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, indeed, the results are what matters. I beg leave to withdraw the amendment.